Pubdate: Sat, 05 Aug 2000 Source: New Brunswick Telegraph Journal (CN NK) Copyright: 2000 New Brunswick Publishing Company Contact: http://www.nbnews.com/telegraphjournal/ Author: Bob Klager LAWYER FOCUSES ON RIGHTS VIOLATION DURING ECSTASY HEARING The only evidence against a man charged in connection with Atlantic Canada's largest-ever Ecstasy seizure was obtained through a serious breach of rights and should be excluded from trial, says his Nova Scotia lawyer. During an often highly charged voir dire hearing at provincial court in Woodstock Friday, Mike Owen argued police had no grounds or warrant for searching 34-year-old Richard Brian Bagnell's duffle bag following a single motor-vehicle crash along the TransCanada Highway May 8. RCMP found more than 8,000 pills of the notorious 'rave drug' in the bag and subsequently charged the Port Hawkesbury, N.S. man with possession of Ecstasy for the purpose of trafficking. "This is a flagrant violation of Mr. Bagnell's rights as a Canadian citizen," said Mr. Owen, adding the seriousness of the alleged breach exceeded the seriousness of the discovery, described to the court by an expert undercover drug enforcement officer as a $60,000 to $80,000 wholesale-value cache of Ecstasy and methamphetamines manufactured by professionals. "Yes, it is a serious offence; there's a lot of drugs there worth a lot of money," said Mr. Owen. "But I think we've hit a line where the officer was using police safety as an excuse. "Officer safety is a bogus argument here." It was the second and final day of testimony at a trial within a trial to determine the admissability of evidence in the case. Judge Henrik Tonning had heard testimony from investigating officer Const. Sean O'Brien that he was concerned for his safety after observing more than an hour of Mr. Bagnell's suspicous behaviour with the duffle bag following the crash. But Mr. Owen accused the officer of "glaring contradictions" between his testimony and his actions early that spring morning. "The conduct of officer O'Brien does not reflect a genuine and bonafide concern for officer safety," Mr. Owen said. "Const. O'Brien was suspicious about drugs and he wanted to get in the bag." His suspicion of the bag grew only from an accumulation of events after arriving at the scene of the crash near Nackawic, said Const. O'Brien. In addition to Mr. Bagnell's immediate and lasting refusal to part with the bag, an exisiting charge of trafficking Ecstasy revealed during a CPIC (Canadian Police Information Centre) check on the defendant as well as his admitted involvemment in promoting raves in Halifax and his significant knowledge of Ecstasy offered signs something wasn't right, he said. "Where there's drugs there's weapons," said Const. O'Brien, explaining his insistence on searching the bag for safety reasons. When he finally opened the sack while Mr. Bagnell was being tended to at Carleton Memorial Hospital in Woodstock, the officer discovered several packets of pills and said he immediately closed and secured the bag until he could obtain a warrant. Federal prosecutor Susan Bour cited case law urging the court to look at the point of view of the police officer at the time he made the search. She argued Const. O'Brien's actions and concern for safety were reasonable in light of Mr. Bagnell's "more than passing attachment" to the bag. "Part of [Const. O'Brien's] sensitivity to the drug issue was that one month earlier, he had dealt with an informant who was killed," she added. Judge Tonning has reserved judgment on what evidence may go to trial until Sept. 4. - --- MAP posted-by: Richard Lake