Use of informant in drug trafficking case under criticism

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A drug trafficking case — in which evidence was tossed out of court and the charge against the accused dropped — has shed light on the use of police informants.

The accused was found with about four ounces of cocaine, but the man’s lawyer, Jonathan Pinx, says the case isn’t about the results police get — it’s about the steps they need to take to prevent wrongful arrests.

“It’s not about this one individual,” Pinx said during an interview on Wednesday. “It’s about protecting every citizen and everyone’s rights as protected by the Charter.”

The case is that of Stevens Freddy Marcelin, a former Brandon University Bobcats basketball player who had a charge of possession of a controlled substance for the purpose of trafficking dropped. The charge was stayed due to a judge’s findings during a voir dire, a hearing on the admissibility of evidence.

As previously reported, Justice John Menzies tossed out drug evidence after ruling that a Brandon Police Service officer breached the Charter of Rights and Freedoms with an “arbitrary arrest.”

In a written decision, Menzies said he was concerned that the officer had quickly “arrested the first tall black man he saw in the area.”

Menzies outlined the evidence in his decision:

On Jan. 25, 2013, a BPS officer got a tip from a paid informant that a very tall, thin black man who had played basketball was selling cocaine in the parking lot of the 7-Eleven at 34th Street and Victoria Avenue.

That officer considered the source reliable, as the informant had proven reliable in the past.

Two other officers were dispatched, and shortly after arriving Const. Jason Medwechuk arrested Marcelin at the end of a parking lot that services two strip malls, some 60 to 100 metres from the 7-Eleven. A search of Marcelin turned up 4.1 ounces of cocaine.

The arresting officer hadn’t seen Marcelin committing any criminal behaviour prior to the arrest.

But Medwechuk testified that Marcelin seemed nervous, and there were no other tall black men in the area.

Based on that, and the informant’s tip, he arrested Marcelin.

The officer’s initial notes didn’t refer to Marcelin’s behaviour and, months after the arrest, the officer was asked to make supplemental notes of what happened in which he described Marcelin as acting nervously.

It was in those supplemental notes that the nervous behaviour was first recorded.

Menzies wasn’t convinced that Marcelin was acting nervously. Even if he was, the judge added, it wasn’t reasonable grounds for arrest. The arrest was therefore “arbitrary” and a breach of the Charter of Rights and Freedoms, and the search also unreasonable.

Menzies therefore excluded the cocaine from being evidence at trial, which he acknowledged to be “catastrophic” to the Crown’s case.

Shortly after the decision was issued, the Crown attorney asked that the sole charge against Marcelin be dropped. Menzies stayed the charge.

Pinx declined comment at the time Menzies’ decision was released in June, but was willing to comment now that the case is resolved.

He said the issue was not one of race, but an error by police on the proper use of an informant.

“It’s more just about the due diligence and the process that is required of police in these circumstances,” Pinx said.

Menzies analyzed the reliability of the tip, as grounds for a warrantless search, in his written decision.

Under case law, the tip needs to be detailed, the informant’s source of knowledge must be considered and his or her reliability based on past performance assessed. The tip needs to be corroborated with police investigation.

The result of the search, after the fact, isn’t evidence of reliability.

In this case, Menzies found that the informant was credible based on previous tips.

However, the informant hadn’t disclosed the source of the information, so it was impossible to tell if it was first-hand knowledge or gossip.

Menzies also took issue with the lack of investigation done by police to corroborate the tip.

The tip was that a very tall, thin black man who had played basketball in the past was selling cocaine at the 7-Eleven parking lot. The sale was ongoing, so police attended immediately.

It seems the information that the suspect had played basketball wasn’t passed to officers who attended the scene.

One officer quickly searched the store, but didn’t find a black man or the sale of cocaine taking place there.

Medwechuk found Marcelin in his car 60 to 100 metres from the store.

While the officer took down the licence plate number, he didn’t search it to determine the identity of the suspect, or whether he had a history of involvement in the drug trade.

The observations at and around the 7-Eleven didn’t corroborate the tip, Menzies ruled.

As Medwechuk hadn’t witnessed any criminal behaviour by Marcelin before arresting him, and nervousness wasn’t sufficient reason, Menzies concluded the arrest was arbitrary.

The description of a tall, black man was too vague, Pinx added. It could have fit many men — especially as there was no indication that the suspect lived in Brandon.

A message left on Wednesday for the BPS requesting comment wasn’t immediately returned.

Police have previously stated that they don’t comment on court decisions.

» ihitchen@brandonsun.com

» Twitter: @IanHitchen