October 18, 2016 - 8:00 PM
'THE ATTEMPTED COVER UP... WAS INTENTIONAL.'
KAMLOOPS - A Kamloops man who is on trial for a charge of possessing cocaine for the purpose of trafficking has won an application to have evidence tossed out.
Zobair Afzali argued that his rights were violated by Const. Eric Thompson when Afzali was stopped in his rental car in Barriere nearly two years ago.
Afzali was travelling on Highway 5 when Thompson passed by him, driving the other way. He was in an unmarked police car and had a trained police dog named "Whiskey" with him.
According to the judge's decision, Thompson described the weather as cool, with snowy and slippery road conditions. Thompson said he became interested in the vehicle because it was going "just below" the speed limit and most people on the road did not travel under the speed limit.
Thompson turned his car around and caught up to the vehicle. He looked up the driver's license plate and began recording on his dashcam. The judge's decision reads that video was played in court and shows the interaction between Thompson and Afzali.
The license plate search indicated the rental vehicle belonged to Van City Motors and had been linked to 24 recent police investigations, the majority of which involved drugs.
Thompson thought the number of police files was very unusual and noted he had never seen that many files linked to one vehicle. Despite the number of files, Thompson didn't open or read any of them.
He was also concerned the vehicle didn't have winter tires on it.
As the vehicles entered Barriere just before midnight Nov. 17, Thompson activated his emergency lights and Afzali pulled over. He testified he pulled the vehicle over to check for a driver's license and determine if the vehicle had winter tires.
Thompson approached the car, noting Afzali was the only occupant and he appeared to have just lit a cigarette. He told the driver he was stopping him to check for winter tires and asked for Afzali's driver's license.
The officer noticed Afzali's hand was shaking when he passed his identification over. Thompson asked Afzali to get out of the car and thought it was unusual that Afzali picked up a can of Red Bull and didn't extinguish his cigarette.
Thompson pointed to the winter tires, telling Afzali the front tires had the proper logos but the rear tires didn't. He asked Afzali if he owned the vehicle and he said it was a rental.
Afzali gave Thompson the rental agreement and the officer noted his hands were still shaking and he appeared to be getting more nervous. Thompson called Afzali one of the most nervous people he's dealt with.
Thompson asked Afzali to return to the rental car while the officer went back to his police cruiser. Afzali stayed outside the vehicle, smoking, pacing and yawning. He then pulled out a sandwich and started eating it.
The officer looked up Afzali's name and found two police files. One was for a motor vehicle infraction and the other was for being the driver in a drug trafficking matter. Thompson found he had also been convicted of forcible confinement and robbery in 2013.
He wrote Afzali a ticket for failing to show his "N" on the car. Thompson also looked over the rental agreement which had a smoking prohibition.
Thompson returned to Afzali's car and told him he was being detained for an investigation into drug possession. After Afzali was handcuffed, he collapsed against the hood of the police car. Thompson saw the suspect's eyes roll back and he called an ambulance.
While paramedics inspected Afzali, Thompson took the police dog Whiskey out of the car and deployed him. Shortly after, Whiskey gave confirmation he had detected narcotics inside.
Thompson searched the trunk and in the passenger-side fender and found a vacuum-sealed bag of cocaine wrapped in a towel and two plastic bags. Afzali was arrested for possession for the purpose of trafficking.
The cocaine weighed 1.2 kilograms, worth about $60,000, according to police.
In cross-examination, Thompson's first notes only detailed the license plate search and results, not the winter tires concern or speed concern. He does make a reference to the winter tires in a following note.
But in his decision, provincial court Judge Christopher Cleaveley says Thompson stopped Afzali on a 'hunch' after seeing the license plate search results.
"Under the guise of a motor vehicle stop, Const. Thompson detained Mr. Afzali to satisfy his curiosity regarding the vehicle," Cleaveley said. "The attempted cover up by Const. Thompson was intentional and makes the breach even more egregious."
Cleaveley said he recognized a charge would be dropped, but justice needs to be done for individuals who have had their rights breached.
"Even though an acquittal will flow from exclusion of the evidence, it is important to maintain high Charter standards," Cleaveley said. "To admit the evidence would bring the administration of justice into disrepute."
Afzali is due in court later this week. It's not yet known if his charge will be stayed or downgraded.
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