Privacy right extends to drugs in luggage: judge: Via St. John's Telegram of The National Post Company

ST. JOHN'S, N.L. -- Socks, undies and a toothbrush aren't the only things considered private when checking luggage at the airport. So are illegal drugs and wads of cash, according to a ruling by the Supreme Court of Newfoundland.

A judge in St. John's, Newfoundland recently decided that a man found with 14 grams of cocaine, 62 ecstasy pills and $11,000 in cash had an expectation of privacy when he checked his luggage prior to a flight in 2006.

The ruling means the man can continue his legal battle to have the evidence against him thrown out.

Brian Crisby, of Eastport, N.L. is charged with possession of ecstasy and cocaine for the purposes of trafficking. On Nov. 24, 2006, a police dog detected the drugs in Mr. Crisby's checked baggage in St. John's after his flight from Fort McMurray, Alta. Police were acting on a tip.

Mr. Crisby's lawyer, Mark Rogers, is trying to have the drugs and cash thrown out as evidence by arguing that the seizure was a violation of Mr. Crisby's charter right against unlawful search and seizure.

Mr. Rogers' first step is to prove that Crisby had an expectation of privacy over the contents of his luggage when he checked his bags in Fort McMurray.

Crown prosecutors argued Mr. Crisby gave up all his privacy rights when he voluntarily checked his baggage, because he knew air travel is subject to strict controls, including security screening.

The problem with that, Justice Robert Hall ruled, is that airport security laws are designed to protect travellers against weapons and explosives, not to catch illegal drugs. He described the Crown's argument as an "incremental intrusion upon privacy rights."

"Obviously, searching or screening the accused's bags for the presence of drugs does not fit into the category of purposes for which screening was authorized," wrote Mr. Hall.

"I conclude that Brian Crisby had a reasonable expectation of privacy with respect to the contents of his luggage, save and except for searches by [airport] personnel for items that could be used to jeopardize the security of an aerodrome or aircraft. The drugs and money found in his baggage, which are the subject of this proceeding, are not such items and thus Brian Crisby had a reasonable expectation of privacy."

Mr. Rogers described the win as clearing the first hurdle toward having the charges dropped.

"That's our ultimate goal," said Rogers.

"The charter application we've filed is to exclude evidence. [If successful], the Crown would decide if they are to proceed without that evidence, but I highly doubt that they would."

The case is expected back in court in January.

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