



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Mollazadeh,







2006 
          BCCA 35



Date: 20060123





Docket: CA032246

Between:

Regina

Respondent



And

Shahram 
    Mollazadeh

Appellant














Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Madam Justice Ryan




The 
          Honourable Mr. Justice Mackenzie



Oral Reasons for Judgment




T.W. 
          Rodocker


Counsel for the Appellant




W.P. 
          Riley


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




23 January 2006





[1]

RYAN, J.A.
:  The appellant was convicted on 10 June 
    2004, in the Supreme Court of one count of possession of a controlled drug, 
    "crack" cocaine, for the purpose of trafficking.

[2]

The drugs were found in the appellant's car after the appellant had 
    been stopped by the police and his vehicle searched.

[3]

The appellant says that the drugs found by the police ought not to 
    have been admitted into evidence because they were found by the police as 
    a result of an arbitrary detention.

[4]

The evidence at trial revealed that the appellant and two of his friends 
    got into the appellant's black four-door Jetta in the 900 block of Hornby 
    Street at about 1:55 a.m. on 21 October 2002.  They were returning 
    to West Vancouver.  At almost the same time, Constable Berry in a police van 
    nearby received a priority call over the police radio that there had been 
    a shooting at the Urban Well nightclub near Hornby and Nelson Streets.

[5]

The following paragraphs from the reasons of the trial judge on the
voir dire
tell the rest of the story:

[4]        As a result of hearing the priority one call, Constable Barry 
    offered to take up a containment position.  He drove to the area and parked 
    on Hornby Street just south of Nelson.  When in that position, Constable Barry 
    heard on the police radio that a 911 caller had reported that persons 
    involved in the shooting were leaving the area in a black four-door vehicle 
    and that the vehicle was going through the intersection of Hornby and Nelson;  
    it was travelling north on Hornby Street.  The 911 caller reported that 
    the vehicle leaving the scene was at that moment passing a police vehicle.

[5]        As Constable Barry heard that broadcast, he observed a black 
    four-door Volkswagen Jetta pass him travelling north on Hornby Street at Nelson 
    Street.  He observed that there was a driver and a passenger and noticed a 
    jacket on the hook in the rear of the Jetta.  Constable Barry estimated that 
    his observation of the Jetta was simultaneous with his hearing the 911 caller 
    report on the police radio.

[6]        Constable Barry testified in chief that the Jetta appeared 
    to be accelerating and was passing other vehicles.  In cross-examination, 
    he agreed that he had made no note of the speed of the vehicle, but nevertheless 
    confirmed that the Jetta seemed to be accelerating, although he could not 
    estimate the speed with certainty.

[7]        Constable Barry followed the Jetta as it proceeded north on 
    Hornby and then turned left onto Georgia Street, heading west.  He broadcasted 
    his direction of travel and asked for assistance.  When the Jetta was about 
    to enter the Stanley Park causeway, Constable Barry activated the police wagon 
    lights and siren and pulled over the Jetta in the 1800 block of West 
    Georgia Street.  He testified that he waited until then because he was waiting 
    for assistance, since he believed the occupants of the Jetta had potentially 
    been involved in a shooting.

. . .

[11]      Constable Harty heard the police radio report of a shooting 
    outside of the Urban Well downtown at about 1:55 a.m.  He and his partner, 
    Constable Alonso, drove toward the shooting site.  En route, he heard that 
    the police had confirmed that a male had been shot in the leg.  He also heard 
    at about 2:03 a.m. that a witness had reported that a four-door sedan 
    driving north on Hornby Street was involved in the shooting and was passing 
    the nose of a parked police vehicle.  He then heard Constable Barry broadcast 
    that it was his police vehicle that the sedan had passed.

[12]      Constables Harty and Alonso followed the direction of Constable 
    Barry's travel broadcast.  Constable Harty recalled arriving at Georgia and 
    Denman at about the time that Constable Barry was pulling over the Jetta.

[13]      Constable Harty testified that the Jettas licence plate was 
    broadcast before he left the police vehicle.  He then got out of the passenger 
    side, drew his gun in the "low ready" position pointed at the ground, 
    and called out, Police.  Show your hands".

[14]      Constable Harty approached the passenger side of the Jetta and 
    motioned to the man in the front passenger seat to roll down the window.  
    He advised the passenger that there had been a shooting at the Urban Well, 
    that their vehicle was reported to be involved, and that he believed there 
    may be firearms in the vehicle.  The passenger got out of the Jetta and Constable 
    Harty motioned him to walk toward other officers who had arrived at the scene.

[6]

The appellant, his passengers and the vehicle were searched shortly 
    thereafter for weapons.

[7]

The appellant accepts, on the authority of
Mann v. The Queen
(2004), 185 C.C.C. (3d) 308 (S.C.C.), that the police have the power to make 
    an investigative stop where reasonable grounds to suspect are present.  He 
    also accepts that where the police have properly made an investigative stop 
    they may conduct a search for the purpose of the safety of the police or others 
    if the search is reasonably necessary.  The appellant says, however, that 
    sufficient grounds did not exist in this case to detain the appellant.

[8]

The appellant points to other evidence that apparently was also provided 
    by the dispatcher over the course of his or her transmissions.  The other 
    information was that a black male was suspected to be the shooter; that a 
    Corvette was a vehicle of interest; and that the caller said that six males 
    ran into a dark four-door sedan.  He says that these other reports weaken 
    the reliability of the evidence relied upon by Constable Barry and the other 
    police officers.

[9]

I cannot agree.  The trial judge had that information before her.  
    She made the following observations:

[44]      As I have noted, the accused contends that the police acted 
    on wholly insufficient information when they detained him, which the accused 
    says cannot meet the test of articulable cause.  I disagree.

. . .

[47]      In addition to knowledge of a confirmed shooting, the police 
    were informed that a dark four-door sedan was observed leaving the scene of 
    the shooting and was travelling north on Hornby Street.  Seconds later the 
    police were informed that a suspect vehicle was passing a police vehicle at 
    the intersection of Nelson and Hornby.  Constable Barry simultaneously saw 
    a dark four-door sedan pass his police wagon as he was parked on Hornby at 
    Nelson.

[48]      The accused argues that the police ignored information that, 
    if considered, would have alerted them to the possibility that the Jetta was 
    not reasonably involved in the shooting.  That information included the police 
    radio broadcast concerning a black Corvette, six male occupants in a four-door 
    sedan, and a black male suspect in a red t-shirt.

[49]      However, Constable Barry could not recall hearing that information.  
    He testified that, once he saw the dark four-door sedan pass him on Hornby 
    Street and heard that the suspect vehicle was travelling north on Hornby and 
    was passing a police vehicle at that location, he was then focussed on the 
    task of following that vehicle.

[50]      The police were responding to a high priority call, which calls 
    for immediate response.  They had a duty to check all leads.  They did not 
    have the luxury of waiting and synthesizing all the information available 
    to them.

[51]      When the police pulled over the Jetta, they knew that a shooting 
    had recently occurred at the Urban Well.  They had a description of a dark 
    four-door sedan.  They were told it was travelling north on Hornby Street.  
    The sedan was reported to be passing a police vehicle at the very location 
    Constable Barry was posted in his police wagon.  There was a reasonable concern 
    that the persons fleeing the scene of a shooting would have firearms in their 
    possession.

[52]      In my respectful view, that information constitutes, in the 
    urgent and heightened circumstances of this case, a combination of objectively 
    discernible facts that justified the police detaining the occupants of the 
    Jetta.

[10]

I am unable to say that the trial judge erred in law or in fact in 
    her analysis of the rights of the appellant. I would dismiss the appeal.

[11]

ROWLES, J.A.
:  I agree.

[12]

MACKENZIE, J.A.
:  I agree.

[13]

ROWLES, J.A.
:  The appeal is dismissed.  Thank you, counsel.

The Honourable Madam Justice Ryan


