A motorcycle seized by Saanich police without a warrant will remain a piece of evidence in the trial of a young man accused of rocketing a bike along the Trans-Canada Highway at more than 300 km/h and videotaping the stunt.
Randy George Scott, 26, denies being the driver of a blue Yamaha R1 that can be seen on a notorious YouTube video weaving through cars at high speed on the highway near Uptown, and maxing out the speedometer at 299 km/h by the time the bike hits Langford.
Scott is charged with one count of dangerous driving.
Soon after the YouTube video went viral, tips from the public led Saanich investigators to focus on Scott, and officers seized and impounded a motorbike from the parking lot of an apartment complex at 850 Admirals Rd., on April 13, 2012, one week after the highway joyride.
In court Tuesday, Crown counsel Steve Fudge conceded that Saanich police seized and searched the bike without a warrant.
“They probably could have gotten a search warrant. There is no evidence they were operating in bad faith,” Fudge told Judge Robert Higinbotham during a hearing on the admissability of the bike as evidence.
The Saanich officers acted with “urgency” to seize the bike out of concern it would be used again for dangerous driving, Fudge said. “Clearly the lawful approach would have been the proper approach,” he said. “There was a bona fide belief (Saanich police) were entitled to seize the motorcycle to prevent a repetition of events. It’s not quite good faith, but its not a willful violation of Charter rights.”
On Wednesday, after a day of deliberation, Higinbothom ruled the bike can be included as evidence at trial.
“A search involving one’s motorcycle is not personally intrusive, and does not demean the dignity of the defendant,” he wrote in his decision. “I find that there is not a particularly high expectation of privacy when the search is related to an object of personal property found in a parking lot and completely open to the elements.”
On Tuesday, Saanich police Const. Michael Bainbridge testified in a voir dire phase of the trial that he seized the motorcycle at 850 Admirals Rd. at the request of Const. Jon Cawsey, the investigating officer, and had it transported to Totem Towing’s secure compound.
Bainbridge told the judge he took the bike “in the interest of pubic safety” and that Cawsey was trying to get a search warrant.
Cawsey told the judge he moved to have the bike seized after the Saanich forensic identification section positively matched the bike at 850 Admirals Rd. with the bike on the YouTube video. Cawsey said he discussed the case with a superior officer and decided he had sufficient grounds to seize and tow the motorcycle without a warrant.
“I felt we needed to seize the bike quickly ... based on previous depictions of how it travelled,” Cawsey said in court. “A warrant was discussed but not obtained.”
Higinbothom said Cawsey had alternatives other than seizing the bike without a warrant.
“His reasons for (not attempting an alternative) do not stand up to scrutiny, given the availability of other reasonable, and lawful, means to achieve the desired result.
“The circumstances … constitute a very serious violation of the right to be secure against unreasonable search and seizure because Const. Cawsey wilfully took the action he did, knowing full well that a warrant application should be made,” Higinbothom wrote. “His conduct was deliberate, and in no way can be considered to have been done in good faith.”
The judge said another factor considered in determining whether or not to exclude the motorcycle was “society’s interest in having the case adjudicated on its merits.”
He acknowledged the case had attracted attention because of the YouTube video, “which shows in graphic detail the audacious, outrageous and extremely dangerous operation of a motorcycle in circumstances where innocent members of the driving public were put at grave risk by the motorcycle operator.”
Check out vicnews.com for updates to this story.
--with reporting from Kyle Slavin and Edward Hill
editor@saanichnews.com