The trial for a man accused of drug trafficking and firearms charges may hinge largely on the search of a single bag in the front seat of a vehicle he was driving.
As lawyers made closing remarks on the voir dire — a trial within a trial to determine admissibility of evidence — in Warren Taylor Johannesen-Quail’s trial, arguments ultimately focused most on the matter of the search of the front seat bag, in which a shotgun shell was found.
Finding that shotgun shell, in turn, led to charges of breaching a court ordered weapons prohibition and further search of the vehicle, turning up a sawed-off shotgun and various quantities of heroin and fentanyl.
Related: Penticton trial kicks off on sawed-off shotgun, trafficking allegations
Defence lawyer Michael Patterson argued the search of that bag had been extraneous to a search of the vehicle Johannesen-Quail had occupied. He argued it didn’t fit within the scope of a search for the vehicle’s ownership after Johannesen-Quail was arrested for driving while prohibited.
Cpl. Scott Vanevery and Const. Kyle Richmond with the Penticton RCMP’s Targeted Enforcement Unit, which targets frequent offenders, had stopped Johannesen-Quail after seeing him driving a vehicle at a problem property on Penticton Avenue.
Richmond first searched the front area of the car, but did not find the ownership papers of the vehicle. Vanevery then searched the vehicle as another officer arrived with a computer in his vehicle for Richmond to search the vehicle’s plates.
Vanevery searched the same components as Richmond had before searching a bag in the front seat of the vehicle, finding the shotgun shell. Because Johannesen-Quail had a court-ordered weapons prohibition, he was then arrested for a breach of a court order and a deeper search of the car ensued, producing the firearm and drugs.
But Patterson argued searching the bag, described as a small, camera-sized bag by Vanevery, did not comply with section 8 of the Charter of Rights and Freedoms, which protects against unreasonable search and seizure.
A police search, per Supreme Court of Canada rulings, must be incidental to the charge that has been laid, and Patterson argued the bag was not likely to hold ownership papers for the vehicle.
“(Vanevery) went back on his own volition … and he picked up the bag and he opened the bag and he searched the bag. He had to have some reasonable and probable grounds to search the bag,” Patterson said.
He added that Richmond had responded to a question of why he didn’t search the bag in his own search of the vehicle by saying he had looked in all of the obvious places.
Crown lawyer Ashleigh Wilson noted some case law in which searches of bags inside vehicles during traffic stops that had led to more serious charges were deemed to be within the scope of the officers’ mandate in an unwarranted search.
However, Patterson noted that in two of those cases, there had been additional evidence to support searching those bags. In one an officer said he had glimpsed what looked like crack-cocaine in an open bag on the back seat while looking through a window of the car.
Wilson also argued to the court that because the vehicle did not belong to Johannesen-Quail, there was a diminished expectation of privacy on his part when it came to police searches. She added there was a need to find ownership of the vehicle so police could determine if it were stolen or whom to contact when it was impounded.
In his submissions, Patterson also argued the entire encounter between police and Johannesen-Quail had been a “ruse” by police to find arrestable evidence on him. He argued that the officers did not have any concrete evidence to present for their suspicions that Johannesen-Quail had been driving without a valid licence.
Asked in court about that, Vanevery could not give any particular instance as evidence for his suspicion, but said he and Richmond both had the same suspicions.