No rights breached in Penticton trafficking, firearm trial, judge rules

The trial for a man accused of possessing drugs for the purpose of trafficking and a sawed-off shotgun while prohibited will go on after a judge ruled a search of the car he was driving was authorized.

The defence of Warren Taylor Johannesen-Quail attempted to argue that he was arbitrarily detained on May 25, 2016, claiming police had used a traffic stop to check for a driver’s licence as a ruse to search him for other potential crimes. Defence also argued a search of a bag in the vehicle he was driving was irrelevant to a search for the vehicle’s ownership papers.

The search of that bag in the front passenger seat of the vehicle had turned up a shotgun shell and a small scale, which led to a further search of the vehicle. The deeper search produced a sawed-off shotgun and various quantities of heroin/fentanyl and cocaine in a duffel bag in the trunk of the vehicle.

Justice Alison Beames said in her reasons for judgement at the close of a voir dire — a trial within a trial to determine the admissibility of evidence — she did not buy the defence argument that the detainment and search of the bag did not violate his charter rights.

“In this case, I am satisfied that the initial stop of the vehicle was, in fact, for reasons related to driving a car. Both officers had had extensive dealings with the accused in the past. Both believed that he was not validly entitled to operate a motor vehicle,” Beames said.

While Johannesen-Quail had driven mostly on a private property, which would not have been a driving offence, he then turned onto Penticton Avenue for about 20 metres before driving back onto a private driveway.

A defence argument that police had previously stopped a vehicle Johannesen-Quail was riding in the passenger seat of and searched him was not evidence of the traffic stop being a ruse, Beames ruled.

“I find that the initial stop was valid. Police were entitled to demand the production of a valid driver’s licence.”

Beames also ruled in favour of the Crown on the search of the bag, stating that it did not constitute an unreasonable search and seizure.

“The accused was prohibited from driving. The officers had not known him to drive or own a vehicle for some time before the arrest. The VIN (vehicle identification number) under the windshield was covered by a small piece of paper. The owner needed to be located if possible,” she said.

“The real issue is whether the search of the bag found on the front seat of the vehicle was a reasonable component of the search incidental to arrest. I accept the evidence of Cpl. (Scott) Vanevery as to why he opened the bag.”

Beames added that because the vehicle did not belong to Johannesen-Quail, he had a diminished expectation of privacy in a search of the car.

Further, Beames ruled that had she found there to be a charter breach in the search, she would not have excluded the evidence produced from the search from the trial.

Patterson said the defence would not be entering a guilty plea. He is expected to argue that while the offending items, the shotgun and illicit substances, were found in the vehicle, they did not belong to Johannesen-Quail, nor was he aware of their presence.

The accused testified in the voir dire that the vehicle belonged to the girlfriend of a friend, and that, having a mechanical background, he was only driving it to test for potential mechanics issues in the brakes.

Crown lawyer Ashleigh Wilson told the court at the outset of the trial she a DNA expert would testify that partial DNA matches for Johannesen-Quail were found on the shotgun and a full match was found on the shotgun shell loaded into the gun.

However, Patterson said in court Thursday morning he may call upon police to testify on why the remainder of the items in the duffel bag, including clothing, the false-bottom pop can that contained the drugs and lip balm, were not tested for DNA evidence.