A Penticton woman charged with two counts of possession of a controlled substance and one count of possession for the purpose of trafficking has been found guilty on all counts.
Jennifer L. Montgomery was arrested on June 22, 2016 after they nabbed Natasha Clifton outside Montgomery’s property on a breach of a court order. After Clifton was arrested, a search found a large quantity of drugs in her purse and a weighed-out portion in her bra, and she was taken into custody.
There, her phone was searched, which found messages to Montgomery, which a judicial justice of the peace deemed worthy of a search warrant on Montgomery’s property.
There, Cst. Chad Jackson testified on the search of a safe found in Montgomery’s home, where various drugs, including cannabis, heroin and methamphetamine, as well as a shotgun shell were found.
Jackson made note of a hydromorphone pill, which was tested to be pure, but also noted suspected heroin, which, when tested by Health Canada, found fentanyl in the mix. Some of it also was found to be caffeine and acetaminophen.
Police also found about $1,500 in bills found in a bed in the master bedroom, Jackson said.
In her trial, Montgomery’s lawyer, Michael Patterson, began the fight with a voir dire — a trial within a trial to determine admissibility of evidence — to try to declare a search of Montgomery’s acquaintance’s phone unlawful.
In law, police are somewhat limited to how they can search one’s phone when making an arrest. According to an Acumen Law blog post, there are four conditions to searching a phone: the arrest must be lawful, the search “must truly be incidental to the arrest,” the nature and extent of the search must be confined to its original purpose and police must take detailed notes of the search.
On the second and third points, “incidental to the arrest” effectively means it must be a prompt search of the phone, and the extent of the search should not go beyond recent text messages or emails.
Patterson largely argued on those concepts, saying the search must have been more than a cursory glance, as Montgomery and Clifton used less conventional apps for texting, like WhatsApp.
That, Patterson argued, qualified as a breach of Montgomery’s section 8 charter rights, which largely cover protections against unreasonable search and seizure.
On those grounds, he had hoped to cross-examine Jackson on his filing of an information to obtain a search warrant, but the judge declined and was heavily critical of Patterson’s charter challenge.
After a three-day trial in Penticton, the matter was moved to Kelowna, due to a lack of court space in Penticton, which added to a growing number of trials to vacate Penticton’s courthouse.
The reasons for Weatherill’s guilty verdict were not immediately available.
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Dustin Godfrey | Reporter
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