A 23-year-old man facing drug charges could be acquitted after a judge ruled Burnaby RCMP officers violated his Charter rights by detaining and searching him unlawfully and taking too long to let him speak to a lawyer.
On June 22, 2017 at about 11:35 a.m., Luis Fernando Abarca was sitting reclined and out of view in a Honda Accord in a Lougheed Town Centre parking lot, according to testimony heard in B.C. Provincial Court.
The car was off but the car’s brake lights were on.
That caught the attention of Burnaby RCMP Const. Aaron Cheng.
He ran the vehicle’s plate and saw the registered owner had a Chinese name, a history related to drug trafficking and no driver’s licence.
He told the court he stopped his cruiser behind the Accord, put on his lights and approached the car to check the status of the occupant’s driver’s licence.
When he saw Abarca, Cheng noted he didn’t match the photo of the registered owner.
And, when he asked for his licence, he said Abarca began rummaging around, checking around the centre console and the front leg area, and moving things from one hand to the other.
One place he didn’t check was inside a wallet he was holding in his hand, according to Cheng, and that struck the officer as odd.
Cheng said he became worried about his safety because he didn’t know if Abarca was trying to get a weapon.
He told Abarca to stop rummaging and told him he was being detained for officer safety.
Abarca got out and was told to face the vehicle.
Abarca resisted, according to Cheng, and a struggle and foot chase ensued.
It all ended in Abarca’s arrest.
While he waited in the back of a police cruiser, a search of the Accord turned up a clear plastic bag with smaller baggies of drugs inside, along with money, three cell phones and a wallet.
Cheng then told Abarca he was under arrest for possession for the purpose of trafficking, and for several counts of breaching a court order.
Abarca said he wanted to talk to a lawyer.
That didn’t happen until two hours and 40 minutes later.
Abarca’s lawyer, Sandi Janicki, argued that delay violated Abarca’s right to get legal counsel “without delay.”
Janicki also argued Cheng had no right to detain Abarca to check his driver’s licence in the first place since Abarca was not “operating” a motor vehicle – and that made the search of his car unlawful too.
B.C. Provincial Court Judge Reginald Harris agreed.
In a ruling last month, he concluded police failed to give Abarca immediate access to counsel and their failure to do so couldn’t be justified by the circumstances of his arrest.
Harris further concluded Cheng had no right to detain Abarca to check his driver’s licence because Abarca was not operating a motor vehicle.
“The only ‘system’ that was activated were the brake lights,” Harris said. “In my view, the brake lights do not constitute a system integral to the operation of the motor vehicle.”
Because the detention for the purpose of checking Abarca’s licence was unlawful, so too was the search of the Accord for his phones and wallet, Harris ruled.
But the drugs found inside the vehicle were not discovered because of an unreasonable search, Harris concluded, because they were in the handle area of the interior side of the driver’s side door and “clearly visible to all members of the public who happened to walk by” when the door was left open after Abarca got out.
Harris will now hear arguments on Oct. 28 on whether or not his findings mean the evidence against Arbarca should be allowed
If it isn’t, he will be acquitted. If it is, his trial will continue.
Burnaby RCMP is reviewing Harris’s decision.
“We respect and appreciate the decision of the court,” spokesperson Cpl. Daniela Panesar said. “We will now take the necessary time to review the decision after which we will be in a better position to determine what, if any, further action may be required.”