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THUNDER BAY — The Ontario Court of Appeal has ordered a new trial for a man charged with trafficking because Thunder Bay Police searched his jacket without a warrant.
On the basis of the discovery of Fentanyl pills, Abel Solano-Santana, now 41, was convicted of possession for the purpose of trafficking in June 2018.
He was sentenced to eight years in prison, but received three years credit for presentence custody.
Solano-Santana had been identified as a trafficker during Project Coast, a major drug investigation started in 2015 in northeastern Ontario by the OPP and Nishnawbe Aski Police Service.
The Ottawa man was arrested in April 2016 on outstanding warrants after the task force tracked him to Thunder Bay, and notified city police that he was in an SUV driven by a woman.
Solano-Santana was out on bail, one of the conditions of which was that he remain in Ottawa.
Thunder Bay police initially stopped the SUV for a taillight violation.
After arresting Solano-Santana on the warrants, handcuffing him and placing him in a police cruiser, one of the arresting officers returned to the SUV and retrieved a jacket that was on the back floor.
He also searched the jacket pockets, finding a Ziploc bag with 495 Fentanyl pills.
The officer testified that he took it upon himself to look for and gather the man's belongings, anticipating that Solano-Santana would be held in custody overnight.
He also testified that he understood he was entitled to check the area around where Solano-Santana had been sitting for weapons "for officer safety," even though the suspect was already secured in the cruiser.
A further search of the vehicle as well as the driver then turned up two cellphones that contained text messages "consistent with language used in drug trafficking."
Members of the OPP task force later obtained a search warrant for the hotel room where Solano-Santana and the driver had been staying, and discovered thousands of Fentanyl pills.
At his trial, Solano-Santana's lawyer argued unsuccessfully that virtually all the evidence produced by the Crown should be excluded under the section of the Charter of RIghts and Freedoms because the evidence was obtained in a manner that infringed on his rights.
Before the Court of Appeal, he argued that the warrantless search of the vehicle he was a passenger in, the seizure of his jacket and the search of the jacket constituted an unreasonable search and seizure under Section 8 of the Charter.
The appeal court agreed that it is "arguable" that all the evidence seized from the SUV was tainted by the Charter violation.
To the knowledge of the two officers, the court said, "the woman driving the vehicle would be on her way, wherever she was going, once the Highway Traffic Act matter had been addressed. The police had no authority to prevent the driver from leaving with the vehicle [after that]. Equally, the police had no power to itemize the contents of the Jeep, or, more specifically, to look for, and take possession of, the appellant's personal property."
The appeal court also said it's arguable that, if the discovery of pills in Solano-Santana's jacket were removed from the affidavit police used to get a warrant to search the hotel room, the issuance of the warrant would not be justified, rendering it unconstitutional.
Fentanyl is an opioid that is up to 100 more times more toxic than morphine, making the risk of an accidental overdose much higher than other drugs.
