The BC Court of Appeal has denied the appeal of a man who was charged with dealing fentanyl and heroin in Vernon in 2017.
Sung Hwan Choi was found guilty of possessing fentanyl and heroin for the purpose of trafficking at the Vernon law courts in November 2019. The Surrey man was sentenced to 18 months in jail followed by 12 months probation.
Choi had appealed that decision on the grounds that his Charter rights were violated during his arrest, when police questioned him and strip-searched him. His defence also argued that the trial judge erred by ruling that the drugs found in the vehicle Choi was a passenger in were admissible and that the trial verdict was unreasonable.
In the appeal decision issued Monday (Nov. 1) in Vancouver, Madame Justice Dickinson said there is no reason to interfere with the trial judge’s decision to admit the drugs and the statement, and the verdict was not unreasonable.
“In addition, the search was not a strip search given that strip searches are limited to situations where the area of the body inspected is inherently private, whether exposed or covered by an undergarment,” Dickinson wrote.
Choi was arrested on Oct. 27, 2017, when police were investigating dial-a-dope drug trafficking in Vernon. Police observed a vehicle occupied by a front seat driver and the appellant in the passenger’s seat, and based on their observations, decided to arrest the occupants.
“As Cpl. Fradette approached the passenger side of the vehicle to make the arrest, Cpl. Pollock noticed Mr. Choi manipulating something around his pocket or pants. He pointed this out to Cpl. Fradette, who saw a small package he believed to be drugs located between Mr. Choi’s legs on the car seat. Cpl. Fradette told Mr. Choi that he was under arrest, directed him to get out of the car and handcuffed him, then asked Const. Catton to watch him while he retrieved his notebook. When he returned, Cpl. Fradette provided Mr. Choi with his Charter rights and the police caution. In response, Mr. Choi asked to speak to a lawyer,” the judgement reads.
Catton conducted a pat-down search of Choi and felt a bulge in his jacket pocket, where he found a bag containing 44 colour-coded packages of cocaine, methamphetamine and a heroin and fentanyl mixture. The jacket also contained a wallet, $70 cash and some cannabis.
At the police station Cpl. Pollock had Choi remove his shoes and jacket. Pollock then cut the drawstring on Choi’s pants for safety reasons. He then lifted Choi’s shirt to see if he was hiding anything underneath it, making a small part of the waistband of Choi’s underwear visible.
Pollock pulled the waistband of Choi’s pants away from his body to examine it for weapons and drugs. In doing so, he was able to see the top of Choi’s underwear all the way around his waist. Pollock ran his fingers around the waistband and visually inspected it to check for hidden items. Nothing was located in the course of the search.
Shortly after the search, Choi admitted he was selling drugs that day.
The trial judge ruled that the package of drugs found between Choi’s legs upon his arrest was in fact for sale.
“I conclude he had sold drugs that shift more than once. I repeat the evidence: the car had gone to three known ‘hot spots’ at the start of a selling shift, he admitted to one sale, he went directly to another ‘hot spot’, the Blue Moon Esso … I conclude Mr. Choi would have drugs ready for the next sale. That is why he had the package of drugs out that (Cpl.) Fradette saw between his legs on the passenger seat.”