Search of phone called into question

The methods Penticton police used to search phones connected to a drug investigation were again called into question on Thursday in B.C. Supreme Court. Jennifer Montgomery, 31, is facing one charge of possession of methamphetamine for the purpose of trafficking and two counts of simple possession of heroin and methamphetamine. Her trial began Wednesday.

Montgomery’s phone was seized by police after a search warrant was executed June 22, 2016, at her Penticton home, where RCMP Const. Chad Jackson testified drugs and paraphernalia associated with drug dealing were found.

Two days later, a search warrant was granted for police to search Montgomery’s phone, which defence counsel Michael Patterson argued was a violation of her right against unlawful search and seizure.

Patterson said police had the right through the search warrant to search for data on the phone, but not emails, Facebook messages and other correspondence stored outside of the device on the internet or cloud servers.

The lawyer made a similar argument Wednesday, which Justice Gary Weatherill dismissed, saying police were right to search the texts of another woman after her arrest outside Montgomery's home. Those messages led to the search warrant for Montgomery's residence.

It was the second voir dire — or trial within a trial — in as many days called by Weatherill during the testimony of Jackson, who is Crown prosecutor Ginger Holmes’ only witness so far.

“I think (Patterson) is trying to draw a limitation where one does not exist,” Holmes said. “There is no limitation, you can search the phone. The phone is properly seized by the police and all of the information is in their hands. The warrant authorizes them to search the entire phone.”

Patterson called Jackson as a witness to learn more about how the phone was searched.

Jackson testified he put the phone on “airplane mode” to disable its ability to send and receive data prior to conducting his search, however, he was not the first officer to interact with the phone.

Another Penticton officer with expertise in digital searches apparently downloaded the data from the phone prior to Jackson’s search.

With little in the way of precedent, Weatherill said the search of data accessed through the phone is “a tight legal issue.”

The voir dire was put on hold until the officer who initially downloaded the data is available. The trial continues today.