Personal search that netted drugs out of line: judge

April 15 was a bad day for Windsor’s Brandon James Nunn. Nunn, 27, was at the McDonald’s at the corner of Goyeau and Wyandotte streets about 1 p.m. when he got into a verbal altercation with a man ahead of him in line. The man pulled out a container of pepper spray and blasted Nunn in the face. So began 15 months of legal troubles for Nunn, who, in his blinded state, was frisked by police and was found to be carrying 81 fentanyl tablets in his pants pocket. A Windsor judge Friday criticized the officer who illegally searched Nunn, calling it a “profound” violation of the man’s Constitutional rights. Police charged Nunn under the Controlled Drugs and Substances Act with possession of fentanyl for the purpose of trafficking — a charge Superior Court Justice George King dismissed.

“The Charter was designed to prevent indiscriminate and discriminatory exercises of police authority,” King said, excluding the fentanyl as evidence that could be used at trial, effectively evaporating the Crown’s case against Nunn.

“To admit the evidence seized in these circumstances would clearly send a message that individual Charter rights are of little benefit to members of our society.” Const. Harrison Young told the judge he believed Nunn had a history of violence and needed to search him for public safety reasons. “Officer Young did not have grounds to conduct the search… There were no reasonable grounds for the officer to conclude the accused was an imminent threat to the public or police.”

Young testified he had conducted 300 to 400 similar searches in his three years as a police officer, but had received no specific training as to when he could or could not perform such searches. Nunn’s lawyer, Julie Santarossa, called that shocking. “People have had their liberties violated,” she said Monday. She called the violation “egregious.” When Young came across Nunn, he was in the back of an ambulance wiping his face and screaming to be taken to the hospital. Young made Nunn get out of the ambulance and submit to the search before allowing him to be transported. Nunn was “clearly suffering and in significant pain,” King noted. Young gave him the choice of being searched or not getting timely medical attention.

Nunn was not arrested on the spot. Young seized the pills, not knowing what they were, then let Nunn go. After another officer identified the pills as fentanyl, Young went to the hospital to arrest Nunn.

Hearing he was under arrest, Nunn asked to speak to a lawyer. Young continued to question Nunn.

“The officer testified that he was unaware that he had an obligation to not ask the accused any questions until he had the opportunity to speak to counsel once the accused had made that request,” King said in his decision.