A man who tried to have his drug charges thrown out in court because he said Abbotsford police shouldn’t have searched his “man bag” and backpack has now been convicted.
Jakob Mosterd was recently found guilty in Abbotsford provincial court of possession of heroin, fentanyl, cocaine and methamphetamine. The charges were downgraded from his initial four charges of possession for the purpose of trafficking.
His sentencing hearing has been scheduled for Jan. 14.
Mosterd, 31, previously argued that his charter rights were breached when police searched his bags on July 24, 2019 after they detained him following reports of a home break-in on Emerson Street.
Judge Gregory Brown said in his written ruling on the matter that a witness had seen a man climbing through the back window of a house and letting a second man in the front door. The witness provided their descriptions to police.
Two men matching those descriptions were stopped by police as they were walking in the area.
A pat-down search of one of the men turned up no weapons or other illegal items, and he was allowed to go. But the officer who was dealing with Mosterd noticed he was holding his man bag tightly to his body.
Brown said that about a year prior, the officer had an experience where she was assaulted while arresting a man with a man bag.
She had placed the man in handcuffs, but took them off because she had to remove the bag.
“As she was doing this, the male punched her in the head. A knife was located in the bag,” Brown said.
He said the prior incident was still in the officer’s mind as she approached Mosterd. She told him he was being detained and opened the main zipper of the man bag “to ensure there were no weapons,” the judge said.
Brown said when the officer opened the black canvas bag, she saw a large bag of what she suspected to be crystal meth, and Mosterd was arrested.
A further search on scene turned up pills in a pill bottle and two others bags. In Mosterd’s backpack, the officer located a loaded pellet gun, three iPhones and a Samsung cellphone, Brown said.
He said a more thorough search of Mosterd was conducted at the Abbotsford Police Department and revealed about 20 packages of “possible fentanyl” in his shirt pocket, as well as $475 in cash.
The packages found during the searches were later confirmed to be 7.3 grams of crystal meth, 5.26 grams of fentanyl, .58 grams of heroin/fentanyl, 9.52 grams of cocaine, and pills that included Xanax, Trazodone and Cloneazepam.
Mosterd argued earlier this year that his drug charges should be ruled inadmissible in court because the searches “went beyond a simple pat-down.”
His lawyer argued that Mosterd, when he was first detained, took his hands out of his pocket when asked, and he was compliant.
But Brown said the searches were justified because Mosterd has a criminal history and was behaving in a “nervous or fidgety manner.”
The officer who first searched Mosterd had reason to be cautious, he said.
“I find that her brief search of the man bag for weapons was not a fishing expedition; it was reasonably connected to the safety search,” the judge said in his ruling on Oct. 29.
With the evidence ruled admissible, Mosterd’s trial went ahead, and he testified that the drugs found on him were only for his personal use during a four-day camping trip.
He said he was in a “downward spiral” at the time and used fentanyl, crack, meth and cocaine many times a day.
Brown said there was reasonable doubt as to whether Mosterd intended to sell the drugs, and he instead found him guilty of four possession charges.