Veteran Attorney at Law David S. Brandt has Won a Moral Victory in the Appeal Court

The Appeal court judges ruled on February 14th that the search of the former Chief Minister’s cell phones was unlawful.

The appeal court said, regarding the cell phones, that a warrant to search for and seize a cell phone is not a warrant to search a cell phone, thus making the search unlawful.

It said where the police intended to access and use data from cell phones found in a lawful search, they should have included in the warrant, which they applied for and obtained, the authorization to search the cell phones.

The thrust of Mr. Brandt’s appeal was that the judge erred in dismissing his claim as the search of his cell phones was in violation of his constitutional right to privacy and unlawful.

He also challenged the judge’s decision to make a costs order against him.

The appeal court stated that notwithstanding that the search of the cell phones was unlawful, Mr. Brandt’s constitutional right to privacy guaranteed by section 9 of the Constitution of Montserrat was not breached….emphasizing that the fact that the police went outside the scope of the warrant did not make their actions unconstitutional.

The appeal court states that in the instant case, the criminal proceedings and the exercise by the judge of his case management powers to hold a hearing on the admissibility of the cell phone evidence/ provided an effective means by which Mr. Brandt could seek relief in respect of evidence which he claims to be inadmissible.

The appeal court also found that constitutional motions such as this one is yet another misconceived delaying tactic/device intended to delay and/or derail the criminal trial set to start on February 28th.

The court, having found that the appellant’s claim for constitutional relief is an abuse of process and subject to the declaration that the search was unlawful, dismissed the appeal in all other aspects and make the same award of costs.

In September 2016, Mr. Brandt was arrested and charged with various offences under the Penal Code of Montserrat.

The police obtained warrants from a magistrate to search premises occupied by Mr. Brandt.

The warrants authorized named police officers to search the premises for articles essential to the inquiry into the said offences.

The police conducted the search and seized, among other things, cell phones which were subsequently searched. Following the search of Mr. Brandt’s cell phones, certain WhatsApp messages were received which he does not deny are his.

The prosecution indicated that they intend to rely on those communications at Mr. Brandt’s trial later this month.