Pubdate: Sat, 12 May 2012
Source: Winnipeg Free Press (CN MB)
Copyright: 2012 Winnipeg Free Press
Contact: http://www.winnipegfreepress.com/opinion/send_a_letter
Website: http://www.winnipegfreepress.com/
Details: http://www.mapinc.org/media/502
Author: Mike McIntyre
Page: B1

JUDGE TOSSES OUT DRUG CHARGES

Calls police work overzealous and high-handed

They claimed to be doing the "right thing" -- following their
instincts, playing a hunch and ultimately getting the bad guy off the
street.

But a Manitoba judge disagreed, saying two Winnipeg police officers
trampled all over the rights of an accused drug dealer, which has now
led to a major case being tossed out of court.

Alejandro Chung, 45, was arrested in October 2009 after being caught
with a quantity of cocaine and benzocaine, a common agent in the
drug-production business. But Chung walked free Friday on a charge of
possession for the purpose of trafficking on the grounds an illegal
search and seizure occurred.

Queen's Bench Justice Doug Abra shredded the conduct of Const. Brian
Boyd and John Tokariwski in his ruling and dismissed all of the
evidence they found. With no other case against Chung, he was promptly
acquitted.

"The police misconduct was blatant and serious. The two officers
flagrantly disregarded the accused's rights under the Charter," Abra
wrote in his 25-page decision. "If I permit the drugs, the
paraphernalia and other seized items into evidence, I will be
condoning wilful and flagrant breaches by the authorities of the
accused's rights."

Boyd admitted bursting inside Chung's Portage Avenue business without
a warrant, believing they had stumbled across a break-and-enter in
progress.

Boyd spotted an unoccupied four-by-four vehicle running outside the
property that was "flagged" in the police system as belonging to
Chung, a noted Hells Angels associate. Boyd and Tokariwski called for
backup but didn't wait for their arrival. Instead, they walked through
a partially opened door and entered the premises where they saw Chung
with a "white substance" around his lips. They ordered him to the
floor, handcuffed and searched him.

"In my mind I was doing the right thing, what a police officer should
do," Boyd testified at the trial last month. "I was just acting with
due diligence. It was good faith. I thought something was going on."

Abra said Friday the two officers had "no authority to enter the
premises" or to subsequently search Chung's pockets, which revealed a
bag of cocaine.

They also found a duffel bag containing benzocaine on a nearby shelf.
It was only after the arrest that Boyd went to a magistrate and
obtained a search warrant.

"They were trespassers. Furthermore, they had no legal grounds to
manhandle and handcuff the accused in the manner they did. To the
contrary, in my view, the conduct of the two officers was overzealous,
high-handed and unjustified," said Abra.

During the trial, defence lawyer Roberta Campbell questioned why Boyd
felt the need to rush inside the building when there was no evidence
any crime had taken place. There were no alarms ringing, no 911 calls
and no stolen goods piled in the back of the truck.

"Without bragging, I'm known to find things," Boyd told
court.

"In my eyes, being a proactive police officer with a history of making
good arrests, I saw something different," said Boyd. "If a lot more
police officers did what I did that night, I think we'd solve more
crime."

But that explanation didn't sit well with Abra, who questioned why
Boyd claims "officer safety" was his primary concern in how he handled
the situation, yet Boyd decided against waiting for backup and instead
rushed into a building with no legal authority.

Chung's store, La Mota, sold various drug-related paraphernalia, court
was told.

Boyd said his suspicions were raised by the running vehicle outside
and even more when another man -- a relative of Chung's -- briefly
exited the building before dashing back inside upon their arrival.
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MAP posted-by: Matt