WINNIPEG — 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 disagrees, saying two Winnipeg police officers trampled all over the rights of an accused drug dealer that 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 4x4 vehicle running outside the property which 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, 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 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,” Abra said.
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.
» Winnipeg Free Press
Republished from the Brandon Sun print edition May 12, 2012