A major Winnipeg drug case has been thrown out of court after a judge found Winnipeg police trampled all over the rights of the accused.
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 pleaded not guilty to possession for the purpose of trafficking on the grounds an illegal search and seizure occurred.
Queen’s Bench Justice Doug Abra issued his ruling Friday morning, shredding the conduct of two police officers and dismissing all of the evidence they found. With no other case against Chung, he was immediately acquitted and walked free.
"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."
Const. Brian Boyd and his partner 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 running outside the property which was "flagged" in the police system as belonging to Chung, a noted Hell's Angels associate.
Boyd and his partner 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.
Abra said 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.
Chung's 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 about his "hunch" that the running vehicle outside the closed business, which is located in a seven-unit strip mall, was a sign something was amiss.
"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 Queen's Bench Justice Doug 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 even more when another man -- a relative of Chung's -- briefly exited the building before dashing back inside upon their arrival.