Pubdate: Wed, 25 Apr 2012
Source: Winnipeg Sun (CN MB)
Copyright: 2012 Canoe Limited Partnership
Contact:  http://www.winnipegsun.com/
Details: http://www.mapinc.org/media/503
Author: James Turner

OFFICERS' ACTIONS ON TRIAL AT HEAD SHOP OWNER'S DRUG
TRIAL

Alejandro Chung is charged with serious drug crimes.

But really, it's the actions of the Winnipeg police officers who
arrested him that are on trial.

Chung's case is raising major questions about the legal lengths cops
can go in acting on their suspicions to enter businesses without
warrant or invitation.

Chung, 45, has pleaded not guilty to possession for the purpose of
trafficking after cops seized cocaine and marijuana from his head shop
business, La Mota, on Portage Avenue on the evening of Oct. 27, 2009.

He's fighting to have the drug evidence tossed out, claiming it was
illegally obtained.

The Crown contends the search and seizure were lawful and should be
upheld.

The case hinges on the testimony of Const. Brian Boyd, who told court
he suspected La Mota was being burglarized and felt duty-bound to
follow up by going inside Chung's business without a warrant.

Moments after entering, Chung was cuffed after being wrestled to the
ground - an act Justice Douglas Abra called "unacceptable" in the
circumstances.

He was then searched despite angrily protesting he never invited
police inside.

Justice Doug Abra suggested he isn't buying Boyd's suspected B and E
theory, saying elements of his testimony don't add up, and police
should have done more to investigate Chung's relationship to the business.

"It wasn't a break-in, it never was a break-in, and Boyd can't seem to
get that through his head - or doesn't want to get that though his
head," he told Crown prosecutor Mark Lafreniere. "This was (Chung's)
premise ... it's almost as if Boyd was avoiding finding this out," he
said.

Boyd told court he felt there were a number of reasons to suspect the
business was being burglarized.

These included: A large truck with a flashlight inside parked outside
the rear of La Mota and left running for more than 15 minutes, and
that a computer check of the truck's plate revealed cautions about
Chung's reputed associations with the Zig-Zag Crew and Hells Angels
gangs.

"There's so much going on ... I might be derelict of duty if I don't
follow through ... and go in there and figure this out," Boyd said
under cross-examination Tuesday.

The Crown contends it was Chung's nephew's act of coming out La Mota's
rear door, speaking briefly with Boyd's partner and then darting back
inside - leaving the door ajar - that "crystallized" Boyd's suspicions.

Abra also questioned why Boyd and then-partner Const. John Tokariwski
didn't simply wait for backup or for the B and E suspects to exit the
store.

Tokariwski conceded under cross-examination Tuesday that in hindsight,
he wouldn't have gone inside.

Boyd saw drugs in the basement while conducting a sweep of the store
for B and E suspects after arresting Chung.

It wasn't until hours later that police obtained a warrant to go back
and seize them.

Abra will give his decision May 11. 
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