Pubdate: Wednesday, April 29,1998 Source: Nelson Daily News (British Columbia, Canada) Author: Lara Schroeder, Daily News Staff Page: Front Page Contact: HOLY SMOKE OWNERS ENTER NOT GUILTY PLEAS The three owners of the Holy Smoke Culture Shop entered pleas of not guilty to various drug charges on Tuesday morning. Dustin Cantwell, Paul DeFelice and Alan Middlemiss were arrested at their Herridge Lane shop on October 15 and later charged with possession of marijuana and psilocybin, commonly known as "magic mushrooms," as well as possession of both drugs for the purpose of trafficking. They plan to argue that the search of their shop was illegal, they and their lawyers said. "We believe the police did some investigation without a search warrant that required one," said Don Skogstad, who is representing DeFelice and Middlemis. Cantwell will be represented by Slocan Valley lawyer Kenyon McGee. The Nelson City Police entered Holy Smoke without a search warrant and returned with one after they saw what they believed to be marijuana. Skogstad plans to argue the first entry was an illegal search because the police entered parts of the store not open to the general public. A police search without a warrant doesn't result in the automatic exclusion of evidence in Canada, but if the search could "bring the law into disrepute" the evidence is dismissed, Skogstad said. Over half of the narcotics cases Skogstad takes are defended on the basis of an illegal search and seizure he stated. "I think there's a problem with the quality of police investigations," he said. The three shop owners considered fighting the charges by arguing that they are not constitutional and infringe their rights to paractice their religion. Holy Smoke was recently given church status by the Ontario-based Church of the Universe, which is known for its pot-smoking followers. "We'd love to make all the big arguments if we had the money," said DeFelice, who believes that laws against marijuana are as unconstitutional as the old laws against abortion that were overturned by the Supreme Court of Canada. "I still want to make a religious argument," he added. "I'd be willing to argue that all God's creation is for all of us to use." The problem is that in order to make that argument, the three would have to admit to using marijuana according to DeFelice. "If I can't worship the way I want, I'm wary about how public I can make those arguments," he stated. The argument that the search and seizure was illegal, which will be made under the Charter of Rights and Freedoms, can also be part of the battle to legalize pot, DeFelice added. "We're just playing non-cooperative - make them prove everything," he said. "The laws are unconstitutional, the search warrant is invalid." "They have to act unconstitutionally to get a conviction."