JUDGE UPHOLDS POLICE SEARCH

Police breached the constitutional rights of a drug trafficker when
they searched him and found cocaine, a folding knife and $520 in $20
bills in his pockets as he made a delivery to a street-level dealer, a
judge said Tuesday.

Court of Queen's Bench Justice Jacqueline Coutu, however, ruled the
breach was not serious enough to exclude what they found from evidence
and convicted Timothy Matthew Chan, 24, of possession for the purpose
of trafficking.

"Police did not deliberately breach Mr. Chan's charter rights," Coutu
said, alluding to the April 10, 2002, search.

"They believed they had a right to search him for weapons," she said,
noting a frisk search led officers to suspect Chan might be carrying a
knife. "I'm satisfied that was reason to warrant a more obtrusive search."

Defence lawyer Pat Fagan had argued the 15.2 grams of cocaine and
knife with a 10-centimetre-long blade should be excluded because
officers did not have reasonable and probable grounds to search Chan
as he waited in the lobby of a southeast apartment building to be buzzed in.

But Coutu disagreed, saying Const. Keith McIntosh -- the investigative
officer who led 10 officers on a forced entry into the building in
hopes of capturing both the woman drug dealer who lived there and her
supplier (Chan) -- had to act quickly when Chan showed up just after
the entry.

The primary issue during the trial was whether Chan had been arrested
or detained, and there were discrepancies in the testimony of various
police officers. But Coutu essentially said it didn't make much difference.

"McIntosh had to determine quickly if the objects (on Chan) were
weapons and he did not have the luxury of time," said the judge.

"The accused was suspected of being a mid-level trafficker and more
likely to have such objects on him."

Following the conviction, Crown prosecutor Ivanna Perozak successfully
argued Chan should be detained until sentencing, when she will seek a
prison term of 41/2 years.

She noted Chan had been caught trafficking marijuana to a co-accused
in the prisoner's dock at provincial court during a hearing last year.

Fagan, who is seeking a conditional sentence of less than two years
for his client to serve in the community, was granted adjournment
until Nov. 29 so he could properly prepare for sentencing arguments.