SEARCH RULED UNJUSTIFIED, DRUG CHARGES THROWN OUT

A judge has flushed a drug-trafficking case after finding Winnipeg
police violated the rights of two men found carrying 22 rocks of cocaine.

Antonio Lindo and Darren Horn walked free yesterday when Queen's Bench
Justice Shawn Greenberg ruled the evidence was obtained in an illegal
search.

The incident began when police were conducting surveillance as part of
an ongoing break-and-enter investigation in the city's west end, court
was told.

Lindo and Horn were walking on Victor Street when they approached a
parked undercover police van and peered through the tinted windows
while briefly jiggling the door.

Both men left without further incident, but police testified they
decided to spot-check them because they felt they might be scouring
the area looking to steal vehicles.

Lindo and Horn got into their own car but were quickly pulled over in
what police described as a "high-risk takedown" that included boxing
the men's vehicle in with cruiser cars. Police officers told court
they saw Horn bending over and apparently putting something -- which
they feared could be a weapon -- under the seat.

Lindo and Horn were removed from the car and given pat-down searches
while laying face-down on the ground.

Horn suffered a cut to his head, and police found a small baggie
filled with crack cocaine stuffed inside his sock.

Both men were arrested and charged with possession for the purpose of
trafficking.

The Crown argued police had a valid reason to search the accused once
they raised suspicion by rattling the door handle of the van.

Greenberg disagreed.

"A hunch is not enough. There was no evidence that they used any force
to enter the vehicle or had any tools in their possession. Their
attention to the vehicle was only brief and they had lost interest in
it before police pursued them," she said in her decision yesterday.

"It is difficult to see how any reasonable person would view the
actions of the accused as an attempt to steal the van. It is more
consistent with the actions of a curious onlooker checking out a van
with tinted windows. And there is nothing illegal about that." The
Crown also claimed the search was justified because Horn appeared to
be either reaching for or concealing something under the seat.

Greenberg said there is no merit to that argument because police never
should have pulled them over in the first place.

"The police did not have reasonable grounds to detain the accused,"
she said.

"While I wouldn't go so far as to describe the Charter breaches as
flagrant, I do view the police actions, when viewed in their entirety,
as overkill."

Greenberg also took issue with the way police handled Horn, noting he
suffered injuries to his head and "was handled roughly".