CHARTER CHALLENGE LAUNCHED IN DRUG TRIAL

Police Entered Grow Op Before Warrant Obtained

WHITBY - Cops responding to a vicious dog call saw the door to a
residence wide open and detected the smell of marijuana wafting out of
it, a Superior Court judge heard Wednesday.

Durham Regional Police Constable Jim Zaphiropoulos testified that he
was informed by officers already on scene of the possibility that a
marijuana grow operation was inside when he arrived at 650 Highview
Rd. in Pickering on the evening of April 20, 2003.

"They advised me they detected a strong smell of marijuana in the
residence," Const. Zaphiropoulos testified under questioning by
federal Crown Sevag Yeghoyan. "When I arrived, I observed the windows
were covered so you couldn't see in the residence."

Other telltale signs of a grow op, including lights in the basement
and the sound of exhaust fans operating inside the house, led officers
on the scene to contact the Drug Enforcement Unit so a search warrant
could be obtained, the officer testified.

But before that happened, officers entered the home, discovering more
than 560 plants growing and several packages of dried pot. It is that
event that is at the heart of a Charter motion filed by defence lawyer
Leora Shemesh asking Justice Barry MacDougall to declare the search by
police illegal.

Edmund Young Dun Kim, 30, is charged with several offences related to
the grow op police discovered. Charges include production of
marijuana, possession for the purpose of trafficking and possession of
the proceeds of crime.

Officers called to the stand by Mr. Yeghoyan testified that they had
grounds for entering the house. They said two dogs that had attacked a
child and two responding police officers had run through an open front
door when a shot was fired at one of them. They testified they were
concerned a break-in may have occurred at the house, and that someone
may have still be inside with the two large dogs.

The door to the residence was wide open when police responded, Const.
Zaphiropoulos testified.

"The door was open; the dogs were out. It didn't make sense to me the
door would be open in a residential area at 7 o'clock at night," he
said.

"My intention was making sure anyone in the house was safe."

Eventually the dogs were cornered in an upstairs bedroom and one of
them was shot. Officers entered the home to make sure no people were
hiding or injured inside, once the dogs were contained, Const.
Zaphiropoulos said.

He said that upon entering the house, he detected a strong smell of
fresh marijuana and saw packaged dope.

"It was obviously a grow house," Const. Zaphiropoulos said.

Also Wednesday, Constable Hermano Derago, one of the first officers to
respond, testified that he and his partner had sound reasons for
securing the property, and conducting a perimeter search that included
them looking through windows of the house.

He was challenged by Ms. Shemesh, who said the circumstances
confronting police did not warrant their entering the house.

"At the time all you have is an open door and two dogs," she
suggested.

The officer agreed, but said that all possibilities had to be
considered.

"The last time I checked, dogs don't open doors by themselves," he
said. "There's a possibility someone has broken into this house,
wandered into this house.

"You don't just walk away."

The trial continues.