Pubdate: Wed, 23 Feb 2005
Source: Vancouver Sun (CN BC)
Copyright: 2005 The Vancouver Sun
Contact:  http://www.canada.com/vancouver/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Maurice Bridge, with files from Canadian Press
Bookmark: http://www.mapinc.org/raids.htm (Drug Raids)

POLICE TOO HASTY WITH BATTERING RAM, JUDGE DECIDES

Charges of running a marijuana growing operation in Mission have been 
thrown out by a B.C. Supreme Court judge because police got a bit hasty 
with their battering ram.

In a Jan. 20 decision that was released Tuesday, Justice B.M. Joyce 
dismissed charges against a husband and wife after finding the house search 
that turned up the evidence was unreasonable.

Li Qing Mai and her husband Zhi Wen Tang had been charged with unlawful 
production of marijuana, possession of marijuana for the purpose of 
trafficking, and theft of electricity.

They asked the court to exclude the evidence the police found -- "a modest 
size marijuana grow operation in the basement" -- under a section of the 
Charter of Rights. Section 24 instructs courts to exclude evidence that is 
obtained in a way that infringes or denies any rights guaranteed under the 
Charter.

The accused said the search breached their rights "to be secure against 
unreasonable search and seizure."

The judge, sitting in Chilliwack, said that when police arrived at the home 
on Jan. 12, 2003, armed with a search warrant and a 41-kilogram (90-pound) 
battering ram, they knew they had to wait long enough for the occupants of 
the house to respond to their demand that the door be opened.

He said they had no reason to fear for their safety from the occupants, a 
husband and wife who turned out to be watching TV at the time. However, 
Joyce said, the police command to open the door was followed by the door 
being smashed open "only a second or two" later.

He added he did not believe the evidence of one of the police search party 
who testified he could tell the occupants were not responding by looking 
through a semi-opaque, bubbled, coloured-glass window beside the front 
door, nine metres from where the occupants were sitting.

Joyce also said it was "entirely plausible" that the couple, who were at 
the back of the house watching television, did not hear the police demands.

He cited a number of cases, noting that the "knock-and-announce" rule is 
designed to protect both the police and the public by reducing the risk of 
violence based on mistaken identity or the misapprehension of a threat, 
such as an unidentified object in the hands of someone inside a house.

The judge ruled that the entry into the residence was a breach of the 
Charter section prohibiting unreasonable searches, which in turn led him to 
dismiss the marijuana charges.

Finally, he said, the officer who obtained the search warrant and battered 
the door open had a personal interest in the matter, since the growing 
operation was in his neighbourhood and he had smelled marijuana a number of 
times while walking in the area.

"In my view, he let his zeal and his desire to do something about the 
situation overcome what he knew was his duty," said the judge.

The accused's lawyer, David Tarnow, said Tuesday after the ruling that the 
judgment "reinforces the fact that the police should knock and announce and 
give the homeowner an opportunity of getting to the door."
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