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." - --- MAP posted-by: Jay Bergstrom