Pubdate: Thu, 22 Dec 2011
Source: Vancouver Sun (CN BC)
Copyright: 2011 The Vancouver Sun
Contact: http://www.canada.com/vancouversun/letters.html
Website: http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Kelly Sinoski, Vancouver Sun 

ABBOTSFORD POLICE HOME SEARCH RULED 'MISUSE OF POWERS'

Abbotsford police engaged in a "serious misuse of their powers" when 
they extended an investigation of a suspected medical marijuana grow 
rip to search the home for signs of criminal activity, a Supreme Court 
judge has ruled.

Justice Brian Joyce said the police were justified in searching the 
home after suspecting a violent grow rip had occurred on Feb. 10, 
2009, but they exceeded their limits in obtaining a search warrant 
after a "rough count" of the medical marijuana plants inside indicated 
the grower was in violation of his licence.

"Police were aware of the limits of their powers by entering the 
residence without a war-rant. They knew they could not engage in a 
search for evidence to support a crime, yet that is exactly what they 
did," Joyce ruled in his written judgment.

"It must be kept in mind that even though the police had the 
authority, under exigent circumstances, to enter the accused's home 
without a war-rant this case is still concerned with the privacy 
interests in relation to his home. Those privacy interests are 
entitled to the utmost protection.

"In my view, the court must guard against the notion that once the 
police are lawfully inside a person's home unlawful searches conducted 
by them will be viewed as minimal intrusion into protected privacy interests."

In his voir dire ruling, the judge said the search warrant was 
unreasonable, and the search was unauthorized and unlawful. He has 
excluded the evidence obtained under the warrant from the case.

Police were called to the home in the 32080-block of Clinton Avenue 
after a neighbour reported seeing three men with black hoodies in the 
backyard of a house across the street. When police arrived they found 
a fence kicked in and the patio door open at the house next door.

Knowing the house owner, Pencho Batanov, was licensed to grow medical 
marijuana, the police suspected a grow rip had occurred and decided to 
search the home to see if anyone was injured. Joyce said he was 
satisfied that the police believed a grow rip had occurred and were 
justified in searching for any people in the home.

"It is well known that grow rips usually are perpetrated by several 
individuals and that guns or other weapons are often involved, the 
potential for violence and the risk of harm is great," the judge wrote.

"I am satisfied that the police conduct in entering into the residence 
without a warrant fell within the general scope of the police duty to 
protect life and preserve public safety."

But they exceeded their powers, Joyce said, when several officers 
counted the number of lights and marijuana plants, which numbered 
about 200, in the basement. One officer also took note that the 
medical marijuana licence allowed only 49 plants. Police used the 
information to obtain a warrant and then seized a number of items 
relating to the grow operation, along with a digital camera.

Batanov is charged with unlawful production of marijuana and 
possession of marijuana for the purpose of trafficking.

The officers were aware Batanov had a licence to grow marijuana for 
his own use, the judge noted.

"The marijuana plants were there to be seen and could not be missed 
during the authorized search for people, but the police officers went 
beyond merely observing the grow operation," Joyce said. "The mere 
presence of marijuana plants and equipment comprising a marijuana grow 
operation was not evidence that a criminal offence had been committed."

Although the judge noted it's not an insignificant matter that the 
accused abused his right to grow medicinal marijuana, the size of the 
grow operation was "relatively modest" compared to some of those that 
come before the courts.
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MAP posted-by: Richard R Smith Jr.