Judge throws out search warrant evidence in Abbotsford marijuana case

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 warrant. 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 warrant 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.” 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 who might have been injured or tied up 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.” By 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. 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. “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, noting the officers were aware Batanov had a licence to grow marijuana for his own use. “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 rights to grow medicinal marijuana, the size of the grow operation was “relatively modest” in comparison with some of the cases that come before the courts.

via : vancouversun.com

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