BUNGLED POLICE SEARCH CITED AS JUDGE RELEASES GROW-OP
SUSPECTS

Two men, both facing charges arising from a marijuana home-grow
operation in Saanich, walked free Wednesday after a judge declared a
police search violated their constitutional rights.

Charges of production of marijuana and possession of marijuana for the
purpose of trafficking laid against Daniel Gerald McGauley and Sean
Samuel Stinson, were dismissed. A charge of possession of psilocybin
for the purpose of trafficking against McGauley alone was also dropped.

Justice R. Dean Wilson ruled evidence supporting the charges was not
admissible. A police search violated the rights of McGauley and
Stinson to be free of unreasonable search and seizure and violated
their rights to privacy.

Court heard police were first alerted on July 15, 2004, to the
possibility of a crime, a grow operation, possibly even a shooting, by
a bizarre and anonymous caller who supplied the non-existent address
of 14 Grove Rd.

Applying local knowledge and admitted guesswork, police decided to
check a home at 14 Gorge Rd.

After officers announced themselves, McGauley came out and was placed
in handcuffs. Officers searched the house and discovered a grow
operation but no signs of violence.

Wilson said police have an obligation to get confirmation of the
emergency nature of a situation, like a shooting, before the emergency
can over-ride a citizen's right to privacy and freedom from
unreasonable search.

Without such care and confirmation, Wilson said "police can become
unwitting participants in cruel and vicious pranks."

Court heard the case began with a 911 caller who police quickly traced
to a payphone in Market Square.

When the police operator asked what the emergency was, the man replied
it was "a grow house." But when the police operator asked what was the
emergency in that house, the caller stammered a few times.

"I would suggest . . . it would be because somebody is probably going
to get shot," said the anonymous caller.

The man identified the address as 14 Grove Rd.

He even spelled it "G-R-O-V-E."

The Victoria operator declared there was no such street in Victoria
and the call was sent to the Saanich operator. When no Grove Road was
located in Saanich, the call was put through to RCMP in Sidney, which
has a Grove Crescent but without a number 14.

Operators from Saanich and Sidney tried to question the caller as to
the location of the home and were told it was across the bridge. When
the operator asked if he meant Esquimalt across the Bay Street Bridge,
the caller said yes.

The caller also said "there is guy downstairs in there right now about
to get his brains blown out."

And he ended with "the guy is downstairs right now with a bullet to
his head so have a good time. Bye, bye."

The police operators joked about the call and speculated there might
be some mental-health issues with the caller.

But Saanich police Staff Sgt. Barry McLachlan testified he started
thinking. With only a handful of streets in Saanich that have
two-digit address numbers, like 14 , McLachlan guessed the caller
might have meant Gorge, not Grove, Road.

And McLachlan passed on the possibility of a shooting at 14 Gorge
Rd.

Officers who attended the house all testified they went to investigate
the possibility of a violent firearms incident. But preliminary looks
at the house revealed nothing suspicious and none of the tell-tale
signs of a grow operation, like windows covered over, condensation or
a tell-tale odour.

Crown lawyer Richard Fowler argued police had every right to conduct
the search based on the emergency nature of the call. They were
investigating a possible shooting.

But defence lawyers Michael Mulligan and Dale Marshall argued police
had no right to search a house based on guesswork and a strange
telephone call. They had an obligation to check things out, at least
talk to neighbours or call the home by telephone.

"Otherwise anybody could call up from anywhere and say 'Dead man in
basement, good-bye.' Then not the fire department or the ambulance
comes but the police department with guns drawn."