News (Media Awareness Project) - CN BC: Police Too Hasty With Battering Ram, Judge Decides |
Title: | CN BC: Police Too Hasty With Battering Ram, Judge Decides |
Published On: | 2005-02-23 |
Source: | Vancouver Sun (CN BC) |
Fetched On: | 2008-08-20 19:27:46 |
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."
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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