BUNGLED GROW OP ARREST ALLOWS MAN TO WALK FREE

Police bungling of a marijuana grow operation investigation has
allowed a Surrey man to walk free.

Huu V. Hoang was acquitted Monday of charges of producing marijuana
and possession for the purpose of trafficking after Judge Russell
Mackay threw out all evidence that tied Hoang to a grow-op on
Strathcona Road. Charges of theft of electricity were stayed by the
Crown after Mackay dismissed the evidence.

On Nov. 28, 2008, police stopped a van driven by Hoang in front of a
home in the 46500 block of Strathcona Road. Mounties suspected the
home harboured a marijuana grow operation and later testified it was
not the first time a white van was seen in front of the home.

Officers handcuffed Hoang, placed him in the back of a police car and
proceeded to search the van, in which officers testified they found a
"substantial amount of marijuana." About 1,200 plants were later found
in the home's basement.

While Mackay said police had reason to stop the van, he ruled that
police "egregiously" and needlessly breached Hoang's rights when they
made a "de facto arrest" before searching the vehicle. Police also
erred, Mackay said, by searching the van without a warrant. Such a
warrant, the defence argued, could have been obtained relatively
easily, but was not.

"I concluded that the detention and de facto arrest was unlawful,"
said Mackay. About the need for the warrant, he said: "The problem was
[that] not enough thought seems to have been directed at the issue."

Prosecutor Susan Gill argued that drivers expect less privacy and that
the fact that the vehicle had been seen at the grow-op justified
Hoang's detention.

But Mackay didn't buy that argument. He said the lack of any dates or
times at which the van had been seen at the house pointed to the
sightings of the vehicle at the grow house to be second-hand
information. There was, he said, no guarantee that the white van seen
at the house was even the same vehicle Hoang was found driving, and no
assurance that Hoang had driven the van before.

"He was never seen in the van prior to the date in question," said
Mackay.

In his ruling, Mackay stated that officers had breached Hoang's rights
under both sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

"The violation cannot be classified as a mere technicality," he said.
"His general right to be left alone by the state was interfered with.

"This constitutes a very egregious, if not serious, violation of
[Hoang's] rights."

Evidence obtained through improper means is not automatically
dismissed. But Mackay noted that if the means through which the
evidence is obtained would jeopardize the reputation of the Canadian
legal system, the evidence cannot be admitted.