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.