JUDGE RULES THAT POLICE EXCEEDED POWERS

A Supreme Court judge has said that Abbotsford Police exceeded their
powers when they gathered evidence at the scene of a medical
marijuana grow-op without a search warrant in February 2009.

Justice Brian Joyce ruled at the end of a voir dire (trial within a
trial) in Chilliwack Supreme Court on Monday that the evidence should
be thrown out against Pencho Batanov of Abbotsford.

He was due to go on trial Nov. 21 on charges of unlawful production
of marijuana and possession for the purpose of trafficking, but the
case was delayed by the voir dire.

The matter stems from a report to police on Feb. 10, 2009, in which
the caller indicated three men wearing hoodies had entered the
backyard of a home across from her residence in central Abbotsford.

Police who responded to the call searched the outside of the home and
noticed that some slats had been removed in the fence separating it
from the neighbouring residence.

Officers testified that the next-door home was a known medical
marijuana grow-op and they were concerned that a "grow rip" might
have taken place.

They went to the door of that home, announced their presence and
entered the house when they received no response. The officers found
no one inside, but came across the grow-op in the basement.

The officers testified that they did a rough count of the plants,
each arriving at a number between 150 and 230. One also made note
that there were 21 lights.

Another officer came across the medical marijuana licence, which
indicated the maximum number of plants allowed was 49.

They later returned to the residence with a search warrant and seized
the plants and equipment, along with some documents. Batanov was later charged.

Joyce said police were justified in entering the home in order to
check on anyone who might have been injured or in need of help.
However, they exceeded their powers when they collected the
information that became the basis for the search warrant.

Joyce said this amounted to an "unauthorized and unlawful search."

"Their powers are limited to those required to ensure public safety.
They do not have the power, without a warrant, to conduct a search
for evidence or otherwise conduct an investigation, within the
residence, into an offence," Joyce said.

He ruled that evidence that should be excluded from the trial include
the number of plants counted in the home when police first entered,
the number of lights, and the content of the medical marijuana
licence, as well as the evidence obtained as a result of the search warrant.