JUDGE QUASHES WARRANT THAT LED TO BUST

Phone Tip About Grow-Op Not Sufficient Grounds for Search of Couple's
Home

COLDBROOK - A Kings County man and woman charged with marijuana
production have scored a legal victory.

A search warrant executed in April 2005 at a rented home in Coldbrook,
Kings County, was declared invalid after defendants Sean Paul Cluett
and Jennifer Cynthia Durling argued police had insufficient grounds to
obtain the warrant.

Police had "suspicion" that marijuana was being grown in the home's
basement but not probable grounds, provincial court Judge Alan Tufts
said in his decision Friday granting the defence's motion to quash the
warrant.

Police had already been investigating someone named Stephanie Cynthia
Durling of 6754 Highway 1 in Coldbrook for marijuana production for
the purpose of trafficking when an anonymous tipster called Crime
Stoppers on two occasions with information on an alleged grow-op in
the home rented by Jennifer Durling on Highway 1 in Coldbrook.

Judge Tufts said the police application for a warrant did not indicate
whether Stephanie Durling and Jennifer Durling were the same person or
were related.

The tipster gave police a correct phone number for Jennifer Durling
and said her ready-to-harvest plants were located in the basement and
kept under huge lights plugged into sockets usually reserved for a
stove or dryer.

The tipster accurately told police where Jennifer Durling worked, and
a car registered to her was observed outside the house at 6754 Highway
1.

Police conducted surveillance at the house and noted the basement
windows were sealed with material designed to prevent light from escaping.

The day before the search warrant was executed, the basement was
scanned using a thermal imaging camera that indicated the presence of
heat, which a police technician said was consistent with
high-intensity lights used to grow marijuana indoors, according to a
summary of the warrant application in Judge Tuft's decision.

The judge said an anonymous tip alone is not grounds for a search and
that a justice of the peace who granted the warrant application should
not have done so.

An informer's information has to be compelling, detailed, credible and
confirmed by other investigative avenues, he said.

The anonymous source in this case had no established credibility with
police and offered few compelling details of the grow-op, Judge Tufts
said. The tipster knew some details about Jennifer Durling that
checked out, but those could have been taken from public sources.

The thermal imaging test that detected heat in the basement was also
not conclusive enough evidence to give police probable grounds, the
judge said, noting that police acknowledged the heat could have come
from other sources.

Beyond the tip, police had "no other evidence of a crime" when they
sought the warrant, Judge Tufts said.

The court will hear arguments at a later date about whether any
evidence found during the search should now be excluded.