CHARGES DROPPED IN B.C. GROW-OP CASE

VANCOUVER -- Charges against a couple caught running a marijuana-growing
operation in the Fraser Valley were thrown out by a judge because police
did not wait long enough before forcing entry.

In a ruling released yesterday, Mr. Justice Brian Joyce of the B.C. Supreme
Court ruled that the RCMP breached the Charter rights of Li Qing Mai and
Zhi Wen Tang because police failed to give the married couple adequate time
to answer the front door.

Two RCMP officers, armed with a search warrant, knocked on the door at
32993 Hawthorne Ave., in Mission, after doing surveillance work that
suggested a marijuana farm was located there.

Constable D. M. Duplissie told the court he knocked and shouted: "Police.
Search warrant."

His partner, Constable Steven Huntenburg, yelled: "Search warrant. Open up."

Then, "a couple of seconds" later, the two officers bashed open the door
with a 40-kilogram battering ram, a tool typically used in grow-operation
busts.

Ms. Mai and Mr. Tang only had time to jump up from the couch, where they
were watching television, before the police were on them. Marijuana plants
and related paraphernalia were found in the basement.

But Judge Joyce refused to allow any of that evidence to be used in court,
saying the search was a violation of their rights because the two-second
delay was not long enough.

Defence lawyer David Tarnow said the decision reflects a concern the courts
have about the rights of Canadian citizens "to have the right to answer a
knock at the door before police come flying through it."

Judge Joyce said police cannot enter residential premises by force without
first complying with a "knock-notice rule," which requires them to give
occupants adequate time to respond, unless the safety of police is at risk.

"The police suggested that this manner of searching the residence was
necessary for officer safety but they did not provide me with a
satisfactory explanation why that is so," Judge Joyce said.

In addressing the issue of how long police should wait before forcing
entry, Judge Joyce said it has to be "a reasonable time."

He noted the time may be needed "to permit the occupants to prepare to be
safely detained or arrested and to put down toy guns, channel changers or
other objects that have the potential to mistakenly [signal]
life-threatening danger to the entering police officers."

The investigation into the Mission grow operation began months before the
January, 2003, raid, when Constable Duplissie, who lived in the
neighbourhood, walked by the house and thought he smelled marijuana plants.

In the Fraser Valley, which is plagued by grow operations, Constable
Duplissie had become familiar with the smell. He later talked to the person
delivering mail to the house and found the postal worker had also smelled
marijuana plants.

Constable Duplissie returned to the scene with what is known as a Forward
Looking Infrared instrument and scanned the house, detecting what he
thought was the heat signature of a marijuana grow operation. With that
evidence he got a search warrant.

Judge Joyce criticized Constable Duplissie, saying his judgment may have
been clouded by his closeness to the case.

"It is clear that Constable Duplissie had a personal interest in this
matter in the sense that he was understandably concerned about a possible
marijuana grow operation in his own backyard, so to speak. In my view, he
let his zeal and his desire to do something about the situation overcome
what he knew was his duty," Judge Joyce stated.

"I must acquit them of all charges," he concluded.

The two had been charged with unlawful production of marijuana, possession
of marijuana in an amount in excess of three kilograms for the purpose of
trafficking and theft of electricity.