RULING IN HOME SEARCH WORRIES POLICE

A possible Charter of Rights issue has thwarted efforts to bust a grow
operation, and police fear the case might set a precedent making it tough
to solve similar crimes in the future.

Fire crews were called to a house in the southwest last week to douse a
blaze in the kitchen and attic area.

A fire investigator got suspicious when he found signs of illegal drug
activity, including rubbing alcohol and a gooey, green leaf substance which
had a marijuana odour, and notified the arson unit of his observations.

Court documents, relating to a search warrant, show police believed the
home was the site of a small grow operation.

DELAY RAISED SUSPICIONS

"I believe the fire was caused ... during the illegal
manufacture/production of a controlled substance where Isoporpyl or rubbing
alcohol was being heated on the stove," Const. Sidney Procee states in
court documents.

"I believe the occupants delayed calling emergency crews ... in an attempt
to sanitize the scene of incriminating evidence."

A judge, however, turned down a police request for a search warrant citing
the fire investigator had "conducted the search without the homeowners'
consent or judicial authorization" which resulted in what "appeared to be a
Charter breach."

That means any evidence would be tainted or inadmissible in court and
leaves police unable to pursue the case.

Now the fire and police departments are seeking legal counsel to clarify
the situation to prevent similar dilemmas.

Fire crews, under the Alberta Fire Safety Code Act, are permitted to be on
private property to suppress a fire without permission. Police, however,
must always have a warrant or consent to search a residence in relation to
a criminal investigation.

A "grey area" arises when a fire investigator, who determines the fire
cause, comes across suspicious activity, said Staff Sgt. Ken Marchant.

'Grey Area'

"Nine out of 10 times it is not an issue except in cases where the cause of
the fire is as a result of illegal activity," he said. "Should (fire
investigators) be getting consent before starting an investigation? Do we
have to change the way we do business?"