Judge rules Abbotsford Police 'exceeded their 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.