Unwarranted search and seizure

It’s every grower’s nightmare: the front door explodes into shards of metal and wood. Police officers pour like blood through the ravished hole, with automatic weapons, storm-trooper helmets and a warrant? that little piece of paper that seems to give those officers the right to shoot your family pet and maybe even your family, while robbing you of your harmless livelihood, your cash crop of buds.
Alan Young is a professor of law at Ontario’s York University, a renowned lawyer and marijuana advocate with many cannabis cases in Canada’s Supreme Courts. He considers marijuana search warrants particularly problematic.

“The presumption of innocence is a mere rhetorical flourish,” says Young. “I don’t have a problem with the notion that police can intrude [by performing a search]on what the Supreme Court has called a “credibly based probability.” The problem is that in the drug arena, the courts interpret that threshold in a very generous way to aid the police, so that even the most marginally significant information is being used to intrude on people’s homes.”

But power-hungry police should also beware. Officers have become so nonchalant about the rights and freedoms of the average citizen that they make countless mistakes in applying for and executing their warrants. Lawyers like Alan Young, John Conroy and Pat Horner specialize in recognizing where police searches overstep the law, an occurrence so regular that it seems just about every search warrant has a serious weakness.

Getting the Warrant

Applying for a warrant in Canada is a difficult process, with many potential pitfalls for the would be cop turned home invader. Before the police even come onto your property, they have to collect enough information to convince a Justice of the Peace (JP) or a judge to sign the warrant, making it valid.

John Conroy, former president of NORML Canada, and a lawyer famous for his defence of the healing herb, tells how it is done:

“The police usually claim they skirted around the property,” says Mr Conroy, “because they are not allowed on the property under past rulings. Then they say the wind was blowing this way or that and they smelled something. Or there was condensation on the window. Or there might be curtains over the windows. Or they might get the hydro records ? All of these things, as they collect them, give them the basis to assert to the JP that they have the requisite ‘reasonable grounds’ to believe that the search will result in evidence of an offence.”

Police list their reasonable grounds in an application known as an “information to obtain.” If the JP is convinced ? and the JP almost always is ? the police get their warrant. Officers then raid the home, threaten your family, kill all your beloved plants, and likely your pets as well. After the execution of the warrant and your grow operation, police file a report with the JP. The report is known as a “return”, and lists what police have seized. Your lawyer then requests all of the police documents to examine whether the officers have bungled in collecting evidence for a warrant, or in executing their search.

Often they have. The trick for the lawyer is then to show that they bungled enough to have the case thrown right out of court.

“It depends on the seriousness of the breach,” Conroy says, “In most of the cases in which they have lied or misled the JP in getting a warrant, these are considered serious breaches, and the evidence is excluded. So it is a two pronged thing, establishing unreasonable search, and then getting the evidence excluded.”

Alan Young and John Conroy.Alan Young and John Conroy.Hydro Rats?

It was well before Fall of 1997, and police were trying to collect evidence to bust “Bob Erb”. When they came up empty-handed, officers likely decided it was time to make something up. So they made a call on BC Hydro, and asked how much power Erb was using. Police then went to a JP with the claim that Erb’s usage was abnormally high and secured a warrant to bust him in August.

When Erb discovered how they had obtained the warrant, he called up BC Hydro himself, and got a very different story.

“The BC Hydro manager said he could not tell by expenditure whether it was a grow operation or not,” says Erb, “he also said they don’t speculate to the police about that. He told me that every family is different. Some families have all the lights on outside all night long, a hot tub, powertools, a shop, while others don’t?”

The Hydro manager was also prepared to testify in court. But Erb’s case didn’t make it that far. His case was dropped in November of 1998. Erb wanted to go to court to reveal how police sometimes lie to obtain warrants.

“I was denied the right to a preliminary hearing to cross examine the officer,” Bob Erb recalls. “We know that the charges were stayed, but we don’t know why. My lawyer was the former prosecutor. Now he won’t tell me why the charges were stayed. He has left town and is not returning my calls.”

More astute police officers might claim that they skirted the boundaries of the property and did not see a hot tub, a shop or anything else to indicate an unusually high power usage. According to John Conroy, it still may not be enough for police to justify their warrants in court. He recalls a case known as “Regina vs Wayne Hiney,” in which Stanley Tessmer appeared as counsel.

“Police said no other visible signs of consumption were evident that would account for elevated use of hydro,” Conroy says, “But the officer also admitted that her view of the yard was obstructed, so the officer may not have been able to see if there was a hot tub.”

As a result of Tessmer’s cross-examination, the police claim that Hiney had unusually high hydro consumption was struck from evidence.

Phone Taps

Phone taps are perhaps the most problem-riddled method for gathering evidence to justify a search warrant.

In June of 1995, Calgary police completed an investigation known as “Operation Weedeater”. The case ended with 55 search warrants covering about 28 residences, with charges against 21 people. In May of 1998, when lawyers were finished sorting out all the mistakes made by police, only five people had been convicted. Fourteen others had charges dropped or stayed when Judge Hamilton ruled that police had improperly conducted many of their phone taps and all the search warrants.

Pat Horner, an expert in marijuana matters as a former federal drug prosecutor, had his client, Bradley Anhorn, included among those freed from charges.

“There were many telephone calls thrown out because of improper procedures respecting the wiretap,” Horner relates. “The Chesson ruling was one reason given for the decisions. In a wiretap you are supposed to disclose the names of all the people you think will be communicating on the tap. If they have enough info to know you might be on the line, they have to list you. They failed to list my client, so his telephone calls were excluded and he was later acquitted.”

If police don’t have enough information to know you might be on the line, they still must list where you are calling from, if they know it. The date and time of the call are also important. Miss any of the pertinent information, says Horner, and the evidence may be inadmissible.

“In some cases, they knew from AGT records where some callers were,” Horner recalls, “and didn’t put the locations in the transcripts or on the statement of time, date and place and parties under Section 189.5. Transcripts and the statement must be delivered as part of the disclosure to the defendant.”

Pat HornerPat HornerContinued Complications

Although Hiney’s Lawyer, Tessmer, had Hiney’s hydro records struck from evidence, there was still more to support the police warrant against Hiney’s home. While looking for a reason to get a warrant, the officer claimed that she had also seen curtains on basement windows, placed there to stop grow-op lights from penetrating.

“Which is to say that the curtains were of a material that would prevent light from penetrating,” Conroy says. “But that is misleading. How would they know whether the curtains were of a material that would not allow light to penetrate? So those lines in the ‘information to obtain’ [the warrant]were also struck from evidence.”

There were other complications in Horner’s Weedeater case, as well. Even though many of the telephone calls pursuant to the wiretaps were inadmissible, the 55 search warrants were still considered valid, or at least they were until Horner and other lawyers got on the case.

“The first reason warrants were invalid was that police went to a provincial court judge to get the warrants signed after they had been refused by a JP,” says Horner. “Under the criminal code for issuing a search warrant, JP’s and provincial judges have the same power. One cannot overrule another.”

Other warrants were dismissed for other reasons.

“One of the major reasons was that the provincial court judge didn’t read all the affidavits before signing the warrants,” says Horner. “We determined that it would have taken 6-7 hours to read all of the attached information and that he just didn’t take enough time to have read it all.

“Also, four of the search warrants weren’t signed and they went back to get the judges to sign them after they had entered some of the residences to conduct the searches. But the officers couldn’t remember which four they were. So we argued that if they couldn’t say which four they were, that all of the warrants were potentially invalid. The judge agreed.”

Crimefakers

Wayne Hiney, absolved of abnormally high hydro usage and curtains on his windows, still was not free ? to the consternation of his lawyer, Tessmer.

“In the Hiney case, the judge considered the evidence before the JP, and not withstanding the deletion of the paragraphs relating to the hydro and the curtains, decided that there was still enough evidence to supply a warrant,” relates Conroy. “There was a Crimestoppers tip there, and he decided that it was sufficiently reliable. But there is nothing to stop some fellow officer from calling in and making the ‘tip’. We are not allowed to check the authenticity of these tips. It is subject to abuse, I think.”

Lawyer Alan Young agrees.

“To me, Crimestoppers operates in a manner that the tip, in and of itself, is usually not sufficient to initiate an investigation,” Young says. “Police usually do some rudimentary form of investigation to corroborate some details of the tip before they act, but quite frankly, it’s not a lot.”

According to Young, there is a growing tendency to rely on relatively unsubstantiated tips.

“In the US,” Young says, “which has a much more developed doctrine because of the longevity of their constitution, even by 1983 anonymous tips could not be used to get a warrant. Now with a little bit of corroboration, they will be sufficient. The threshold for intrusion in North America is quite low right now, especially in the area of drug-law enforcement.”

Young traces the increased use of anonymous tips back to the Reagan era.

“The criminal justice system historically was built on two elements, fear and greed,” asserts Young. “Greed was reflected in the fact that they used to pay people for information. In the latter half of the nineteenth century and the early part of the twentieth century, we stopped paying people. But with the narcotics trade being virtually impenetrable, they started to pay again. The height of this informant issue was with Nancy Reagan, of course, telling children to turn in their parents.”

Pat HornerComing Through the Door

The SWAT mentality has metastasized, spreading through law enforcement like a cancer, and it is reflected in the brutality with which cops come through the door of a home.

Some homeowners, like Bob Erb, keep their front door open, perhaps to avoid regularly having to replace it. Erb has been a member of the Cannabis Community for some time.

“The police have been to my place at least a dozen times in the last 25 years, and they never had guns,” recalls Erb.

On August 26, 1997, Erb had a chance to witness how law enforcement has changed.

“My front door was open. We just finished smoking a joint. We saw 2-3 vehicles come into the yard, some circled the yard. Some of the officers hopped around outside and in the windows. Like they were clearing a crack house in East LA. Like on the cop shows. Their veins were bulging, they were hopping and screaming, pointing shotguns. They had toques and scarves and army fatigues. Six cops at least came through my front door. One pointed a gun right at my chest.”

“They were screaming, ‘do something with the dog or we’ll do something about it.’ It’s a miniature poodle? we put her in the bathroom, or they probably would have shot her.”

“One [officer]jumped from door to door, squaring himself in each doorway with his shot gun leveled waist to chest high. My daughter has a blow drier. If she had been using it when the cops came then ‘Kaboom’, they could have killed her.”

Erb was lucky. If his door had been closed, police would have smashed it in. He also has two children who may have been seriously harmed by brutal police lunacy, but who escaped injury. Two of his friends were also in the house at the time of the raid and were miraculously unharmed.

It is routine for police to smash in the front door. At least one person, landlord Jack Wright of Hamilton, Ontario, has taken the police to court, sued them for damages to a residence he leased to a grower, and won.

Divisional Court Judge Thomas Lally decided that police used unnecessary force when battering down two doors and damaging property in Wright’s complex on June 7, 1996. The judge awarded Wright $5,000 dollars for repairs.

Sergeant Brian Cookman, attached to the station that conducted the raid, was surprised by the ruling.

“As it did originally, it catches us off-guard,” Cookman says. “[The Controlled Drugs and Substances Act] says we are allowed to use what force we deem necessary. We’ve never had a problem in any other entries we’ve made. Normally, if it’s a rental property, landlords are more than happy to have this activity [concluded].”

John Conroy disagrees: “There is some question that if they come with a ram, that’s not reasonable if all they had to do was knock.”

Although police are seldom challenged on their policy of breaking down doors, it is even considered unconstitutional in the US, where police brutality is so bad that Amnesty International recently campaigned against it.

In 1997, the US Supreme Court voted unanimously not to create an exception to its 1995 ruling that “no-knock entries” are almost always unconstitutional under the Fourth Amendment restriction against unreasonable searches. According to the decision, police have to obtain a special warrant to conduct no-knock entries, explaining why the search wasn’t in violation of their suspect’s rights.

Pat HornerSeizing the Grow

Invalid warrants aren’t the end of police worries. They must conduct themselves in a reasonable and lawful manner during and after the raid.
“Last week,” says Conroy, “the Crown dropped a case against one of my clients because the officers helped themselves to several fruit juices from the fridge during the search ? normally this is called ‘theft’.”

In Canada, with lawyers like Conroy and Tessmer defending the constitutional nest, police must also be careful with grow equipment.

“Usually, police have so many cases, they will destroy all the plants, lights, and everything and just keep the key exhibits, like the analyzed samples” reveals Conroy, “We found out that it is the policy of Vancouver Police to destroy everything before trial. And they are not authorized to do that until afterwards, and then only with court approval.”

In Wayne Hiney’s case, the decision of police to destroy his grow equipment was the deciding factor.

“In the Hiney case, police seized a bunch of things, and then began to destroy them,” says John Conroy. “They call it ‘dismantling’. It is not an offence to possess hydroponic equipment. Police have a choice: they can seize it and remove it and leave it intact pending trial, or leave it there. The destruction of grow equipment relates to the reasonableness of the search.”

Hiney was about to get a break.

“They destroyed the equipment because of their policy,” says Conroy, “and the judge concluded that they were wrong to do that.”

According to Judge Graham in his decision, the Hiney case was to be dismissed because, “? the Controlled Drugs and Substances Act [CDSA] does not authorize the actions taken by the police to dismantle or disable the hydroponic equipment. The actions taken by police? disregards (a) the presumption of innocence? and (b) circumvents the provisions of Sections 13 to 22 of the [CDSA], and related sections of the criminal code.”

John Conroy notes, however, that because the decision was made in provincial court, it is not binding on other Canadian provincial courts. Yet he also holds out hope that the decision will be made binding in higher courts.

“Why does parliament set out an elaborate policy of what you do with things seized if the cops are going to destroy it all before you go to trial?” asks Conroy. “I have another [destruction of equipment]case coming up in the Supreme Court of British Columbia, and we will see if the high court agrees with this argument. If it does then that decision will become binding on the lower courts.”

The Supreme Court is where battles in the War on Drugs are won and lost. Lawyers who approach the Supreme Court on such issues risk jeopardizing their fraternity with the bar and with law-enforcement authorities, because they challenge the very basis upon which both police powers and thousands of marijuana cases hinge. John Conroy is hungry for a day when he might have enough marijuana growers on retainer that he could challenge the laws more fervently.

“The government has unlimited taxpayers’ dollars at its disposal,” says Conroy, “whereas the defence does not. The creation of a fund to fight back would help to level the playing field, and help to establish the goal of semi-prohibition [with legal possession only].”

According to Conroy, semi-prohibition is a situation from which all growers should realize they will benefit, even those who argue that full legalization means lower profits.

An astute lawyer can often free you from charges. But, with a little luck, an astute grower will likely remain free from charges without a lawyer. And the more lenient the laws become, the less chance a grower has of realizing that nightmarish day when police come smashing through the door, pointing automatic weapons at children’s heads…Pat Horner

? Contact lawyers John Conroy, Alan Young or Pat Horner for interviews, or if you wish to retain them for marijuana-related charges. No general questions, please.
? John Conroy: (604) 852-5110; [email protected]
? Alan Young: (416) 736-5595; [email protected]
? Pat Horner: (403) 270-2641; [email protected]
? “Bob Erb” is available for comment: (250) 635-1409

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