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POLICE SHOULD HAVE KNOCKED IN POT RAID, COURT RULES

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Vancouver police officers who used a battering ram to break down the door
of a suspected marijuana-grow operation without first knocking violated
one of the most fundamental rights of citizens, the B.C. Court of Appeal
ruled Friday.

A three-judge appeal panel unanimously found that the breach of a couple's
rights was so serious that the evidence obtained during the 1999 raid
should be excluded from the case against Bradley Cecil Schedel and his
wife, Kuestan Hassen Schedel.

That decision resulted in their being acquitted of operating a
marijuana-growing operation.

Beginning in 1996, the Vancouver police department adopted a policy of
effecting unannounced forced entry, even when they had no specific reason
for doing so, the court said.

The policy was changed in early 2000, after it was questioned at the trial
of the Schedels. Vancouver police now knock first and announce they have a
search warrant.

The appeal court judgment said the knock/notice rule has been part of the
common law for centuries and is of fundamental importance in protecting
residents from unreasonable search and seizure of their homes.

Appeal court Justice William Esson, in a written judgment released Friday,
said the evidence of the grow operation in the Schedel case could have
been obtained without violating rights protected by Canada's Charter of
Rights and Freedoms.

The judge pointed out that when police smashed down the front door, the
back door of the home was open.

"The circumstance that the Vancouver police department deliberately
adopted a policy of ignoring the most fundamental rule protecting citizens
from an unreasonable invasion of their dwelling put this violation, in my
view, at the most serious end of the spectrum," Esson said.

The search occurred in May 1999 while the couple were living in a house
with a basement.

On May 12, while investigating a suspected trafficking operation in a
nearby residence, Vancouver police Detective Constable Ian Thurber, a
member of the drug squad, detected some of the usual symptoms of a
marijuana grow operation: The smell of growing marijuana, the sound of
fans and material covering the basement windows.

That evening, Thurber mentioned to a B.C. Hydro technician, who had
special responsibility for tracking down electricity theft, that police
would be applying for a search warrant.

The technician conducted an investigation into possible theft of
electricity at the house about midnight. The next day, he advised the
officer that he believed theft of electricity was occurring at the
residence.

Thurber promptly applied for and obtained a warrant to search for evidence
of theft of electrical services. It made no reference to drug offences.

A team of eight officers arrived at the residence at about 6:30 p.m. They
entered through the front door without any prior warning or knock other
than the impact of a battering ram, which was used to smash open the front
door.

Six officers entered through the front door with guns drawn. The third
officer to enter shouted words to the effect that the police were there
with a search warrant. The other two members of the team stationed
themselves outside the rear door, which was open.

At trial, the judge found the forced entry was a breach of the Schedels'
rights but rejected their application to have the evidence excluded.

Thurber testified at the Schedel trial in 2000 that the reason for using
the unannounced forced entry policy was that it is the safest method "to
overcome any potential resistance by surprise and present a force level
which does not allow the occupants any choice but to comply ... It's safer
for ourselves and for the occupants."

He said police generally do not know who is in the suspected grow
operation prior to entry.

Thurber testified that in 1997, his unit executed about 120 search
warrants and found "readily accessible" firearms in about 10 per cent of
the cases. Other kinds of weapons (clubs, knives, blunt instruments) were
found in 50 to 60 per cent of grow ops, he said

In 1998, there were 131 marijuana-grow searches and three firearms were
found. He did not know how many of those guns were legally possessed.

He also could not recall at trial any occasion when police had knocked and
been attacked by the residents inside. He said the practice of not
knocking or giving notice changed a month or so before he gave evidence on
April 26, 2000.

B.C. Appeal Court Justice Mary Southin wrote: "Lest this case be taken as
criticism of individual peace officers who have carried out searches in
accordance with the policy in issue, I consider criticism of that policy
is properly directed to the police board."


Author: Neal Hall
Source: Vancouver Sun
Contact: sunletters@pacpress.southam.ca
Website: Vancouver Sun
Pubdate: Saturday, June 21, 2003
 
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