Police marijuana case goes to pot
A police bid to sniff out a marijuana grow operation went up in smoke yesterday when a judge ruled a search warrant invalid.
Justice Vaughan Hembroff agreed with defence counsel Pat Fagan that the information used to obtain the warrant from a justice of the peace contained inaccuracies. But Hembroff said “youthful enthusiasm,” not dishonesty on the part of police investigators was what led to the fatal breach of the accused’s rights. The Court of Queen’s Bench judge threw out charges of possession of marijuana for the purpose of trafficking and production.
Hembroff ruled Const. Kerra Giesbrecht and partner Const. Chris Terry conducted a “knock and sniff” investigation at the accused’s Martin Valley Way N.E. home on May 12, 2002. The pair, responding to a complaint from a neighbour, arrived in the area to smell the odour of marijuana wafting from the accused’s residence. When they knocked on the door and the accused answered the smell became more intense.
As a result, the accused was arrested and a warrant was obtained.
But the information sworn by Giesbrecht to get the warrant was misleading, Hembroff said, in ruling the 13 kg of drugs later seized could not be admitted into evidence.
Among Giesbrecht’s errors was to tell the justice of the peace the accused had marijuana leaves on his clothing when all she saw was two 1 cm particles.
She also said police were acting on an anonymous tip when they knew the neighbour’s name, but that person wished to remain anonymous.
Patrick C. Fagan is a highly accomplished lawyer with an impressive career spanning over 35 years in the legal field.