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Couple not guilty after Penticton RCMP botch warrants in grow op bust
Botched search warrant procedures by Penticton RCMP has led to a not guilty verdict in what a judge called a “sophisticated” marijuana grow operation.
Judge Brad Chapman said the rights of Anthony and Jacqueline Prowse were not respected when RCMP arrested the couple and searched their Naramata property on Rounds Road on July 30, 2009. The couple were facing two charges of possession for the purpose of trafficking and one count of production of a controlled substance.
In his reasons regarding the search warrants, which were argued during a voire dire, Chapman said RCMP had been following an anonymous tip they received from Crime Stoppers. An investigation ensued and other police sources corroborated the tip.
In the application for the first search warrant, RCMP officer Const. Livingston provide in the information that the Fortis electricity consumption was three times that of similar dwellings in the area but did not provide the records, only a summary. Also included in the information to obtain a warrant was thermal surveillance that showed high heat signature from the dwelling and the officer noticed a distinct odour from the property.
RCMP arrived at the Prowse’s home on July 30, 2009 to search the residence and find Anthony Prowse in the driveway, who informed Mounties two people were in the outbuilding. Upon a search of that building for “officer safety,” RCMP discovered a grow operation. Const. Livingstone then had to go back to a Justice of the Peace for a second warrant to search the outbuilding. It was during this time relatives of the Prowse’s had pulled up to the Round Rounds house and testified that they saw RCMP officers taking black garbage bags from the outbuilding and when asked what was happening an officer said they were “destroying a grow operation.” This was before RCMP had the legal right to search the outbuilding. Also, while RCMP were awaiting the second search warrant both of the Prowse’s were arrested, which Chapman said was unlawful because RCMP could only go off the evidence they had from the first search warrant. As well, their rights were violated because of the delay in time before they were able to access council.
Chapman said from the information he heard it appeared as though the Prowse’s had a sophisticated operation. RCMP had issued a press release after the drug bust stating they found 560 marijuana plants, 49 pounds of cultivated marijuana, $11,000 in cash, grow equipment and other drug trafficking paraphernalia that was seized as evidence. RCMP also said at the time that during the search Mounties discovered a passageway leading to an extremely sophisticated bunker-style marijuana grow operation built underground beneath the concrete patio of the residence.
“It would appear the home and outbuildings, in my view, were constructed or renovated for the purpose of a marijuana grow operation,” said Chapman.
He said even though he has no doubt the couple were undertaking illegal activity, “the public does expect law enforcement to respect their rights and freedoms.” Chapman concluded that almost all of the information gathered and items seized by police would have to be excluded from the evidence. Crown counsel Tyrone Duerr said in light of this he would have to rest his case, defence for the couple, Neil Cobb then followed suit.
“With no evidence before me to prove beyond a reasonable doubt, I find you not guilty,” said Chapman.
In November of 2011, an Olalla couple pled guilty to the cultivation of a controlled substance after they were discovered by police in the outbuilding of the Prowse’s Naramata residence during the drug raid.
Michael Young and Karen Stapleton were acting as pruners or clippers to help harvest the marijuana.
Young had a prior record for production of an illegal substance and received 18 months house arrest and 120 hours of community service work.
Stapleton was sentenced to 12 months of house arrest and 50 hours of community service.