TWO men who were stopped driving away from a West Vancouver grow-op with more than eight kilograms of marijuana in their car have had their case tossed out after a judge ruled police violated their rights to get the evidence.
Phat Van Tran, 50, and Huu Hung Nguyen, 43, of Vancouver were both charged with production of marijuana in connection with a grow operation raided by West Vancouver police in May of last year. Police seized more than 600 pot plants from the home at 3939 Viewridge Place, a quiet residential area.
But prosecutors abruptly dropped the charges against both men recently after North Vancouver Judge Judy Gedye ruled Nov. 2 that none of the evidence connecting the men to the grow show was admissible.
Gedye ruled police had violated their rights during the investigation.
Police were first alerted to a suspected grow-op in the house by a tip on April 4, 2011. The tipster said nobody seemed to live in the house, but a vehicle would appear in the driveway every afternoon.
In May, Tran and Nguyen were arrested driving away from the house in a vehicle that also contained more than eight kilograms of marijuana bud in plastic garbage bags.
But in a voir dire, held to determine what evidence should be admitted at trial, defence lawyer Jay Solomon said police had no justifiable reason to stop the car with the two men as it drove away from the house the day before the raid, or to stop another vehicle driven by Tran in North Vancouver the day before that.
In court, Corp. Mark Braithwaite of the West Vancouver Police Department said he stopped Tran because the driver was going more than 100 kilometres an hour in an 80 km/h zone and he had suspicions the driver might be impaired. But he acknowledged in his testimony another police officer who had been doing surveillance on the suspected drug house had originally asked him to stop the car.
Defence lawyers argued the traffic stop was a ruse carried out mainly to further the grow-op investigation.
Braithwaite testified after he stopped Tran for speeding, he smelled marijuana and took him back to the station. Police searched Tran and found two grams of marijuana on him. They released him, but not before one of the officers involved in the grow-op investigation searched Tran's car, finding a variety of empty plant pots and electrical equipment.
Solomon argued police didn't have proper grounds to carry out the search.
Solomon added the fact the two men were seen leaving the suspected grow-op and loading three garbage bags into a vehicle the next day was also not enough reason for police to stop the pair.
"People load garbage bags into vehicles all the time for a variety of reasons," he said. They might be "taking clothes to the Sally Ann" or "taking stuff to the garbage dump," he said.
But without information gleaned from the traffic stops - and the bag full of marijuana in the car - police would not have had enough evidence to get a warrant to search the house, defence lawyers said.
The judge agreed, ruling evidence obtained with the flawed search warrants could not be used in the trial.