LAWYERS for two men charged with running a sophisticated marijuana grow-op in West Vancouver argued in court to have the charges tossed out, saying police violated their rights to get the evidence.
Phat Van Tran, 50, and Huu Hung Nguyen, 43, of Vancouver are 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.
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.
In court last week, defence lawyers Jay Solomon and David Walsoff asked provincial court Judge Judy Gedye to toss out that evidence, saying police acted improperly to obtain it.
In a voir dire, held to determine what evidence should be admitted at trial, 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 on May 11, 2011 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.
Solomon said the defence's position is the traffic stop was a ruse carried out mainly to further the grow-op investigation. "There were no real highway safety concerns," he said.
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 eventually decided not to recommend charges.
They released Tran, 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.
He said even if the items found were consistent with a grow operation, "that doesn't mean that they came from the suspect house," or an "active grow operation."
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. "It's a common type of activity."
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.
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.
Crown counsel Jay Havelaar told the judge both the traffic search and subsequent searches were legal.
Just because the police officer had other reasons to stop the driver besides speeding "does not transform a lawful stop into an unlawful one," he said.
The judge, who is hearing the case in provincial court without a jury, has reserved her decision on the evidence until next month.
