By: William Jaksa Criminal Litigation July 23, 2018

DEFENDING MARIJUANA PRODUCTION & CULTIVATION CHARGES

COMMON POLICE EVIDENCE IN GROW-OP INVESTIGATIONS

Police are required to obtain search warrants before conducting searches of private properties in relation to marijuana grow-ops. Depending on the nature and scope of the grow-op investigation police sometimes also seek judicial authorization to intercept private communications. The extent of any police investigation depends on the quality of their evidence and findings. Commonly police rely on a combination of the following types of evidence to establish the grounds for the issuance of search warrants for suspected grow-ops:

Information from the Land Title Registry
Information from Confidential Police Informants
Tips from the public and calls to Crime Stoppers
Results from purchase attempts by undercover police officers
Arrests and motor vehicle stops of people related to the suspected grow-op property
Hydro Usage Reports
Results from police surveillance
Information obtained through police database searches
Information received from Health Canada

Public Tips and Confidential Police Source Information

Often a police investigation into a suspected grow-up commences with a tip from the public or information received from a police informant. The police attempt to corroborate the information received in an effort to move the investigation forward to build grounds to justify the issuance of a search warrant. Police will compare the information they received from the tip against data within their police databases and against hydro usage reports, criminal background checks, previous related court cases and their own surveillance.

The quality, detail and credibility of the source information are important factors on how the investigation will move forward.

Police are particularly interested in detailed information about the location of the suspected grow-op site, the background information of the people operating the site, whether there are connections to known criminal organizations, and the approximate production capabilities of the suspected illegal grow-op.

The quality and detail of this information assists police in authenticating the tip, which lends more credibility to the source of the information, which then coupled with the police investigation assists in ensuring that a judge will issue a search warrant for the suspected marijuana production site. Further, information from a previously proven credible police informant carries more weight with both the police investigators and the judge being asked to issue the search warrant.

Hydro Usage

Indoor production of marijuana requires a lot of electricity. Even smaller-scale grow operations create noticeable spikes in hydro usage that are easy to identify. Hydro providers have at times noticed unexplained increases in hydro usages that have lead to police investigations into suspected cannabis production sites.

The examination of hydro usage reports can give experienced investigators a sense of the size of the production site and an estimation of which stage of the growth cycle the marijuana plants may be in.

Hydro usage reports are important supporting evidence in these types of investigations. They often substantiate other aspects of the police investigation; however, a usage report by itself is not evidence of cannabis production. Inversely, hydro usage reports that fail to show irregular energy consumption patterns or spikes does not preclude a finding of an operating production site.

Illegal marijuana grow operators will often bypass hydro meters to avoid detection and to reduce their energy bills. The bypassing of hydro meters is always persuasive evidence at trial that the grow-op was illegal and well organized.

Often the hydro-bypass will lead to additional criminal charges and will be considered aggravating factors on sentencing hearing that will increase penalties.

Surveillance of Suspected Grow Location

Police will often spend a considerable amount of time and resources conducting surveillance of suspected marijuana productions sites. They are interested in learning as much as possible about the people connected to the operation of the grow-op and possible connections to other locations and criminal organizations.

The results of the police observations are used to connect suspects to the production sites, to their respective distribution networks and corroborate other supporting evidence to obtain a search warrant.

Police surveillance is always an important factor and consideration when judges are considering issuing search warrants. Judges always want assurances that police have been diligent in their investigations and have corroborated information they have received from their informants.

HOW CRIMINAL DEFENCE LAWYERS CHALLENGE EVIDENCE FROM SEARCH WARRANTS IN GROW-OP CASES

When defending marijuana cultivation charges criminal lawyers often challenge the strength of the evidence that supported the issuance of the search warrants and the manner police used to obtain it. A lawyers objective is to have a judge exclude evidence that police improperly obtained or that breaches an accused person’s Charter Rights.

Challenging the Search Warrant

A criminal defence lawyer will challenge the evidence collected, both the reliability of the evidence and the constitutionality of how it was obtained by police, that supported the issuance of the search warrant. Often challenges are focused on the assumptions and inferences that are supported by specific points of evidence, the reliability and currency of the information provided to a judge, the accuracy of the police evidence, and the manner in which police collected the evidence.

The objective is to demonstrate to the judge that an accused person’s Charter Rights were violated by the police.

In matters that involve wire intercepts of private communications, a Garofoli Application may be brought at the commencement of trial to challenge the admissibility of any wiretaps. If successful a Garofoli Application will exclude evidence from being introduced at trial.

Verifying the Warrants

A criminal lawyer that defends illegal grow-ops as a matter of course will ensure that the search warrants were technically correct and the police remained within the scope of the warrant parameters. Ensuring that warrants were executed on the proper dates within the authorized times and that items seized by police were lawfully included within the request by police.

Challenging Police Evidence Collection Methods

Police are held to high standards in the manner and methods in which they collect evidence. Given the environment in which police must at times conduct investigations they often face challenges that require them to use creative and innovative methods to collect evidence.

Toronto police have recently admitted to using Stingrays to capture private metadata in the course of several investigations. This is a method of indiscriminately capturing and recording metadata from cell phones has been determined to not be constitutionally valid as it infringes the privacy of people not the focus of the investigation.

Police rarely have prior judicial authorization to intercept communications through devices like the Stingray. If the defence counsel can demonstrate evidence was collected through unconstitutional methods then the evidence may be excluded from use at trial.

GROW-OP DEFENCE LAWYER

If you find yourself charged with drug offences you should consider experienced counsel to assist you. There are a number of drug-related offences that carry mandatory minimum sentences that can tremendous impacts on your liberty.

William Jaksa is a Toronto Criminal Defence Lawyer with experience challenging search warrant and wiretap warrant.