Since February 19th 2013 the Supreme Court (Hoge Raad) didn’t care much for unlawfully obtained evidence. Criminal judges have since been taught that they aren’t allowed to act as a police officer towards a police officer. The District Attorney is in charge of the investigation and is capable of holding down their own. If in court the investigation doesn’t seem to be accurate, the judge must follow a strict schedule. Has during the investigation a standard been infringed irreversibly or can it be restored? Does the standard extend to protecting the suspect? Has the suspects interests been seriously compromised? To make a long story short, in the rule the judge must only determine if the police have ignored the law. After expressing the words “bad police officer, shame on you”, the case will continue and the suspect will receive a fitting punishment. To keep up appearances sometimes a reduction on the punishment will be given. “I would have sentenced you to 120 hours of community service, but because of the irreversible infringed standard you will receive 100 hours of community service”. The police aren’t taught a lesson by doing so. In contrary. The signal the judge sends is that the police are allowed to mess up. But the suspect doesn’t go free.
With this knowledge I studied the umpteenth cannabis case. With embarrassment I came across the cause of the investigation. A clerk at the council office sent an informal e-mail to an acquainted policeman. Could you carry out an investigation on address X. That house is up for sale and it is being remodelled, but the neighbours seldom hear any noise. The owner has been involved with cannabis before. Nothing was mentioned about the smell of cannabis, the sound of fans or the sight of weird light shimmers. But the officer seemed flexible. He called his friends at the electric company and they followed up on the request without any questions. Bingo. A striking pattern of moments turning on and shutting down were noticeable. That the measurement was based on 15 households didn’t matter. Armed with a warrant to enter the house the police went on their way. The police officer showed my client the warrant. He then opened the door. In the cellar the police officer requested my client to show him where the cannabis cultivation site was. Otherwise the police officer would go look for it and cause damage to the walls by doing so. My client admitted it and removed a wall panel. The cannabis cultivation site appeared. Everyone was happy. Another house that could be closed down for three months by the Mayor. A nice headline in the local paper and another villain caught. The subpoena followed. In the police report it was mentioned that the warrant to access the house hadn’t been used and that my client had given his consent. Well try and prove this as a lawyer. I asked the district attorney to cross examine the police officer on duty as a witness. To my surprise he granted my request. The judge gave me the opportunity to ask the police office questions. What do you think? Within seconds the police officer admitted that he had shown my client the warrant. He also admitted to threatening to damage the walls if he didn’t co-operate. Not so voluntary. This testimony shone a different light on the case.
I referred to a letter the National Ombudsman had sent the chef of the national police earlier that year. The police chef had ensured the National Ombudsman that the police would not enter homes if there wasn’t a careful investigation to support the suspicion. And of course the police would act within the boundaries of the law. Off course. But stick to your promises is what I told them during the trial. The District Attorney responded. The police officer was still present. He did what any District Attorney should have done, but seldom do. Starting an investigation without a reasonably suspicion isn’t acceptable. By doing so you undermine the law. The e-mail from the clerk in combination with the measurement involving 15 houses doesn’t count as a reasonable suspicion. With that I don’t want to build a case. I could hardly believe it. Did he really just say that? I pointed out to judge that the Supreme Court has mentioned that not the judge but the District Attorney must watch over the police. The only right decision is that you should give the District Attorney the opportunity to send across a message by acquitting my client. Hopefully that will teach the police. The judge turned to my client and said: “Sir, you have been caught cultivating cannabis. That is not allowed. You have confessed to cultivation cannabis and stealing electricity. Nevertheless I am not going to punish you. The police didn’t respect the law. I agree with the District Attorney and your lawyer. Therefore I acquit you”.
Within certain groups these kinds of rulings (that are rare) are a disgrace for justice. Do you know when they completely think differently about that? When at one point you become a suspect. In my opinion the district attorney deserves a medal. Only by doing so you can convince the police that the laws are meant to be complied by, by everyone and that no-one stands above the law. Not even the police.
Translated by Joanna McKernan. Joanna works as a Lawyer for the law firm Beckers & Bergmans in Sittard. She is a native English speaker. Joanna has a lot of experience in cannabis related civil cases.
André Beckers (Lawyer)
available on phone: 003165317489
Joanna McKernan (Lawyer)
available on phone: 0031467600030