In the Netherlands there are laws that apply to everyone. These laws also apply to the police and the district attorney. An important Rule of Law is that the police may search your house or office, without your consent. This is only possible when there is a reasonable suspicion. But what is reasonable? As of March 2013 the Supreme Court (Hoge Raad) doesn’t have a problem with unlawfully obtained evidence, the police keep pushing the boundaries and even exceeding the boundaries.
The criminal case of a person who cultivates cannabis, that I will be describing in this article started off with a tip. Not like often the case the tip wasn’t from an anonymous reporter, but from a police officer who had overheard a story about cannabis being cultivated while he was at a birthday party. Where and when he had overheard this story wasn’t clear. To verify the tip the police investigated the area near the mentioned address. The smell of cannabis wasn’t noticeable, no lights from assimilation lights were seen and no fans were heard. Next a warmth camera was used. The warmth camera had shown that there was a heat source near the drain pipes on the roof. That seems accurate. Through the drain pipes on the roof the hot air from a fireplace or a heating system leaves the house. A warmth camera doesn’t measure the temperature. A warmth camera only makes heat visible that’s escaping. Nothing more. The only conclusions that you can make is when you compare the outcome to similar objects. In the police practice this is often underestimated, so that “false positive reading” often occurs. The national Ombudsman concluded this in 2013. In this criminal case the suspicion was based on a rumour overheard at a birthday party, complemented with a meaningless thermal image. The police entered the house of the suspect, against his will and went looking for the cannabis cultivation site. An empty cultivation site was found, which hadn’t been used for quite some time. The suspect was arrested in his house. During his interrogation he turned out to be a talker. He told long stories that in the end didn’t make any sense. In the jumble of words seemed to be a confession. He had previously cultivated cannabis plants, but of the 1000 plants that he grew, there was barely any result. He had earned € 5000,-. The police went along in the amount of plants that the suspect had mentioned, but didn’t believe in failed crop.
A calculation was made of the profit that he would have earned. The profit was estimated at € 100.000,-. The poor man was startled by this number and he approached me. My conversations with this man didn´t go very smoothly. How could the police think such things? Can’t they see that I don’t have anything? When I went through his testimony with him, he told me that is wasn’t correct. This wasn’t how he spoke. Those weren’t his words. I showed him his initials at the bottom of each page and his signature at the end of the testimony. It took a lot of effort to convince him that there no point in claiming that he didn’t make that statement. Let this be a lesson for the readers. Everything you tell the police will be written down. During the trail my client did his best to give an understandable testimony. And it worked. In my closing argument I emphasized that the police didn’t have the right to start the investigation, because lawfully speaking there was nog reasonable suspicion. If the judge would allow the police to start an investigation based on a rumour that can’t be verified, then the floodgates are open. At that point we can say farewell to our State of Law. The judge appeared to be sensitive to these arguments. Because an investigation was started without a reasonable suspicion my client was acquitted.
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