Ruling Expected To Impact Police Use Of Search Without Warrant For People Alleged To Have Been Smoking Cannabis.
Chris Fowlie was found not guilty in a landmark ruling, after being arrested for possession of cannabis, following a supposedly “random” street search in central Auckland on June 17 2001. He was President of NORML at the time.
Justice Gittos’ written judgement was delivered at 9.30am, Friday 15 February 2002, at the Auckland District Court. The landmark ruling found the charge was not proved on the facts, and also found the search to be unreasonable and the evidence inadmissible.
Judge Gittos said: “On the state of evidence before me my mind is not persuaded beyond reasonable doubt that the Officers were minded to search solely by reason of detecting a smell of cannabis emanating from the Defendant. Nor am I satisfied that it has been proven beyond reasonable doubt that proper advice pursuant to the Bill of Rights Act was given to the Defendant before the search was undertaken. In those circumstances, the search has not been shown to be lawful and the evidence derived from it should not be admitted. On the facts therefore I do not find the charge to be proved.”
Full Written Decision
IN THE DISTRICT COURT
NEW ZEALAND POLICE
CHRISTOPHER WILLIAM FOWLIE
Hearing: 8 February 2002
Appearances: Mrs Scott for Informant
Mr Winter for Defendant
Judgement 15 February 2002
RESERVED DECISION OF JUDGE JP GITTOS
 Mr Fowlie is charge that on 17th June 2001 he had in his possession a Class C controlled drug, namely cannabis plant contrary to the provisions of section 7 of the Misuse of Drugs Act 1975.
 At about 1.30 am on 17th June 2001, the Defendant was standing in Karangahape Road conversing with a friend, Carl Wanoa. They had earlier met for coffee and were, as the Defendant put it, saying their goodbyes before going their separate ways.
 At that time, a Team Policing unit was active in Karangahape Road. Two members of that unit – Constables Carl Pennington and Karen Hoshek – were dealing with some persons whom they subsequently arrested at a point not far from where the Defendant and Mr Wanoa were standing. Constable Hoshek said that the Police were engaged in a “sweep” of Karangahape Road, the purpose of which was to maintain a high Police presence, and to speak to people to “find out what they were doing”. She and Constable Pennington noticed that the Defendant and Mr. Wanoa had been watching them and she approached Mr. Fowlie to ask him what he was doing there. She acknowledged that there was nothing about Mr. Fowlie’s conduct or presence which presented a problem requiring investigation and that her approach of him was a matter of routine only. When she approach, she said she noticed a strong smell of cannabis emanating from the two men and she suspected that Mr. Fowlie has recently smoked or was in the possession of cannabis. She said she told the Defendant that she had reasonable cause to believe that he had possession of cannabis and that she intended search him under the provisions of s 18(3) of the Misuse of Drugs Act. She said that she advised Mr. Fowlie as to his rights to silence and to access to legal advice, pursuant to the New Zealand Bill of Rights Act and she then asked another male constable, Constable Roberts, to conduct a search of Mr Fowlie. She said she did not search him herself. Meanwhile, Mr Wanoa was taken aside and searched by Constable Pennington.
 In her presence, Constable Roberts conducted an initial search of the Defendant and in one of his trouser pockets located a small tin which, when opened, was found to contain a small amount of cannabis and some cigarette papers. Constable Hoshek said she then arrested the Defendant and again advised him as to his Bill of Rights and at that stage Constable Roberts took the Defendant off Karangahape Road into a side street where he was further searched. This further search involved requiring the Defendant to open his trousers, while the Constable inspected his crotch by torchlight. Before this was done, the Defendant was offered the opportunity to be taken to the Police Station for this further search. He said he declined this, believing the matter to be a minor one, and apparently having some hopes of not going to the Police Station at all. It is not clear from the evidence that Constable Roberts explained to the Defendant the ambit of the further search that he proposed to carry out. Suffice to say that the Defendant said that he felt violated by being subjected to such procedures in public. The more extensive search revealed nothing further of note. The Defendant was then placed in the Police wagon with various other detainees and eventually taken to the Auckland Central Police Station, processed and released later that night.
 The Defendant is the president of a political organization known as Norml. That organization espouses and promotes the belief that cannabis should be legalised. The Defendant is active in promoting those views politically and tacitly acknowledged in evidence that he is a personal user of cannabis. It is evident that he believed on the evening in question that he may have been recognised as an activist in this cause by the Police and inappropriately targeted. At the point that the tin containing cannabis was discovered, and before the further and more extensive search by Constable Roberts, the Defendant raised this issue with the Officers. This appears to have provoked a somewhat terse response from Constable Hoshek, and there was some conflict in the evidence as to her manner of dealing with the Defendant and the language that she use.
 Evidence for the prosecution was given by Constables Hoshek, Pennington and Roberts, and for the Defence by the Defendant himself and his companion Mr Wanoa.
 There is conflict in the evidence over a number of factual issues touching upon whether there were proper grounds for a search,
Was there a smell of cannabis ?
 The three Police Officers all say there was a strong smell of cannabis emanating from the Defendant. It is clear that this was not coming from the tin that was found as such, since Constable Roberts acknowledged that the tin itself did not smell strongly, and its contents were a mere 0.7 gram of cannabis. There was no indication that the Defendant had recently been smoking cannabis. His eyes were not red, his demeanour was normal, he was not seen to have been smoking and no discarded butts were seen or looked for by the Officers in the vicinity. The Defendant himself at the time challenged the Officer’s contention that they were only saying so to find a justification for the search. This assertion seems to have irritated Constable Hoshek.
 The Defendant in evidence said that he did not smell of cannabis and had no been smoking recently. With respect, it appears to me that if as a habitual user he or his clothes did have a smell of cannabis, then it may not necessarily be a matter of which he was himself aware. Mr. Wanoa, however, was able to confirm that the Defendant had not smoked cannabis in his presence that evening and he said that he could detect no smell of cannabis coming from the Defendant. Constable Pennington acknowledged Mr. Wanoa did not himself smell of cannabis, as was eveident to the Officer once he separated Mr. Wanoa from the Defendant.
If there was a smell of cannabis, was that the reason for the search or only a pretext ?
 There is a dispute about what was said to the Defendant and Mr. Wanoa when the Officers approached him. The Defendant says that Constable Pennington’s first word’s were
have you anything in your pockets that you shouldn’t have ?
– to which the Defendant replied
– to which the Constable said
Well you won’t mind if I search you then
The Defendant said that he responded that he did object to being searched to which the Constable said
Why – do you have something to hide ?
The Defendant said he protested that he and his friend were simply having a conversation and should not be subjected to this sort of thing, following which the Officer declared that he could smell cannabis and the female Police Officer promptly said that she could smell it too. The Defendant said he then objected that there was no such smell and that the Officers were just saying that and was told by Constable Hoshek not to tell her how to do her job.
 Mr. Wanoa’s evidence was to similar effect.
 Constable Hoshek said she approached Mr. Fowlie and asked him what he was doing. She said she did not recall Constable Pennington asking him whether he had anything he should not have or whether he had anything to hide, but she did recall the Defendant objected to being searched and protested that she could not smell cannabis. Constable Pennington said that it was he who spoke to Mr Fowlie first. In cross-examination he accepted that he may have asked him whether he had anything in his pockets that he should not have. He said that it was Constable Hoshek who first stated that she could smell cannabis and he supported her in that.
 If the Defendant’s version of this encounter is accepted then it would appears that Constable Pennington’s remarks indicate an intention on his part to search the Defendant before any issue was raised as to there being a smell of cannabis, and that that issue was only raised by the Officers when the Defendant declined to voluntarily submit to a search
Was the Bill of Rights advice given ?
 Given that the Officers did have reasonable grounds to conduct the search without warrant under s 18(3) of the Misuse of Drug Act, then before such a search could lawfully be proceeded with, the Officer concerned would need to inform the person to be searched:
As to the reasonable grounds relied upon for conducting the search and As to specific statutory power under which she intended to carry out the search ( in this case s 18(3) of the Misuse of Drugs Act ) and Advise the person concerned as to his rights to silence and tp legal advice pursuant to the New Zealand Bill of Rights Act and Ascertain that the person concerned understood those rights.
 There is a dispute on the evidence as to whether all of those things were in fact done before the search was undertaken.
 Constable Hoshek said that she told the Defendant she believed he was in possession of cannabis, that she invoked s 18(3) of the Misuse of Drugs Act and gave him advice in terms of the Bill of Rights Act. She said she did not conduct the search herself but asked Constable Roberts to do so. In her evidence in chief she did not mention having ascertained that the Defendant understood his rights before proceeding, but in all the circumstances there can be no doubt as a matter of fact that he did.
 In cross-examination Constable Hoshek was unable to attest to a specific recollection of having given the Defendant his rights but was confident that she had done so as a matter of routine.
 Constable Pennington said that a s 18(3) of the Misuse of Drugs Act was invoked by Constable Hoshek. His evidence did not extend to his having heard the Constable giving the Bill of Rights advice.
 Constable Roberts said that he was asked to search the Defendant by Constable Hoshek who said to him
I have moded this guy for searching.
By which he understood that she had given the Defendant the necessary notification and warning. He did not himself hear what Constable Hoshek had said to the Defendant in this regard.
 The Defendant said that Constable Pennington said to him
I can smell cannabis.
He said that Constable Hoshek said she could smell it too and she then removed some items from his pockets without giving any Bill of Rights advice or caution. He said that he was given Bill of Rights advice by Constable Hoshek after the tin had been located and he was placed under arrest. He was then taken for the further search by Constable Roberts to which I have referred. Following that he was again given his Bill of Rights when placed into Police custody.
 If the Defendant is to be convicted on this charge then conflicts of evidence on all these issues will need to be resolved beyond reasonable doubt by findings of credibility in favour of the Police and adversely to the Defendant and Mr. Wanoa.
 A factor bearing upon the matter of credibility is the unsatisfactory state of the Prosecution evidence so far as the requirements of s 18(3) of the Misuse of Drugs Act is concerned. That section provides-
Where any member of the Police exercise the power of entry and search conferred by subsection 2 of this section or the power conferred by subsection 3 of this section, he shall within 3 days after the day on which he execises the power furnish to the Commissioner of Police a written report on the exercise of the power and the circumstances in which it came to be exercised.
 Constable Hoshek and Constable Pennington both said in evidence that they had completed the required reports in respect to their searches of the Defendant and Mr. Wanoa, but neither was able to produce a copy of such a report either in the course of making pre-trial disclosure to Defence Counsel, or at the hearing before me. The particulars recorded in such reports may well have been of some assistance in a case such as this.
 In my assessment all of the Officers who gave evidence appeared to be honest and reliable witnesses. I am bound to say, however, that I gained no less an impression of candour and reliability from the Defendant and Mr. Wanoa. There is no obvious reason to prefer the evidence of one side as against the other and, of course, the Prosecution bears the onus of proof. On the state of evidence before me my mind is not persuaded beyond reasonable doubt that the Officers were minded to search solely by reason of detecting a smell of cannabis emanating from the Defendant. Nor am I satisfied that it has been proven beyond reasonable doubt that proper advice pursuant to the Bill of Rights Act was given to the Defendant before the search was undertaken.
 In those circumstances, the search has not shown to be lawful and the evidence derived from should not be admitted. On the facts therefore I do not find the charge to be proved.
 Having regard to the issues that have been raised in this case and the undisputed facts, it is not altogether satisfactory that the case should be seen as being determined solely on the facts in that way, without raising the wider issues of reasonableness raised by Mr Winter for the Defendant.
 While a search may be legal in the sense that all of the statutory prerequisites to a lawful search laid down in s 18(3) of the Misuse of Drugs Act and in the New Zealand Bill of Rights Act may have been complied with, it may still be in the circumstances unreasonable for the search to have been conducted at all, or at the time and/or manner in which it has been conducted, and therefore in that way if the search is unreasonable then it is contrary to the Bill of Rights Act and accordingly, and for that reason, may be seen as illegal and the evidence garnered thereby inadmissible.
 The cases cited by Mr Winter such as R v Lagalis (1993) 10CRNZ 350, and R v Pratt (1994) 11CRNZ 392 identify two categories of such unreasonableness, namely cases where in the circumstance it is unreasonable to search within a warrant pursuant to s 18 where, for example, there is no need to do so, and cases where the manner of execution of the search is in itself unreasonable, having regard to the issues at stake.
 As was observed by the Court of Appeal in R v Anderson 4HRNZ 165 at page 169 –
Any search is a significant invasion of individual freedom, as this Court remarked in Grayson v Taylor ( P407 p260) when the reasonableness of the search is to be judged by the circumstances existing when it is made, one important factor being the state of knowledge and intention of the Police Officer who makes the search, or whether more than one Officer is involved, that of the Officer in charge. The lawfulness or otherwise of the search obviously is also an important matter though it is not the touchstone of reasonableness.
 R v Tuki, an unreported case referred to in Adams on Criminal Law ( CH 10.8.10) is an example of a case where an intrusive personal search conducted in a public place in relation to a simple charge of possession of cannabis was held to be unreasonable given that there was no reason to suspect the offence of possession of cannabis for supply and the likely penalty for mere possession was a small to moderate fine. In those circumstance the magnitude of the invasion of the suspect’s privacy outweighed the need for such an intrusive search and the strip component was held unreasonable on the basis that there were no grounds for embarking upon it.
 Similarly in Pratt a strip search in a public place was held unreasonable as being unnecessary in a case involving drug offending at the upper end of the scale of seriousness.
 There are elements of that sort of unreasonableness in this case. Although the Defendant was taken into a side street, he was still in a public place and was subjected to a demeaning personal search. There can have been no reason to suspect him of any serious offending. That aspect of the search in my view, was unreasonable.
 More fundamentally, however, it seems to me that Mr. Fowlie’s stated objection made to the constables at the time to the effect that he and his friend were simply having a conversion in the street and should not been subjected to this sort of attention was an objection well made.
 In a recent decision in R v Thomas ( CA301/01) delivered on 10 December 2001, the Court of Appeal made it plain that the fact that a Police Officer may detect the smell of cannabis consequent upon having illegally stopped a vehicle will not justifying embarking upon a search of a vehicle without warrant under s 18(3) of the Misuse of Drugs Act. If the original detention had been unlawful then the whole process that follows is tainted with that illegality. That reasoning must apply a fortiori to a body search
 In the case before me, there was no evidence to indicate to the Police that the Defendant and his companion were doing or contemplating anything illegal. The Police did not seek to speak to them in order to get information relevant to any other events or investigation that they were conducting. There was no reason at all to approach these two mena and require them to give some account of themselves. In my judgement it was unreasonable to do so.
 The circumstances overall leave an uncomfortable perception that the conduct of what Constable Hoshek described as a “sweep” by a Team Policing Unit may involve Officers engineering opportunities to conduct personal searches of persons minding their own business in a public street at random or on a purely speculative basis. It needs hardly been said that such conduct would manifestly contravene the New Zealand Bill of Rights Act.
 I conclude therefore that even had the evidence been such as to prove beyond reasonable doubt all the requisite formalities, in my judgement the search conducted of Mr. Fowlie was unreasonable and the evidence obtained thereby should be regarded as inadmissible. The charge is dismissed.
( J P Gittos )
District Court Judge