HOLLAND v NEW ZEALAND POLICE [2017] NZHC 2284

HOLLAND v NEW ZEALAND POLICE [2017] NZHC 2284 [21 September 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECRI-2017-485-34[2017] NZHC 2284COURTNEY HOLLANDvNEW ZEALAND POLICEHearing: 5 September 2017Appearances: K Preston for AppellantR De Silva for RespondentJudgment: 21 September 2017JUDGMENT OF CLARK JIntroduction[1] Ms Holland was convicted and sentenced after pleading guilty to one chargeof offering to supply methamphetamine.1 The evidence of offering to supply wasobtained following a warrantless search of Ms Holland's vehicle, her person and hercellphone under s 20 of the Search and Surveillance Act 2012 (the Act). Ms Hollandnow appeals the pre-trial ruling in which Judge Butler determined the evidenceobtained from the warrantless search was admissible.21 Misuse of Drugs Act 1975, s 6(1)(c): maximum penalty life imprisonment.2 Police v Holland DC Wellington CRI-2016-085-002491, 5 July 2017.Background facts[2] On 5 September 2016 three police officers, Detective Sergeant Gibson,Detective Sergeant Wescott and Constable Defersha, observed Ms Holland driving inNewtown with an associate who was in the front passenger seat. One of the officersknew Ms Holland was on a reinstated driver's licence. The police officers followedthe car, lost sight of it briefly in the traffic and found it parked in a side street.Ms Holland had moved to the passenger seat. The associate, who was standing nearby,said he had been driving the car. Detective Sergeant Gibson conducted a consensualsearch of the associate's backpack. In the backpack was a butane pen burner of a kindcommonly used for smoking methamphetamine.[3] Following this discovery and because, from information held in the NationalIntelligence Application database, Detective Sergeant Gibson knew Ms Holland andher associate had been involved with methamphetamine in the past, he formed theview there was methamphetamine and items used for smoking methamphetamine inthe vehicle, on Ms Holland and on her associate. He immediately invoked s 20 of theSearch and Surveillance Act and conducted a warrantless search of the car. At aroundthis time Ms Holland told Constable Defersha her handbag inside the vehiclecontained a "couple of tinnies" and a methamphetamine pipe.[4] The search of the vehicle located a methamphetamine pipe and a small quantityof cannabis within Ms Holland's handbag. That gave rise to two charges: possessionof cannabis;3 and possession of a methamphetamine pipe.4[5] The search also produced a cellphone which was seized as evidence. Theofficers returned to the police station some 20–40 minutes after Ms Holland and herassociate had been arrested. As a result of a strip search following Ms Holland's arresta "point bag" containing .25g of methamphetamine was discovered. This gave rise toa charge of possession of methamphetamine for supply.53 Misuse of Drugs Act, s 7(1)(a): maximum penalty three months' imprisonment and/or a $500 fine.4 Section 13(1)(a): maximum penalty one years' imprisonment or a $500 fine.5 Section 6(1)(f): maximum penalty life imprisonment.[6] The cellphone was passed to Detective Sergeant Gibson on their return to thepolice station. Because he was conscious of the risks that the cellphone's contentscould be deleted remotely Detective Sergeant Gibson opened the cellphone andaccessed the Facebook Messenger application (app). Messages on the app showed MsHolland had offered to supply "white cuties", a common term for methamphetamine.The messages gave rise to a fourth charge: offering to supply methamphetamine.6[7] Ms Holland initially pleaded guilty to all charges except the charge of offeringto supply because she challenged the admissibility of the Facebook messages.[8] A pre-trial application to determine the admissibility point was heard on 4 May2017. At the pre-trial hearing Detective Sergeant Gibson gave evidence that his powerto search the phone was incidental to the s 20 warrantless search he had executed.Judge Butler reserved his decision and directed counsel to file written submissions.Ms Holland was remanded to 15 June 2017 for the Judge's decision.[9] On 15 June 2017 Judge Butler ruled that the evidence obtained from thewarrantless search was admissible. Reasons were to follow. Ms Holland vacated hernot guilty plea and pleaded guilty. Judge Butler then sentenced Ms Holland in respectof all four charges.[10] On 5 July 2017 Judge Butler issued his reasons for the pre-trial ruling. TheJudge concluded the police had grounds to execute the warrantless search under s 20of the Search and Surveillance Act and the examination of the cellphone and itscontents was therefore authorised by s 110(h) of the Act.7 Ms Holland appeals thatruling.The pre-trial ruling[11] Overall Judge Butler considered it was unnecessary for the Detective Sergeantto obtain a separate search warrant for the cellphone. Providing the initial s 20warrantless search was lawful the police examination of the cellphone and its contents6 Misuse of Drugs Act, s 6(1)(c): maximum penalty life imprisonment.7 Police v Holland, above n 2, at [12]–[13].was authorised by s 110(h) of the Act. The crucial question therefore was whether thepolice had grounds to execute a warrantless search.8[12] The Judge concluded the requisite grounds under s 20 of the Act had been met.Detective Sergeant Gibson had reasonable grounds:(a) to believe it was not practicable to obtain a warrant and that there werecontrolled drugs in the vehicle;9 and(b) to suspect an offence in respect of the controlled drug had been, wasbeing, or was about to be committed in the vehicle;10 and(c) to believe the evidential material relating to the suspected offencewould be destroyed if the search was not carried out immediately.11[13] Judge Butler was convinced a butane burner has a niche role inmethamphetamine consumption. The presence of the butane burner coupled withDetective Sergeant Gibson's knowledge of Ms Holland's and her associate's drughistory meant the reasonable grounds threshold in s 20 had been met. The Judgeregarded the discovery of the butane torch as comparable to Holdem v R.12 There thepolice executed a warrantless search immediately following discovery of a set ofdigital scales. The Court of Appeal held that once the scales were discovered in thebackpack and the police officer formed the view the backpack may have related todrug use the officer was entitled to complete the search of the contents without awarrant under s 20 of the Search and Surveillance Act:13In the absence of any cross-examination, we accept he then had reasonablegrounds for believing that it would not have been practicable to obtain awarrant, there was a controlled drug in the vehicle or an offence against theMisuse of Drugs Act had been committed in respect of [a] controlled drug,and, if the search had not been carried out immediately, relevant evidentialmaterial might have been destroyed, concealed, or damaged.8 At [13].9 Search and Surveillance Act 2012, s 20(a).10 Section 20(b).11 Section 20(c).12 Holdem v R [2014] NZCA 546.13 At [24].[14] Turning to the requirement in s 20 that the police officer must have reasonablegrounds to believe it is not practicable to obtain a warrant, the Judge said a relatedconsideration is that the officer might have reasonable grounds to believe evidentialmaterial will be compromised if the search is not undertaken immediately. The policeofficers had seen that Ms Holland swapped seats, "arguably in an attempt to misdirectthem", and the Judge considered the officers would have been especially conscious ofattempts to side-track their inquiries. Regarding it as necessary to consider thepracticalities of policing the Judge concluded the impracticability of obtaining awarrant was linked to police concerns around safeguarding evidence.14[15] The Judge rejected the defence submission that a further warrant was neededfor the messages to be taken as evidence. Citing R v Paraha, the Judge determinedthat where a cellphone has been seized as evidence pursuant to a lawful search nofurther warrant is necessary to examine its contents.15 Section 110(h) of the Actauthorised the search of the contents of the phone.The appeal[16] An appeal against conviction is as of right.16 Ms Holland, however, appealsher conviction following entry of a guilty plea. No submissions were addressed to meon this point.[17] Section 232(4) of the Criminal Procedure Act 2011 expressly contemplatesappeals following guilty pleas although only in exceptional circumstances will anappeal against conviction be entertained following a guilty plea.17 Such an appeal maybe permitted if the appellant can show a miscarriage of justice is indicated.[18] A miscarriage of justice may arise where it can be shown a plea was inducedby a ruling which embodied a wrong decision on a question of law.18 As nosubmissions have addressed this legal point I do not know the reasons why, followingJudge Butler's admissibility ruling, Ms Holland vacated her not guilty plea and entered14 Police v Holland, above n 2 at [22].15 R v Paraha [2015] NZDC 18928.16 Criminal Procedure Act 2011, s 229.17 R v Le Page [2005] 2 NZLR 845 (CA) at [16].18 At [19].a plea of guilty. I have been prepared to proceed on the basis the guilty plea may nothave been entered if, at the time it was entered, Ms Holland and her counsel had thebenefit of the District Court Judge's reasons for his ruling. In other words I haveproceeded on the basis there is a sufficient nexus between the delivery of the Judge'sreasons and the effective change of plea represented by the filing of the appeal justover a fortnight later.19 This is a generous construction of the principle to Ms Holland'sbenefit.[19] Turning to the substance of the challenge, Ms Holland appeals on the groundsthe Judge erred in:(a) finding the police had reasonable grounds to believe it was notpracticable to obtain a warrant before invoking the search power unders 20 of the Act;(b) finding s 110(h) of the Act applied to the search of Ms Holland'scellphone; and(c) finding the extensive search of Ms Holland's cellphone was reasonableand lawful in any event.The statutory search powers[20] The relevant search powers are ss 20 and 110 of the Search and SurveillanceAct:20 Warrantless search of places and vehicles in relation to someMisuse of Drugs Act 1975 offencesA constable may enter and search a place or vehicle without a warrantif he or she has reasonable grounds—(a) to believe that it is not practicable to obtain a warrant and thatin or on the place or vehicle there is—(i) a controlled drug specified or described in Schedule 1of the Misuse of Drugs Act 1975; or19 At [24], by analogy.(ii) a controlled drug specified or described in Part 1 ofSchedule 2 of the Misuse of Drugs Act 1975; or(iii) a controlled drug specified or described in Part 1 ofSchedule 3 of the Misuse of Drugs Act 1975; or(iv) a precursor substance specified or described in Part 3of Schedule 4 of the Misuse of Drugs Act 1975; and(b) to suspect that in or on the place or vehicle an offence againstthe Misuse of Drugs Act 1975 has been committed, or is beingcommitted, or is about to be committed, in respect of thatcontrolled drug or precursor substance; and(c) to believe that, if the entry and search is not carried outimmediately, evidential material relating to the suspectedoffence will be destroyed, concealed, altered, or damaged.110 Search powersEvery search power authorises the person exercising it—(h) to use any reasonable measures to access a computer systemor other data storage device located (in whole or in part) at theplace, vehicle, or other thing if any intangible material that isthe subject of the search may be in that computer system orother device:Practicability of obtaining a warrantSubmissions[21] The appellant does not dispute the existence of reasonable grounds forbelieving in the likely presence of drugs. Rather, Mr Preston's point concerned thesequence in which the Judge addressed the relevant questions. Mr Preston submittedthe Judge should have turned his mind first to the practicability of obtaining a warrant.Mr Preston submitted that although the issues are interlinked, dealing with thereasonableness of belief in the presence of drugs in the car before considering the issueof the practicability of obtaining a warrant, led the Judge into error because "little orno consideration was afforded to the practicability of obtaining a warrant".[22] Mr Preston submitted the officer's decision to undertake the warrantless searchwas premature given Ms Holland's statement that her bag, inside the car, containeddrugs and a methamphetamine pipe. That revelation undercut any suggestion sheintended to destroy or conceal evidence.[23] Mr Preston also submitted the Judge failed to consider defence submissionsrelating to other powers available under the Act, in particular, the ability to apply forsearch warrants by telephone.[24] For the respondent Ms De Silva submitted the Judge specifically addressed thepracticability issue and made a reasoned decision on the point. It was open to theJudge to conclude there was a real risk the evidence would be interfered with ordestroyed if a warrant had been sought.Assessment[25] I see little merit in the argument that the Judge erred by failing to address asthe first issue the practicability of obtaining a warrant. The question whether it ispracticable to obtain a warrant, does not sensibly arise unless the need to search isestablished.[26] The reality is that police officers are unlikely to turn their minds to thepracticability of obtaining a warrant under s 20 if they have not first formed a viewthat there are grounds for a search and that it should be carried out immediately. Untilthat view is formed the question whether it is practicable to obtain a warrant is largelytheoretical. I am unable to agree that the order in which the Judge analysed the issuesled him into error.[27] I turn to the substance of the Judge's analysis. It is well settled that a policeofficer is not bound to obtain a warrant every time he or she has sufficient informationto justify the issue of a warrant. The improper constraints of such an approach onpolice investigation work have been long recognised.20 When deciding whethergrounds exist for a warrantless search the courts must have regard to all thecircumstances of the case "and in particular, to the practicalities of policing".21 Since20 For example R v Smith (1996) 13 CRNZ 481 (CA) at 485; R v Williams [2007] NZCA 52, [2007]3 NZLR 207 at [24].21 Hughes v R [2011] NZCA 661 at [25].(at least) the Court of Appeal's decision in R v Hughes the "practicalities of policing"is not a mere factor in the mix of relevant circumstances but a factor in respect ofwhich judges are "exhorted" to have regard.22[28] Mr Preston made the point that R v Williams and R v Hughes pre-date theSearch and Surveillance Act and have limited relevance because that Act conferredadditional powers designed to address the very issues with which the Court of Appealdecisions were concerned.[29] I do not regard the Search and Surveillance Act as having the effect whichMr Preston suggests. The Act did not diminish, in any respect, the relevance of theprinciple that the practicalities of policing may very well impact on the justificationfor a warrantless search. Judges must continue to have regard to the practicalities ofpolicing when considering whether or not a constable has reasonable grounds tobelieve it is not practicable to obtain a warrant. Since that enactment numerous Courtof Appeal decisions have recognised the practicalities of policing and the regard whichjudges must have for this consideration when assessing the basis for invoking thewarrantless search power.23[30] Nevertheless, while regard must be had to this aspect of police work anevidential basis is required for an assertion that the practicalities of policing made itimpracticable to obtain a warrant or contributed to the impracticability of obtaining awarrant.24[31] In this case, at the point when Detective Sergeant Gibson invoked thewarrantless search power, Ms Holland was not under arrest. Detective SergeantGibson was unaware of the information Ms Holland had volunteered to ConstableDefersha — that there was a methamphetamine pipe and a couple of "tinnies" in herhandbag which was in the car. Detective Sergeant Gibson's central concern was that,as he had no grounds to detain Ms Holland, she was free to leave and therefore free todestroy evidence relating to the suspected offending.22 At [33].23 For example: Alberton v R [2014] NZCA 317 at [13]; Swain v R [2014] NZCA 194 at [17];McGarrett v R [2017] NZCA 204 at [24].24 McGarrett v R, above n 23, at [25].[32] The power to conduct a warrantless search is available when there is a riskevidential material may be disposed of or removed. The warrantless power is notconfined to emergencies. Nor do the police have to go so far as to show the drugswhich might be located in a search would probably be lost if time were taken to obtaina warrant.25[33] Judge Butler accepted Detective Sergeant Gibson's evidence that he invokedthe warrantless search power before Ms Holland volunteered having cannabis and amethamphetamine pipe in her handbag. At the time the search commenced, therefore,there was no apparent basis for arresting Ms Holland. As a result, there was no lawfulmeans by which she could be detained. She and her associate were free to go and inthe vehicle. The Judge was correct to conclude that "[i]n those circumstances, theneed for an immediate search, to safeguard evidence, was reasonable".26[34] This ground of appeal does not succeed.Lawfulness of search of cellphone[35] Early in his reasoning Judge Butler took the view that it was unnecessary forthe officer to obtain a separate search warrant in regard to the cellphone providing thewarrantless search was lawful. If the warrantless search was lawful the search of thecellphone was authorised by s 110(h).27[36] Ms Holland's position on appeal is that s 110(h) did not apply to the warrantlesssearch as s 110(h) only permits a search at the scene whereas her cellphone wassearched at the station. Mr Preston submitted that s 125 was the appropriate sectionby which to assess whether the cellphone could be searched. Section 125 provides:125 Special rules about searching persons(1) If a person exercises a power to search a person, the personexercising the power—25 Hughes v R, above n 21, at [25].26 Police v Holland, above n 2, at [22].27 At [12].(l) may use any reasonable measures to access a computersystem or other data storage device, that the person beingsearched is carrying or that is in the person's physicalpossession or immediate control, if any intangible materialthat is the subject of the search may be in that computersystem or other device;[37] Mr Preston's primary points were that:(a) In the District Court the Police placed reliance on s 125 as theapplicable provision authorising the search of the cellphone. Thissubmission was made by the Police in the course of the District Courthearing. Consequently the point was not addressed in defencecounsel's written submissions.(b) The Judge erred in his view of s 110(h) being relevant and failed, as aconsequence, to consider the lawfulness of the search by reference tos 125.(c) As the cellphone could not be searched incidentally to the warrantlesssearch, a warrant for the further investigation of the cellphone shouldhave been obtained.[38] Ms De Silva submitted the Judge was correct in applying s 110 of the Act ratherthan s 125 as s 125 applies to the search of a person. A plain reading of s 110 does notrequire the search of the phone to be carried out in the vehicle from which it wasseized.Assessment[39] This ground of appeal proceeds on a misconception of s 110(h). Theauthorisations in s 110 are incidental to a search power. A search power under the Actmeans every search warrant and "every power to enter and search, or enter andinspect or examine (without warrant) any place, vehicle, or other thing or to search aperson."2828 Search and Surveillance Act, s 3 definition of "search power".[40] Section 110(h) authorises the person exercising a search power:to use any reasonable measures to access a computer system or other datastorage device located (in whole or in part) at the place, vehicle, or other thingif any intangible material that is the subject of the search may be in thatcomputer system or other device:[41] The words "located (in whole or in part) at the place" plainly relate to thelocation of the device not the place at which the device is to be searched. Where adevice has been located at the place, vehicle or other thing searched, then reasonablemeasures may be used to access the device. Section 110(h) does not expressly orimpliedly require the accessing of a computer system or other storage device to takeplace in the vehicle or other place where the device was located. One only has toconsider the ramifications of such an argument to appreciate it is untenable.[42] Section 125 is inapplicable to the search of the vehicle. Section 125 isconfined to powers to search a person. The Judge adopted the correct approach inassessing the lawfulness of the examination of the cellphone by reference to ss 20 and110(h).[43] This ground of appeal does not succeed.Reasonableness of the searchSubmissions[44] This ground of appeal challenges the reasonableness of the extent of the searchof Ms Holland's cellphone. Mr Preston submitted the grounds advanced by theconstable for his examination of the phone were insufficient and the search amountedto little more than a "fishing expedition". Specifically, "the constable's contention thathe was looking for evidence of the appellant's intention with regard to the items cannothave been founded on a reasonable belief of drug dealing".[45] Ms De Silva submitted on the evidence there was a proper basis for the searchand a pressing need to do so.Analysis[46] What is unlawful is not necessarily unreasonable. So too, that which is lawfulis not necessarily reasonable.29 The starting point is the right declared by s 21New Zealand Bill of Rights Act 1990 to be secure against unreasonable search orseizure whether of the person or property. Any search is an intrusion on freedom orprivacy but searches of computers and phones raise special privacy concerns becauseof the nature and extent of information that they hold, which searchers must examine,if a search is to be effective.30 The potential for invasion of privacy is high because ofthe personal nature of the information likely to be stored on a cellphone: "[t]hese areinterests of a kind that s 21 of the Bill of Rights Act was intended to protect fromunreasonable intrusion."31[47] It was put to Detective Sergeant Gibson in cross-examination that his searchof Ms Holland's phone was speculative. Detective Sergeant Gibson strongly resistedthe proposition. His evidence was that he believed Ms Holland might be dealingbecause, in his experience, those who use methamphetamine commonly sell the drugto support their habit or use. His search was "to find the intention behind thepossession". He believed his authority to search the phone derived from the s 20search and the fact Ms Holland had been found in possession of a small quantity ofmethamphetamine. The Detective Sergeant was clear in his evidence that finding asmall quantity of drugs would not entitle him to search through the phone "to look atwhatever information" it contained but only evidence relating to "that drug" locatedon Ms Holland. Importantly, to my mind, Detective Sergeant Gibson did not check oropen any other app on Ms Holland's cellphone. That must mean he did not lookthrough contact details or other such personal information. He did check the textmessages. That was consistent with checking the messages on the Facebook app.[48] I consider the Detective Sergeant's focus on communications with third partiesdid not render his search over-broad and therefore unreasonable.29 R v Laugalis (1993) 10 CRNZ 350 (CA) at 355.30 Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [190]–[191].31 At [191].[49] Detective Sergeant Gibson knew of Ms Holland's past association withmethamphetamine; she was in possession of the drug and a methamphetamine pipeand she was with an associate who had a methamphetamine pipe. In DetectiveSergeant Gibson's experience it was likely that Ms Holland was engaged in selling orsupplying methamphetamine. As the Court of Appeal reasoned in Neho v R the dataon the cellphone could reasonably be anticipated as providing potential evidence ofoffending.32[50] In Hoete v R, the Court of Appeal accepted a cellphone might well containevidence relevant to serious drug charges, it being "well-known that [a wallet, tickbook, notebook or cellphone] may contain notes of methamphetamine sales and, in thecase of a cellphone, incriminating text messages or records of incriminating phonecalls such items may be regarded as 'tools of the trade' for drug dealers".33[51] The search of Ms Holland's cellphone was lawful and the extent of the searchwas not unreasonable. The evidence of communications in Ms Holland's FacebookMessenger app which gave rise to the charge of offering to supply methamphetaminewas not improperly obtained. The Judge was correct to rule the evidence wasadmissible.[52] In light of my conclusions on each of the grounds of appeal it is not necessaryto address admissibility under s 30 of the Evidence Act 2006.Result[53] For the foregoing reasons the appeal is dismissed._____________________________Karen Clark JSolicitors:Public Defence Service, Wellington for AppellantCrown Solicitor, Wellington for Respondent32 R v Neho [2017] NZCA 324 at [17].33 Hoete v R [2013] NZCA 432, (2013) 26 CRNZ 429 at [20].