ALAMOTI v R [2016] NZCA 402

ALAMOTI v R [2016] NZCA 402 [10 August 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA148/2016[2016] NZCA 402BETWEEN SIONE MAKONI ALAMOTIAppellantAND THE QUEENRespondentHearing: 21 June 2016Court: Cooper, Lang and Peters JJCounsel: G R Anson for AppellantA J Ewing for RespondentJudgment: 10 August 2016 at 12.30 pmReasons: 19 August 2016JUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in new media or on the internet or otherpublicly available database until final disposition of trial. Publication inlaw report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)Table of ContentsPara NoBackground [3]Search of Mr Alamoti [10]Section 85 [16]Discussion [20]Search of the vehicle [24]Section 20 [28]Section 20(a) — practicability of obtaining a warrant [33]Section 20(a) — controlled drug or precursor [39]Section 20(c) — risk to evidential material [45]Discussion [50]Section 30 of the Evidence Act [52]Search of the motel rooms [58]Section 15 [63]Discussion [65]Section 30 of the Evidence Act [69]Conclusion [72][1] Mr Alamoti, with others, faces various charges principally relating topossession of methamphetamine. He seeks leave to appeal against a decision of Judgede Ridder in the Kaikohe District Court in which the Judge determined that evidenceseized as a result of four searches was admissible.1 The first search was of Mr Alamoti,the second was of a vehicle in which Mr Alamoti had been a passenger and the thirdwas of two rooms at a motel in Paihia ("motel"). The fourth was of a storage unit inAuckland, to which there is no challenge on appeal.[2] The appeal, if successful, would dispose of several of the charges againstMr Alamoti and we grant leave accordingly.Background[3] The searches in dispute occurred on 9 May 2014. At about 12.30 pm that day,Constables Gallaghan and Cox were manning a checkpoint in the Kaikohe area.1 R v Alamoti [2016] NZDC 731.Constable Gallaghan stopped a vehicle driven by Mr Wiles in which Mr Alamoti wasa passenger. The Constable asked to see Mr Wiles' driver's licence, following whichMr Wiles drove away at speed. It later transpired that Mr Wiles was disqualified fromholding a driver's licence.[4] The Constables pursued Mr Wiles, and other officers, being Detective Grahamand Senior Constable Black, were notified. They laid road spikes, which had the effectof bringing the vehicle to a halt approximately 25 kilometres from Kaikohe. This wasat about 1 pm and it was a Friday afternoon.[5] Constable Black was first on the scene, followed by Constables Gallaghan andCox and Detective Graham.[6] In the course of the next 30 minutes or so, Mr Wiles, Mr Alamoti and the otherpassengers, being a Ms Gilfedder and Mr Williams, were arrested for differentoffences and taken to the Kaikohe Police Station where they were processed. Whilstat the roadside, however, Detective Graham carried out the search of Mr Alamoti thatis in dispute and commenced the search of the vehicle that is in dispute. The vehiclewas impounded and towed back to Kaikohe where the search of it was completed laterthat afternoon. In the early evening a Detective Sergeant Bindon searched the motelrooms.[7] The Judge held that each search was lawful. As regards the vehicle, the Judgealso determined that, if he were wrong as to the lawfulness of the search, the evidenceobtained during that search should not be excluded under s 30 of the Evidence Act2006.2[8] On appeal, counsel for Mr Alamoti submits that the Judge erred in each of thesedeterminations.[9] We turn now to consider the issues that arise.2 At [92]–[94].Search of Mr Alamoti[10] On arrival at the scene, Constables Black, Gallaghan and Cox got the occupantsout of the vehicle. On enquiry, Constable Cox learned that there was an outstandingwarrant or warrants for Mr Alamoti's arrest and he arrested Mr Alamoti and began tosearch him.[11] Satisfied that the immediate situation was under control, Detective Grahamwent to retrieve the road spikes to which we have referred. Whilst in his car, DetectiveGraham heard on the police radio that the manager of the motel had reportedsuspicions about Mr Wiles as a result of events the previous night. The informationon the radio was to the effect that Mr Wiles had a bag containing a large amount ofcash from which he had paid for the rooms at the motel.[12] On returning to the scene, Detective Graham asked Constable Cox "where hewas at with things" as regards Mr Alamoti. Constable Cox informed DetectiveGraham that he had arrested Mr Alamoti. Detective Graham's evidence was that heasked Constable Cox whether he had searched Mr Alamoti, that Constable Cox replied"[n]ot properly", and "so [he] began a search of [Mr Alamoti's] pockets".[13] Detective Graham's evidence was that, amongst other things, Mr Alamoti hada key to a room at the motel in one pocket of his shorts and that, as Detective Grahamwent to search the other pocket, Mr Alamoti said "[t]hese aren't my shorts". Onsearching this other pocket, Detective Graham located a plastic resealable bagcontaining point bags, one of which contained remnants of a substance the Detectivethought might be methamphetamine. Detective Graham returned the items toMr Alamoti's pockets, these being retrieved on Mr Alamoti's arrival at the KaikohePolice Station.[14] The Judge held that Detective Graham's search of Mr Alamoti was authorisedby s 11 of the Search and Surveillance Act 2012 (the Act), on the basis that it was awarrantless search of a person who, amongst other things, was to be "locked up".33 At [84]–[85].[15] On appeal, however, it was common ground between counsel that Mr Alamotiwas not to be "locked up" within the meaning of s 11 and that the lawfulness ofDetective Graham's search of Mr Alamoti should be determined under s 85 of the Act.Section 85[16] Section 85 permits a rub-down search of a person following their arrest ordetention. The submission for Mr Alamoti is that the power to search under s 85(1) isvested only in the officer who has arrested the subject of the search or who has detainedthe subject pursuant to a statutory power of detention. Accordingly, counsel submitsthat Constable Cox alone, as the arresting officer, was authorised to carry out a rub-down search of Mr Alamoti and that the search by Detective Graham was unlawful.[17] Crown counsel's submission, which we accept, is that Detective Graham wasdetaining Mr Alamoti pursuant to a statutory power of detention and so was entitledto conduct a rub-down search of Mr Alamoti pursuant to s 85.[18] Section 85(1) provides:85 Rub-down search of arrested or detained person(1) A person to whom this subpart applies may carry out a rub-downsearch of a person, in accordance with this section, when the personis arrested, or detained under a statutory power of detention, in orderto ensure that the person is not carrying anything that may be used—(a) to harm any person; or(b) to facilitate the person's escape.[19] Section 82 of the Act provides:82 Application of this subpartThis subpart applies to any person who has exercised a power of arrestor detention, or both, by or under this Act or any other enactment,other than—(a) the Armed Forces Discipline Act 1971; or(b) the Defence Act 1990; or(c) any regulations made under either of those Acts.Discussion[20] In the present case, a warrant had been issued for Mr Alamoti's arrest, and anysuch warrant would have included a direction to a constable to bring Mr Alamotibefore the Court, that is to detain him for that purpose. Although Constable Cox mayhave made the arrest, Detective Graham was exercising a statutory power to detain MrAlamoti and thus had power under s 85 to conduct a rub-down search of him.[21] In addition, Crown counsel submitted that Detective Graham might also havebeen said to have been rendering assistance to Constable Cox in accordance withss 110(b) and 113(3) of the Act. These provisions are as follows:110 Search powersEvery search power authorises the person exercising it—(b) to request any person to assist with the entry and search(including, without limitation, a member of a hapū or an iwiif the place to be entered is of cultural or spiritual significanceto that hapū or iwi):113 Powers of persons called to assist(3) If a constable is assisting another person exercising the search power,that constable may, without any direction or supervision by the personhe or she is assisting, exercise any power ordinarily exercisable bythat constable.[22] Counsel for Mr Alamoti challenged this submission on the ground that therewas no request from Constable Cox within the meaning of s 110. We consider therequest implicit in the presence of all officers working together at the scene and theinterchange between Constable Cox and Detective Graham to which we have referred.As for the closing words of s 113(3), Detective Graham would ordinarily have powerto conduct a rub-down search under s 85. It follows that Detective Graham was alsoentitled to search Mr Alamoti by operation of ss 110(b) and 113(3).[23] For these reasons we consider Detective Graham's rub-down search ofMr Alamoti was lawful. If we are wrong in this, we would not exclude the evidenceunder s 30 of the Evidence Act. Mr Alamoti was subject to s 85 and it would bedisproportionate to exclude the evidence obtained simply because he was searched byDetective Graham as well as by Constable Cox.Search of the vehicle[24] Detective Graham's evidence was that, having searched Mr Alamoti, heinvoked s 20 of the Act and began a search of the vehicle. He then learned that thevehicle was to be impounded4 and "formed the intention to continue the search of thevehicle further once it was impounded".[25] The tow truck arrived at the scene at about 1.20 pm and took the vehicle to thecompany's yard. Detective Graham then returned to the Kaikohe Police Station andbriefed his superior, Detective Sergeant Fouhy. A Constable Glentworth completedthe search of the vehicle later that afternoon. He found a container holdingapproximately one gram of a white crystalline substance presumed to bemethamphetamine tucked in the rear seat of the vehicle and some MSM powder, whichis said to be commonly used to cut methamphetamine.[26] The Judge held that Detective Graham was entitled to search the vehiclepursuant to s 20 of the Act and that Constable Glentworth's later search was acontinuation of that same search.5[27] Counsel for Mr Alamoti submits that the Judge erred in finding that DetectiveGraham was entitled to search the vehicle as he did. Counsel does not, however,challenge the Judge's determination that Constable Glentworth's later search was acontinuation of Detective Graham's search. The lawfulness or otherwise of that searchthus depends on the lawfulness of Detective Graham's search.4 The impounding of the vehicle was mandatory given Mr Wiles' disqualification from driving: seeLand Transport Act 1998, s 96A(1)(a).5 Alamoti, above n 1, at [88]–[90].Section 20[28] Section 20 of the Act provides: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; or(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.[29] Counsel for Mr Alamoti submits that the Judge erred in finding that s 20(a) and(c) were satisfied. There is no dispute that s 20(b) was satisfied.[30] Each of s 20(a) and (c) requires that the constable "has reasonable grounds tobelieve". The following passage from the Adams on Criminal Law — Rights andPowers summarises what this entails, albeit in a slightly different context:6SS6.11 Reasonable grounds to believeFor this threshold to be met, the issuing officer must be satisfied that the stateof affairs alleged by the applicant actually exists in the sense that there mustbe an objective and credible basis for thinking a search will discover the itemsidentified in the warrant: R v Sanders [1994] 3 NZLR 450, (1994) 12 CRNZ6 Simon France (ed) Adams on Criminal Law — Rights and Powers (online looseleaf ed, ThomsonReuters) at [SS6.11].12 (CA); R v Williams [2007] NZCA 52, [2007] 3 NZLR 207, (2007) 23CRNZ 1 at [213]; Warner v R [2011] NZCA 258 at [21]. There must be morethan surmise or suspicion that something is inherently likely: R v Laugalis(1993) 10 CRNZ 350, 1 HRNZ 466 (CA); Hill v Attorney-General (1990) 6CRNZ 219 (CA); R v Sanders (above). The belief may be based on thecumulative effect of a number of factors: R v Yeh [2007] NZCA 580 at [37];Hoete v R [2013] NZCA 432, (2013) 26 CRNZ 429 at [10]. The officer mustpersonally have the requisite belief on reasonable grounds. However, he orshe need not have detailed knowledge of all of the factors upon which thatbelief is based; it will suffice that sufficient information has beencommunicated by another officer (eg the searching officer's superior) toenable the belief to be formed: Yeung v R [2010] NZCA 605 at [36]–[42] and[46]; Swain v R [2014] NZCA 194 at [13].[31] The points in the summary relevant to this appeal are that the constable mustpersonally have the requisite belief and must have reasonable grounds for that belief.7This is significant because counsel for Mr Alamoti submitted that there was nosufficient evidence that Detective Graham personally believed the matters referred toin s 20(a) and (c).[32] For the reasons given below, we accept that submission in respect of theDetective's belief, or lack thereof, as to the criteria in s 20(c) but not in relation tos 20(a).Section 20(a) — practicability of obtaining a warrant[33] The Judge's findings as to s 20(a), insofar as it concerns the Detective's beliefon reasonable grounds as to the practicability of obtaining a warrant, were as follows:8[89] The vehicle had been stopped at around about 1:00pm on a Fridayafternoon in a remote rural area. The vehicle had to be impounded becauseMr Wiles was a disqualified driver. Furthermore, the officers had to deal withthe four occupants, transport them to the Kaikohe Police Station and processthem. The nearest District Court at Kaikohe closed at 5pm. The combinationof those circumstances is such that Detective Graham did have reasonablegrounds to believe that it was not practicable to obtain a warrant. Thepracticalities of policing have to be taken in to consideration. I accept theassessment of Detective Graham that in their overall circumstances, he did nothave time or resources to prepare a search warrant application. The resourcesof the Police in a small rural town are not the same as those available in a largemetropolitan area, or even a provincial city.7 Yeung v R [2010] NZCA 605 at [42].8 Alamoti, above n 1.[34] Counsel for Mr Alamoti submitted that the Judge's finding on this point wasnot in fact supported by the Detective's evidence. On the contrary, counsel submittedthat the evidence revealed the Detective's failure to consider whether a warrant mightbe obtained or, alternatively, that any consideration he did give to the matter wascursory and fleeting.[35] Counsel referred us to various passages from the evidence including one inwhich the Detective described the decision to undertake a warrantless search of avehicle in such circumstances as "almost instantaneous" and a "no-brainer", and saidthat he could not think of a situation in which he would find "an almost empty pointbag ... and seek a warrant for a vehicle, in the middle of nowhere". Counsel submittedthat this evidence indicates that the Detective did not turn his mind to the practicabilityof obtaining a search warrant prior to entering and searching the vehicle.[36] Notwithstanding this evidence, we are not persuaded that the Judge erred in hisfactual finding given the Detective's response to the following questions:Q. So, are you able to answer that, what the reasonable grounds were thatyou had in mind to believe that it wasn't practicable to obtain awarrant?A. Okay, the vehicle is 25, 20 minutes out of town in, basically, themiddle of nowhere, in an area of forestry. It has three flat tyres, cannotbe driven from that location. By that stage, all of the occupants wereunder arrest, or shortly afterwards.Q. I put it to you that those are reasons why it would've been practicableto obtain a warrant, because what we're talking about it on the onehand, the occupants who might've had access to the vehicle are underarrest and secondly, you determine that the vehicle's going to beimpounded and therefore it's – they're deprived access to it anyway,because you've got a right to impound?A. No, but what, what I've explained is, I had no knowledge of the rightto impound the vehicle when I've invoked section 20. Do youunderstand that?[37] We add that both Detective Graham and Detective Fouhy gave evidence aboutthe impracticability of obtaining a warrant given the available resources and the factthat it was early on a Friday afternoon. Some of this evidence revealed a lack offamiliarity with the prerequisites to the exercise of the powers conferred by the Act,and a reluctance to give sufficient weight to the desirability of obtaining a warrant.[38] That said, a scene guard would have had to remain with the vehicle if a warrantwere to be sought. The constables present were engaged in transporting the fouroccupants of the vehicle to the police station and Constables Cox and Gallaghan werenot based at the Kaikohe Police Station. For us, the need to arrange a scene guard,and the impracticability of doing so in the circumstances, is the critical matter.Section 20(a) — controlled drug or precursor[39] The Judge's finding on the issue of whether Detective Graham believed, andhad reasonable grounds to believe, that a controlled drug or precursor of the natureidentified in s 20(a) would be present in the vehicle was as follows:9[88] In assessing whether or not Detective Graham had the requisitereasonable grounds it is necessary to take an overall assessment of thesituation faced by the officers. The defendant's vehicle had failed to stop anda lengthy pursuit followed. Mr Wiles had demonstrated a very clear intent toavoid being apprehended by the Police and the explanation he gave when hefinally stopped about being concerned as he was a disqualified driverjustifiably raised the officer's suspicions. The subsequent search ofMr Alamoti located the methamphetamine point bags. Immediately prior toDetective Graham searching the pocket where he found the bags, Mr Alamotimade the comment that they were not his shorts which was unusual. Thecombination of these factors clearly gave rise to reasonable grounds to believethat a specified controlled drug would be present in the vehicle and to suspectthat an offence against the Misuse of Drugs Act had been or was beingcommitted. It was not solely the finding of the bags that gave rise toreasonable grounds for the requisite belief, but the overall combination ofcircumstances.[40] Counsel for Mr Alamoti submitted that the Detective's evidence did notsupport the Judge's finding as it established no more than that the Detective believedit was possible that evidence of drug offending and/or utensils for the consumption ofmethamphetamine might be present in the vehicle.[41] The Detective's evidence on this point was as follows:Q. Right, so let's examine on what basis you invoked section 20?A. I had a belief that either further on his person or in the vehicle theremay be evidence of drugs offending....9 Alamoti, above n 1.Q. And what did the, what did that cause you to believe, in relation to thevehicle?A. That there may be, possibly, a utensil for the consumption of meth,such as meth pipe, needles, syringes, what not, which is obviously anoffence....Q. What was your thought process in terms of your invocation of section20 of the Search and Surveillance Act at the roadside and the fourgrounds containing there in?A. My thought process was based on the information that I had at thattime, A, we have a person, the defendant Wiles being the driver of thevehicle and illegally, and at times dangerous in pursuit. We haveestablished that the defendant Alamoti has had warrants to his, for hisarrest. I have the information from detective, from Sergeant Mastersabout the defendant Wiles being seen with a significant amount ofcash at the motel, only a day or so prior. He had no form of ID otherthan a Corrections card and I had significant suspicions after locatingthe point bag – point bags inside a point bag on the defendant Alamotithat there may be other evidence of drugs offending or cash inside thevehicle or on those persons in the vehicle.[42] We consider it is a fair inference from the evidence that the Detective believedthere would be methamphetamine in the vehicle and that was the "drugs offending" towhich he referred. All of the matters the Judge referred to in [88] of his judgmentwere known to the Detective and would have been in the Detective's mind when heentered and commenced searching the vehicle. The Detective's reference to "drugsoffending" rather than "methamphetamine" cannot be determinative given that muchof what was known to the Detective pointed towards possession of methamphetamine.[43] As we have said, counsel also submitted that the gist of the Detective'sevidence was that the presence of drugs in the vehicle was no more than a"possibility", and that he did not have the necessary "belief" that they were present inthe vehicle. We do not accept this submission. It is clear that Detective Grahambelieved he would find methamphetamine in the vehicle when he entered and searchedthe vehicle, again for all the reasons the Judge gave.[44] It follows that we do not accept counsel for Mr Alamoti's submission on thisaspect of s 20(a).Section 20(c) — risk to evidential material[45] Counsel for Mr Alamoti submits that the Judge erred in finding that DetectiveGraham believed on reasonable grounds that evidential material relating to thesuspected offending would be destroyed, concealed, altered or damaged in the absenceof an immediate entry and search of the vehicle.[46] The Judge's findings on this issue were as follows:10[90] As to the [officer's] belief about what might happen to evidentialmaterial if the vehicle was not searched immediately, that is moreproblematical. The vehicle was to be impounded and therefore under thecontrol of the Police. On the face of it, the risk of interference with theevidential material did not appear to be high. As [the] vehicle was underPolice control none of the defendants would have any access to it. Howeverit is clear from the evidence that the vehicle was impounded by ConstableGallaghan who was the officer manning the checkpoint where Mr Wiles failedto stop. It also appears from the evidence that the advice to Mr Wiles that thevehicle was to be impounded was given to Mr Wiles immediately he wasarrested or very shortly thereafter. However, the invocation of the power tosearch without a warrant pursuant to s 20 of the Act was made by DetectiveGraham. But he did so some time after Constable Gallaghan informed MrWiles that the vehicle was to be impounded. Also there is no evidence thatConstable Gallaghan or any other officer had told Detective Graham beforehe invoked s 20 that the vehicle was to be impounded. Detective Grahamstated in evidence that he was unaware that the law required the vehicle to beimpounded. The issue under s 20 is whether Detective Graham had reasonablegrounds to believe that if a search of the vehicle was not carried outimmediately that evidential material would be at risk. The reasonableness ofDetective Graham's belief has to be considered in the light of his knowledgeat the time he invoked s 20. His belief at that point, albeit incorrect, was thatthe vehicle would be left on the roadside for some time and therefore animmediate search was justified. The circumstances were such that ConstableGraham did have reasonable grounds to believe that evidence might be at risk.[47] Counsel for Mr Alamoti submitted that the vehicle had been immobilised, theoccupants had been removed and detained, and apart from one minor incident werepassive and cooperative. He submitted that there was no suggestion of a risk ofinterference from any other member of the public.[48] Counsel for Mr Alamoti also submitted that s 117 of the Act permittedDetective Graham to enter and secure the vehicle and any items found in it for up tosix hours pending the making of an application for a search warrant. Counsel10 Alamoti, above n 1.submitted that the Judge's assessment under s 20(c) failed to take into account thesteps open to Detective Graham under s 117.[49] In response, Crown counsel submitted that s 20(c) was satisfied in thecircumstances. Although she submitted that two of the four occupants remained atliberty, in fact all four were under arrest. Crown counsel also submitted that thevehicle might have been interfered with on expiry of the six-hour period provided forin s 117.Discussion[50] In the passage set out above, the Judge accepted that Detective Grahambelieved evidential material would be destroyed, concealed, altered or damaged in theabsence of an immediate entry and search. However, we are not satisfied that theDetective did turn his mind to this point, as appears from the following passages fromthe evidence:Q. If you didn't carry out the search there and then but you'd post a guardunder section 117, go away and apply for the warrant, you hadn'tturned your mind to whether in that situation we're going to loseevidential material?A. Ah –Q. In the sense of destroyed, concealed, altered or damaged.A. It would be a, it would be a fleeting thought in my thought processbecause it's so unreasonable.Q. Yes, so you hadn't turned your mind to that question?A. It would, it would be a fleeting thought, as, as is often the case.Q. Had you turned your mind to it or not?A. Oh, I can't say ...[51] It follows that we accept the submissions for Mr Alamoti that the Judge erred(in one respect) in finding that the searches of the vehicle were lawful.Section 30 of the Evidence Act[52] That brings us to the determination the Judge made under s 30 of the EvidenceAct, which was that it would be disproportionate to the impropriety to exclude theevidence found in the search of the vehicle.11[53] In making such a determination, the Court may have regard to the matters listedin s 30(3), which are as follows:30 Improperly obtained evidence(3) For the purposes of subsection (2), the court may, among any othermatters, have regard to the following:(a) the importance of any right breached by the impropriety andthe seriousness of the intrusion on it:(b) the nature of the impropriety, in particular, whether it wasdeliberate, reckless, or done in bad faith:(c) the nature and quality of the improperly obtained evidence:(d) the seriousness of the offence with which the defendant ischarged:(e) whether there were any other investigatory techniques notinvolving any breach of the rights that were known to beavailable but were not used:(f) whether there are alternative remedies to exclusion of theevidence that can adequately provide redress to the defendant:(g) whether the impropriety was necessary to avoid apprehendedphysical danger to the Police or others:(h) whether there was any urgency in obtaining the improperlyobtained evidence.[54] The Judge assessed these matters as follows:12[92] In the event that I am wrong in holding that the warrantless searchesof the vehicle, and Ms Gilfedder and the sock were lawful, it is then necessaryto consider s 30 of the Evidence Act. In that regard, the search of the motorvehicle and of the sock are less intrusive than a search of a person or a home.11 Alamoti, above n 1, at [92]–[94].12 Alamoti, above n 1 (footnotes omitted). The searches of Ms Gilfedder and the sock are irrelevantto this appeal.In R v Iwihora the Court of Appeal said that the intrusion to privacy when avehicle is being impounded is "very low down the scale of seriousness".Furthermore, as the vehicle had been impounded it needed to be searchedpursuant to s 96(4) of the Land Transport Act to identify any personal propertywhich had to be released to the occupants. Similarly the search of the sock isequally very low down the scale. Any impropriety was minor. The Police[officers'] actions were certainly not reckless or done in bad faith. Theiractions were not done in deliberate breach of the Act nor in a cavalier manneras asserted by Counsel for Ms Gilfedder. They were decisions made in arapidly developing situation. The officers were faced with a situation wherethere was a very determined attempt to escape the Police and then thediscovery of methamphetamine. The evidence obtained is highly probative inrelation to the charges the defendants face which are very serious carrying inone case a maximum penalty of life imprisonment.[94] In all the circumstances, exclusion of the evidence obtained would notbe proportionate to the impropriety and therefore the evidence of what wasobtained in the warrantless searches is admissible at the defendant's trial.[55] Counsel does not challenge the Judge's statement that the expectation ofprivacy in respect of a vehicle is less than in a home, for instance. In our view that isparticularly so in this case as Mr Alamoti was merely a passenger in the vehicle.Counsel for Mr Alamoti submitted, however, that s 96(4) of the Land Transport Act1998 does not require a search of an impounded vehicle as the Judge said. Rather, itrequires the police to release personal property in the vehicle upon a request bysomeone entitled.[56] Notwithstanding this, we are not persuaded that the Judge erred in hisconclusion. As the Judge said, the search occurred in a rapidly developing situationand the privacy expectation in respect of a vehicle is low. The impropriety arose fromthe Detective's failure to turn his mind to the strict requirements of the Act. The failureto obtain a warrant was therefore caused by inadvertence rather than by beingdeliberate or reckless, or acting in bad faith. The items found in the search are alsophysical evidence of drug offending.[57] It follows that we are not persuaded that the Judge erred in concluding thatexclusion of the evidence would be disproportionate to the impropriety of the search.Search of the motel rooms[58] At about 2 pm Detective Graham directed a Senior Constable Vartan to securethe motel rooms. By this time, Detective Graham had been informed that the smokesensors in one of the rooms had been taped over and he therefore became concernedthat the room had been used to manufacture methamphetamine.[59] Given that, at approximately 2.30 pm Detective Fouhy asked Detective Bindonto search the rooms, he being a member of the Police National Clandestine Laboratoryteam. Detective Bindon was informed of the pursuit, that the police had located asignificant amount of cash (as they had, in searching Ms Gilfedder), what theybelieved were drugs, and that the motel cleaners had observed a large gas burner inone of the rooms and that smoke sensors in one of the rooms had been covered.Detective Bindon also gave evidence that it is reasonably common for a motel roomto be used as a place to manufacture methamphetamine.[60] On arrival at the motel, Detective Bindon was briefed by Constable Vartan whohad made enquiries of the motel staff. The Detective then obtained the keys to therooms, entered them and, on his evidence, "seized pretty much everything that was inthe units". He entered the first room at 4.20 pm, the second after 6 pm and he left themotel after 7 pm. The items seized from the rooms included a computer alleged tohave been stolen, a taser and a container of a white substance initially believed to bemethamphetamine but which analysis has shown to be phosphorus acid.[61] Detective Bindon's evidence was that he invoked the power to search conferredby s 15 of the Act and the Judge analysed the lawfulness of the search of the motelrooms pursuant to that provision.13 Counsel for Mr Alamoti submits that the Judgeerred in this respect and that he should have assessed the lawfulness of the searchpursuant to s 83, that being the provision Detective Fouhy suggested to DetectiveBindon when they first spoke.13 Alamoti, above n 1, at [95]–[100].[62] We do not accept this submission. Detective Bindon's evidence was that herelied on s 15 and the Judge was correct to analyse the search on the basis of thatprovision.Section 15[63] Section 15 of the Act provides:15 Entry without warrant to find and avoid loss of evidentialmaterial relating to certain offencesA constable may enter and search a place without a warrant if he orshe has reasonable grounds—(a) to suspect that an offence punishable by imprisonment for aterm of 14 years or more has been committed, or is beingcommitted, or is about to be committed; and(b) to believe—(i) that evidential material relating to the offence is inthat place; and(ii) that, if entry is delayed in order to obtain a searchwarrant, the evidential material will be destroyed,concealed, altered, or damaged.[64] Counsel for Mr Alamoti does not dispute the Judge's finding that therequirements of s 15(a) were met. However, he does dispute the Judge's findings thats 15(b)(i) and (ii) were satisfied:14[97] In all the circumstances the first limb of s 15 is met. The next issue iswhether or not there were reasonable grounds to believe (a higher test) thatthere would be evidential material relating to that offence present and if entrywas delayed the evidential material would be at risk if there was a delay inorder to obtain a search warrant. Given the clear link of the defendants to themotel and given Detective Bindon's personal knowledge of the discovery ofmethamphetamine in the possession of the defendants, possession of a largeamount of cash, and the information about the taping over of the smokesensors and the presence of the gas burner, Detective Bindon had more than asuspicion or a supposition that the evidential material would be found in themotels.[98] The issue then is whether or not there were reasonable grounds tobelieve that the evidential material would be at risk if entry was delayed whilea warrant was obtained.14 Alamoti, above n 1.[99] The defendants had been arrested and therefore could not return to themotel. The Police were clearly aware that Mr White had been with thedefendants, was mobile, and appeared to be aware that the defendants hadbeen apprehended by the Police. Whilst there was a possibility that Mr Whitemay return to the motel it appears to be no more than that. There was noinformation that clearly suggested to Detective Bindon that Mr White was infact on his way back to the motel, or that he very likely was. However, therisk of evidential material being at risk was not simply from Mr White.Detective Bindon believed that others might enter the motel and put anyevidence at risk, particularly if manufacturing was taking place. At 4:20pmin the afternoon at some distance from the nearest Court, it was not practicableto attempt to obtain a search warrant.[100] Similarly the power under s 117 to secure the premises for six hourswas not practicable. It appears that an officer arrived at the motel units ataround 2pm. If s 117 had been utilised that power would have lapsed by 8pmand given that the local Court closed at 5pm the officer's belief that they couldnot obtain a warrant was reasonable. In any event, s 117 is only available ifan application for a search was is [sic] about to be made or has been made. Ihave already accepted that in the circumstances it was not practicable for thePolice to apply for a search warrant and therefore s 117 is of no application.Discussion[65] As to s 15(b)(i), counsel for Mr Alamoti submitted that Detective Bindon didnot explain why the various matters referred to in [97] of the judgment led him tobelieve, on reasonable grounds, that there was evidence of manufacture or supply ofmethamphetamine in the rooms.[66] We do not accept this submission. The fact that the smoke sensors had beentaped over and the presence of the burner pointed to manufacture.[67] However, we do accept counsel for Mr Alamoti's submission that the Judgeerred in determining that Detective Bindon believed, on reasonable grounds, thatevidential material would be destroyed, concealed, altered or damaged if entry weredelayed in order to obtain a search warrant. The gist of the Detective's evidence wasthat he and Detective Fouhy agreed when they first spoke at approximately 2.30 pmthat no search warrant would be sought in respect of the motel rooms. It is apparentfrom Detective Bindon's evidence that he simply did not consider the matters referredto in s 15(b)(ii).[68] It follows that, as with the search of the vehicle, we are satisfied the Judgeerred in one respect in determining that the search of the motel rooms was lawful.Section 30 of the Evidence Act[69] Given the conclusion he reached, the Judge was not required to assess whetherit would be disproportionate to the impropriety to exclude the evidence obtained fromthe search of the motel rooms. Counsel for Mr Alamoti submitted that the evidenceshould be excluded as the police were reckless, Detective Fouhy had wrongly invokeds 83 of the Act, the police should have but did not apply for a warrant, no alternativeremedy to exclusion would provide redress to Mr Alamoti, and there was no particularurgency compelling a search of the motel rooms.[70] All of these submissions are well made. The critical issue for us, however, isthat this was a search of motel rooms. We do not accept counsel for Mr Alamoti'ssubmission that an occupant of such room has an expectation of privacy similar to thatof a residential dwelling. There is clear authority to the effect that the expectation ofprivacy in such a room where staff may come and go — as they did in this case — isless than exists in a home.15 The search also revealed physical evidence of differentforms of offending.[71] For this reason, we do not consider that exclusion of the evidence obtainedwould be proportionate to the impropriety.Conclusion[72] The Judge did not err in finding that Detective Graham's search of Mr Alamotiwas lawful.[73] The Judge erred in finding that the searches of the vehicle and motel roomswere lawful. To exclude the evidence obtained in those searches would, however, bedisproportionate to the improprieties in issue.[74] We dismiss this appeal accordingly.[75] For fair trial reasons, we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internet15 Nouri v R [2012] NZCA 35 at [26]–[29].or other publicly available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Crown Law Office, Wellington for Respondent