R v Cameron [2018] NZDC 16448 (13 August 2018)

Last Updated: 30 August 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT BLENHEIM

CRI-2017-006-001019

[2018] NZDC 16448 Final Warning

THE QUEEN

v

JENNA MAREE CAMERON

Hearing:	26 June 2018
Appearances:	S J Revell for the Crown E J Riddell for the Defendant
Judgment:	13 August 2018

RULING OF JUDGE W K HASTINGS

(Search of car and phone)

[1] Ms Cameron is charged with dealing in class A, B and C controlled drugs. She has challenged the admissibility of evidence found as a result of two searches.1 The first search was of a car in which she was found, in the driver’s seat. The second was of a cellphone found in the car under the drivers’ seat.

[2] The defence submitted that the search of the car was unreasonable and unlawful because the arresting constable had no reasonable grounds to believe that evidential material relating to the offence for which Ms Cameron was arrested was in

1 The Crown received only part of the file from the Police. As a result, counsel agreed to adjourn consideration of an application under s 30 of the Criminal Disclosure Act for disclosure of redacted material contained in the applications for production orders on 11 May 2017 and 14 July 2017, as well as a defence challenge to the admissibility of evidence obtained from production orders claimed to be excessive.

the car. The defence submitted that the seizure and search of the cellphone was also unreasonable and unlawful whether it is considered part of the search of the car, or of the defendant’s person because it was not carried by the defendant or in her immediate control. The defence submitted that there was plenty of time to obtain a warrant to search the cellphone. The defence submitted that evidence obtained from both searches should be excluded under s 30 of the Evidence Act 2006.

[3] The Crown submitted that the car was lawfully searched under s 84 of the Search and Surveillance Act 2012 because the arresting constable had reasonable grounds to believe that evidential material relating to the offence for which Ms Cameron was arrested was in the car. The Crown submitted that the seizure and search of the defendant’s cellphone was part of the lawful search of the car. The Crown submitted the search of the cellphone was also lawful under ss 88 and 125 of the Search and Surveillance Act 2012 because it was in her immediate control when she was arrested and there were reasonable grounds to believe it would contain evidence of drug dealing. In those circumstances, the Crown submitted that it was not necessary for the Police to have obtained a warrant to search the phone, and in any event they would have had no trouble obtaining one. In the event I found either or both searches unlawful, the Crown submitted that the evidence obtained is nonetheless admissible under s 30 of the Evidence Act 2006.

Background

[4] At 11.30 in the morning of 26 August 2017 [Constable 1] was on a routine patrol. She was driving a marked patrol car. She was in uniform, and by herself. A car parked in some bushes in Sheps Park, off Severn Street, caught her attention because it was unusual for a car to be parked like that. She parked her patrol vehicle, went up to the car, and spoke to the defendant, who was in the driver’s seat. She noticed the car was cluttered inside. When the defendant gave her details to [Constable 1], [Constable 1] returned to the patrol car. A check of the vehicle’s registration revealed nothing of interest, but a check of the defendant’s name with Police Communications did. There was an alert attached to the defendant’s name that required the constable who found her to arrest her. [Constable 1] received the alert to her phone.

[5] The alert said that the defendant was “required to arrest”. It went on to state:

If located arrest for Offering to Supply class A controlled drug namely Methamphetamine.

Seize and secure cell phone and possibly a laptop pursuant to arrest, S&S Act Section 88. Don’t let her turn them off.

If located in vehicle search pursuant to arrest S&S Act Section 84 for evidence (drugs phone etc).

Pursuant to Section 130 S&S Act advise you require her access information for her phone including pin number and computer.

[6] The alert said to advise [Detective 1] or [Sergeant 1] when the defendant was found. [Constable 1] confirmed that the alert produced in Court was the same alert she read on her phone when she returned to the car to arrest the defendant. On her way back to the defendant’s car, she confirmed with Police Communications that the defendant was wanted for arrest. [Constable 1] told her she was under arrest, allowed her to lock the car, and took her back to the police station, about eight minutes away.

[7] At the station, [Constable 1] phoned [Sergeant 1] who told her that there was an investigation into the defendant’s activity. He said he believed that she was “going between the North and South Island dealing and it’s highly likely that there might have been some evidential material in the car”. [Sergeant 1] said he told [Constable 1] that he had formed a belief that “a cellphone used to facilitate the drug dealing and evidential material that we’re looking for was most likely in the vehicle.” He said he told [Constable 1] that the cellphone would be of interest because “it would help corroborate the text messaging, in particular confirming the cellphone number that had been used in the production orders.” [Constable 1] said that she “put together” the contents of the alert with the information from her conversation with [Sergeant 1], and formed a belief that “it could’ve been likely that she was doing some of her dealing from that vehicle” and that “we might find a class A drug in there. We might find pipes. We might find anything or laptops, anything electronic that might contain information about the offending.”

[8] [Constable 1] then told the defendant that her vehicle was going to be searched and asked for the keys. The Constable, with three other police officers, went back to the car. When they got there, they realised that the defendant had given them the wrong key. The correct key had been hidden on her person. [Constable 1] went back

to the station, retrieved the correct key, returned to the car, and the search began. A cellphone was found hidden under the driver’s seat and was seized. It was searched back at the police station, and data was extracted. No warrant was obtained for either the search of the car or the search of the cellphone.

[9] As a result of the search of the car, the defendant was charged with possession of utensils (glass pipes) and possession of LSD (Class A). As a result of the search of the cellphone, she faces one representative charge of offering to supply methamphetamine (Class A) and one representative charge of offering to supply MDMA (Class B).

Discussion

[10] At the heart of this matter is the fact that [Constable 1] was working alone. She said in her evidence that she could not arrest the defendant, and look after her, while, at the same time, she searched the car. When she discovered that the defendant needed to be arrested, she took a reasonable and sensible course of action. She arrested the defendant, secured the car, took the defendant to the police station, and contacted the investigating sergeant in accordance with the alert. She said she was at the Police station for 20 to 30 minutes, and that it was about eight minutes from the defendant’s car to the station. Including the time taken for the return trip to the station to get the car key that the defendant had concealed, just over an hour would have elapsed from time of arrest to the time the search of the car began. This means that the search of the car was about an hour after the arrest, and the search of the phone later still. They did not happen simultaneously. Between the arrest and the search of the car, [Constable 1] obtained more information from [Sergeant 1].

[11] I turn first to the search of the car. Section 84 states:

84 Warrantless entry and search of vehicle after arrest

A person to whom this subpart applies who has arrested a person and who has reasonable grounds to believe that evidential material relating to the offence for which the person was arrested is in or on a vehicle may enter and search it without a warrant.

[12] Ms Riddell submitted that when [Constable 1] first encountered the defendant, there was nothing about the car or the defendant that would have provided reasonable grounds to believe there was evidential material in the car. There were no utensils obviously visible, there was no smell, the defendant was not acting as if she was under the influence of drugs, and the car itself was not linked to any offending. I agree with Ms Riddell up to this point in the chronology, but to my mind, the facts to be analysed in order to ascertain whether there were reasonable grounds to believe that evidential material was in the car must be those up to the time of search, not stopping at the time of arrest.

[13] There is a gap in this case between the time of arrest and the time of search. Section 84 applies to a search of a vehicle after arrest. It requires the arresting officer to also be the person who enters and searches the vehicle, once the arresting officer has reasonable grounds to believe there is evidential material in the vehicle relating to the office for which the person is arrested. The belief is relevant to the search, and must be formed before the search is started. The belief is not relevant to the antecedent arrest. Nothing in the provision states how long after an arrest a search must commence once the officer has formed the requisite belief, but in warrantless search cases, it would be reasonable to infer that the search must take place after the arrest as soon as is practicable in the circumstances. In the circumstances of this case, in which [Constable 1] was working alone and had to perform a number of tasks before being able to search the car, and given the relatively short time in which those tasks were performed, I do not think the time that elapsed between arrest and search is of concern.

[14] Two conditions must be satisfied before a s 84 search is commenced. The person must have been arrested, and the arresting officer must have formed a belief on reasonable grounds. At the time of search, [Constable 1] had formed a belief that there was evidential material in the car related to the offences for which the defendant was arrested, not just on the content of the alert at the time arrest, but also on the telephone conversation she had with [Sergeant 1]. The alert mentions a cellphone three times, a laptop or computer twice, and drugs once. It alerts the arresting officer to what is required if the defendant was found in a vehicle, as it turned out she was. Having emphasised the cellphone’s significance by mentioning it three times in the alert, [Sergeant 1] then explained that a cellphone is used for drug dealing and that it could

also contain corroborative evidence. The significance of alerting the arresting officer to the actions that needed to be taken if the defendant was found in a vehicle were that he believed she had been dealing in both the North and South Islands, and that they had not been able to locate her. To my mind, this information provided [Constable 1] reasonable grounds to believe that there was evidential material in the car that was relevant to the offending. The information also provided a nexus2 between the car and the offending, and between the phone and the offending3. She said she “pulled together” this information to form a belief based on the cumulative effect4 of this information. [Constable 1] had an objective and credible basis going well beyond surmise or suspicion5, communicated through the alert and through her conversation with [Sergeant 1], that there would be evidential material in the car, before she searched it with the other police officers. The search of the car was therefore lawful in the sense that it complied with s 84, and was reasonable in the circumstances.

[15] I turn now to the search of the cellphone found under the driver’s seat as a result of the search of the car. Both Ms Revell and Ms Riddell submitted that s 88 and therefore s 125 do not apply. Ms Revell however said that if they do apply, the searches were still lawful under those sections because the location of the cellphone under her seat at the time of her arrest meant that it was in her immediate control, and given [Constable 1]’s knowledge of its connection to the alleged offending, a search warrant was unnecessary. Ms Riddell submitted that the only section that could apply is s 84, and that provision does not permit data extraction without a warrant. She said it does not matter that a warrant would probably have been granted if the Police had applied for one. She submitted that “the law is in place to ensure privacy interests of individuals are protected against State intrusion.”

[16] Section 88 provides as follows:

88 Warrantless search of arrested or detained person

(1) A person to whom this subpart applies may, in the circumstances set out in subsection (2), carry out a search of a person.

2 McLean v R [2015] NZCA 101.

3 Puna v R [2016] NZCA 455.

4 R v Yeh [2007] NZCA 580 at [37].

5 R v Laugalis (1993) 10 CRNZ 350 at 354.

(2) The circumstances are that the person to whom this subpart applies has reasonable grounds to believe that there is any thing on or carried by a person who is arrested or detained under a statutory power of detention that—

...

(c) is evidential material relating to the offence in respect of which the arrest is made or the person is detained.

[17] The alert referred to s 88 as the basis for searching the cellphone if one was found. Immediately following the reference, it said “Don’t let her turn them off”. The alert was therefore written on the assumption that the defendant would have the cellphone on her person, or in her control, when she was arrested, and that it would be seized and searched at the time of arrest. If that had been the case, s 125 would also have applied:

125 Special rules about searching persons

(1) If a person exercises a power to search a person, the person exercising the power—

...

(i) may search any item that—

• (i) the person is wearing or carrying; or
• (ii) is in the person's physical possession or immediate control; and
  

(j) may seize any thing carried by the person or in the physical possession or immediate control of the person being searched if that thing is the subject of the search or may otherwise be lawfully seized;

...

[18] Section 125 expands the scope of s 88 to some extent. Section 88 requires the thing searched to be “carried” by the person, whereas s 125 extends to include “wearing”, “carrying”, and being in the person’s “physical possession” or “immediate control”.

[19] Had the car been searched immediately after the defendant had been arrested, there would have been a legitimate argument on whether the cellphone under the driver’s seat was in the defendant’s immediate control in terms of ss 88 and 125. But the car was not searched immediately after the arrest. The defendant could not be said to have had any control over the cellphone when it was in the car at the time of the search and she was back at the police station. I do not think that s 88 and s 125 are relevant in these circumstances. Once again, the relevant time of factual analysis must

be the time of search about an hour later, not the time of arrest, and by the time of the search, [Constable 1] had reasonable grounds to believe that not only would there be evidence related to the alleged offending in the car, but also that the cellphone would contain evidence that could corroborate evidence already obtained. In those circumstances, s 110 would apply:

110 Search powers

Every search power authorises the person exercising it—

(a) to enter and search the place, vehicle, or other thing that the person is authorised to enter and search, and any item or items found in that place or vehicle or thing, at any time that is reasonable: ...

(d) to seize anything that is the subject of the search or anything else that may be lawfully seized:...

(h) to use any reasonable measures to access a computer system or other data storage device located (in whole or in part) at the place, vehicle, or other thing if any intangible material that is the subject of the search may be in that computer system or other device:

[20] [Constable 1] had reasonable grounds to believe, on the basis of the alert and the conversation with [Sergeant 1], that any cellphone found was likely to be connected to the alleged offending and likely to contain evidence of that alleged offending. The Supreme Court in Dotcom v Attorney-General6 identified computers, including smartphones, as raising special privacy concerns, and as such, there must be sufficient grounds to support such a search of them.7 In Hoete v R8 the Court of Appeal said that there is less privacy interest in a cellphone, a “well-known tool of a drug dealer’s trade”9 that is suspected to contain evidence of drug offending, than there is in a camera memory card for which, at the time it was seized, the Police had no evidential basis to suspect it contained evidence relevant to the charges faced by the defendant. Here, there were reasonable grounds to believe the cellphone would contain evidential material relevant to the charges faced by the defendant. Having formed that belief, and having found a cellphone during a lawful search the car, the Police were entitled by s 110(h) to use “any reasonable measures” to access the cellphone to extract any intangible material that may have been in the device. They

6 [2014] NZSC 199.

7 Ibid at [191] and [192].

8 [2013] NZCA 432.

9 Ibid at [32].

could have sought a warrant, just as they appear to have applied for a production order on the SIM cards a few days later, but they did not have to. For these reasons, I consider the search of the phone was also lawful and reasonable in these circumstances.

[21] For the sake of completeness, I will record that I would also have admitted the evidence under s 30. While the intrusion into the rights to privacy with respect to a car in which the defendant appeared to be living, and a cellphone found in that car, is significant, I do not consider there was any deliberate impropriety or bad faith on the part of [Constable 1]. The nature and quality of the evidence found is directly relevant to the many drug charges the defendant is facing. One of the charges filed as a result of the search of the cellphone carries a maximum penalty of life imprisonment. It would have been possible for the police also to have obtained a warrant to search the cellphone, but the warrantless search did not give them access to evidence that could only have been obtained with a warrant. In these circumstances, exclusion of this evidence would be a disproportionate response to any impropriety taking into account the need for an effective and credible system of justice.

[22] For these reasons, I rule the evidence obtained as a result of the searches of the car and the cellphone admissible.

W K Hastings District Court Judge