R v Matthews [2018] NZDC 20711 (9 October 2018)

Last Updated: 15 August 2019

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

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2018-004-003812

[2018] NZDC 20711

THE QUEEN

v

MICHAEL MURRAY MATTHEWS

Hearing:	17 August 2018
Appearances:	S Teppett for the Crown D Dufty for the Defendant
Judgment:	9 October 2018

PRE-TRIAL RULING OF JUDGE R G RONAYNE

[Admissibility of evidence]

Introduction

[1] In late April 2018, the defendant was a suspect for separate and unrelated violent offending. As a result, a search warrant was issued and executed at the defendant’s address on 28 April 2018.

[2] The search warrant was issued because it was established, to the satisfaction of the issuer, that there were reasonable grounds to believe that specified clothing items, cellular telephones and smartphones of relevance to the inquiry would be found.

[3] During the search, police located a small amount of cannabis concealed in a dehumidifier in the garage and then invoked warrantless search powers pursuant to the

R v MICHAEL MURRAY MATTHEWS [2018] NZDC 20711 [9 October 2018]

Search and Surveillance Act 2012 (“SSA”) and continued searching the garage where the cannabis had been found and then found, behind a fridge, a small box containing a knuckleduster taser. The police then located a locked safe in a bedroom. The safe smelt of cannabis. The safe was seized and later found to contain 448 live

0.22 hollow-point rounds of ammunition and more cannabis.

[4] The legality of the original search warrant was not initially challenged, but it is said, by the defendant, that the warrantless search was unlawful and unreasonable. Although that was the original position adopted by the defendant, he now challenges the original search warrant submitting that it was a mere ruse to get into the house to look for Mr Matthews in order to obtain evidence of other offending.

Evidence

[5] Two police officers, [Officer 1] and [Officer 2], gave evidence. The defendant called [name deleted – witness 1] to give evidence.

[6] [Officer 1] is a detective constable who assisted in the execution of the search warrant on 28 April.

[7] The police arrived at about 4.30 pm. The property searched is a two-bedroom stand-alone dwelling. A female occupant [witness 1] and a baby were the only people present.

[8] [Officer 1] said that [witness 1], whose details were obtained, was given a copy of the search warrant and was told that she was detained while the police executed the warrant. She was also given her rights in accordance with the New Zealand Bill of Rights Act. [Witness 1] told [Officer 1] she was [personal details deleted]. She said that, as a result of an argument, he had left the address several days previously.

[9] While [Officer 1] dealt with [witness 1], another searching police officer drew to [Officer 1]’s attention that a suspicious item had been located concealed inside the dehumidifier in the garage. [Witness 1] was again given her rights and acknowledged an understanding of those. [Witness 1] said that the dehumidifier was “ours”.

[10] [Witness 1] was provided information about items that had been seized during the execution of the warrant. That information was provided to her by [Officer 2].

[11] [Officer 1] accepted that the police, as well as executing the search warrant, were looking for Mr Matthews. [Officer 1] was concerned about finding Mr Matthews because she had concerns for [witness 1]’s safety.

[12] [Officer 1] confirmed that although finding Mr Matthews was not the primary purpose of the search most of her conversation with [witness 1] concerned trying to locate Mr Matthews.

[13] [Officer 1] was not immediately able to recall what specific items were referred to in the search warrant, but did recall that clothing was being searched for. She also recalled that somebody specifically drew to [witness 1]’s attention the items listed in the search warrant. [Officer 1] confirmed, when cross-examined, that she notified [witness 1] that the police were invoking a power of search under the SSA. She also confirmed that [Officer 3] also gave the same advice to [witness 1].

[14] [Officer 1] was not challenged in cross-examination to the effect that she did not advise [witness 1] of the nature of the ongoing search under the SSA. To the extent that she was challenged at all, it was pointed out to her in cross-examination that the giving of that advice to [witness 1] was not recorded in her notebook. However, [Officer 1]’s notebook did note the giving and acknowledgement of “BOR” meaning Bill of Rights and that that was in relation to the invocation of the search under the SSA.

[15] [Officer 2], a detective constable, was called. He too assisted in the execution of the search warrant. He was assigned the role of Officer in Charge of Exhibits.

[16] [Officer 2] was alerted by another searching police officer, [Officer 3] of the finding of a bag of cannabis inside the garage. [Officer 2] made his own observation of that item in the garage. Having been a police officer for 10 years, he was satisfied that the snap lock bag contained cannabis and that therefore more illicit drug related items might be located at the address and thus he invoked search powers under the

SSA. He then went to notify the occupant of the invocation of those search powers, but was satisfied that [Officer 1] had already done so.

[17] [Officer 2] was then advised by other police staff of the finding of a safe in a bedroom. He was told that the safe smelt of cannabis and confirmed that for himself. [Witness 1] said she could not recall the code to open the safe. A decision was made to seize the safe. Various cellphones were also seized. Later the safe was opened and the ammunition and further cannabis were found.

[18] [Officer 2] confirmed that the police were not initially searching for drugs or weapons, but, rather, executing the search warrant, looking for the items referred to in it. He did accept that one of the purposes for being there was to look for Mr Matthews also.

[19] Cross-examined, [Officer 2] pointed out that, although the photographic images from CCTV relating to the original unrelated offending for which Mr Matthews was sought as a suspect were of relatively poor quality, they were sufficient to enable the items identified in the search warrant to be sought.

[20] [Officer 2] could not say what the police were looking for when looking in the dehumidifier, because he was not there when the cannabis was located in it. In cross-examination, he accepted that had Mr Matthews been at the address he would have been arrested and certainly the police were looking for him.

[21] He also confirmed that the grounds for invoking a search for further drug related items, such as cannabis, was based on the finding of hidden cannabis in the dehumidifier. Other things that he expected might be found, were implements for using cannabis. While accepting that the amount of cannabis found in the dehumidifier was “not a huge amount,” [Officer 2] said he had reasonable grounds to continue the search for other cannabis related items or more cannabis.

[22] [Officer 2] smelt cannabis immediately around the safe and said the safe itself smelt of cannabis.

[23] [Witness 1] was called to give evidence by the defendant. She said she is [personal details deleted]. She was the only adult present when the police arrived at the address to execute the search warrant.

[24] [Witness 1] denied being given a copy of the search warrant. When asked to clarify, she then said that she was given a copy of the search warrant “...towards the ending when I had asked for it”. That proposition, regarding timing, had not been put to the police officers.

[25] [Witness 1] claimed that she was told by [Officer 1] that the police were there searching for [the defendant].

[26] [Witness 1] also said that the police did not point out the items that they were searching for.

[27] Contrary to the evidence of the police officers she also said that she was never spoken to about the cannabis that had been found in the garage.

[28] [Witness 1] said that she was twice told she had a right to remain silent. She said the first time she was given her rights was after she had been told that the police were there looking for [the defendant] and the second time was after she “overheard” the police talking about finding drugs in the house.

[29] When asked to relate to the Court the conversation she had with [Officer 1], [witness 1] said that she was told by [Officer 1] that there was methamphetamine found. She then said that [Officer 1] was then corrected by another officer who told [Officer 1] that it was cannabis that was found. Then she said that she heard [Officer 1] tell the other officer to look for more things instead of looking for what they had come to look for, namely [the defendant]. She said that she was then, again, given her rights.

[30] [Witness 1] made the general claim in evidence that she felt that she had been taken advantage of. She said that nothing further was discussed, although she was

asked a lot of questions. She said that the police did not tell her what was going to be seized. She also said that she did not know what items were in fact seized.

[31] Despite claiming a lack of knowledge about what items were seized, [Witness 1] said that she was asked who owned the safe and what was in it and that she had responded that it could possibly be things like passports. She said that the police did not advise her why they were taking the safe.

[32] [Witness 1] denied ever being told by the police that they were conducting a search under the SSA for drugs.

[33] [Witness 1] said that notwithstanding that she knows what cannabis smells like, she would “...swear on my kid’s life I did not smell cannabis”. She said she was never asked about the smell of cannabis.

[34] When cross-examined, [witness 1] began to complain that [Officer 1] hardly gave her a chance to talk, a proposition not put to [Officer 1]. She then claimed that the officer told her that she had to give information. She also claimed that she was “...threatened about CYF being involved”. A proposition that was also not put to [Officer 1]. In fact, [witness 1] accepted that there was an occasion when she declined to provide any further information to [Officer 1].

[35] [Witness 1] had the presence of mind to telephone Mr Matthews and tell him that the police were at the house searching it. Later still, [witness 1] said that, although she was given her rights a second time after drugs were found, she did not recall being told that the police were invoking further powers under the SSA.

Assessment of the evidence

[36] To the extent that there is factual dispute between what [witness 1] has told the Court and what [Officer 1] and [Officer 2] have told the Court, I prefer the evidence of [Officer 1] and [Officer 2].

[37] [Witness 1]’s evidence lacked an air of reality and plausibility. She seemed determined to convey the impression that she was only ever told that the police were

there to find Mr Matthews and that she was not told of the finding of the cannabis. Her version of events suggests the police, in her close presence, discussed the finding of cannabis, but never advised her of that development and never advised her of the invocation of the search pursuant to the SSA.

[38] Also, while claiming she was, in some unspecified way, somehow taken advantage of, and specifically threatened, and asked a lot of questions, she seemed to be conveying the general idea that all she was really told was that the police were only there to search for Mr Matthews.

[39] There are therefore internal aspects of [witness 1]’s evidence that are difficult, if not impossible, to logically reconcile. Despite claiming that she was asked a lot of questions, she also asserted that she was threatened and given hardly any chance to talk. At the same time, she was able to ring and speak to Mr Matthews.

[40] Aspects of [witness 1]’s evidence were not properly put to [Officer 1]. I do not accept her evidence that she was not given a search warrant until towards the end of the execution of the search.

[41] [Witness 1] seemed rehearsed and anxious to repeat that all she understood from [Officer 1] was that the police were there to search for Mr Matthews.

[42] I prefer the evidence of [Officer 2] regarding the smell of cannabis around and emanating from the safe.

[43] I reject the evidence of [witness 1] as unworthy of belief.

Factual findings

[44] I make the following factual findings.

[45] [Witness 1] was given her rights, pursuant to the New Zealand Bill of Rights Act, twice. She was first given them soon after the police arrived and again after the first bag of cannabis was found hidden in the dehumidifier.

[46] Immediately upon arrival, the police gave [witness 1] a copy of the search warrant.

[47] After the first bag of cannabis was found in the dehumidifier in the garage, the police invoked their powers of search under the SSA.

[48] [Witness 1] was informed by the police, soon after the first bag of cannabis was found, that the police were thereafter embarking on a search pursuant to the SSA looking for drugs or drug related items.

[49] There was a strong smell of cannabis in the immediate vicinity of the safe and emanating from the safe itself and the police detected that smell.

[50] The safe could not be opened and so it was seized.

[51] During the search, the knuckle duster was found behind a fridge, while searching for concealed cellphones.

[52] A collateral purpose of the police was to look for the defendant.

Submissions

[53] Detailed written and oral submissions have been made.

Crown’s submissions

[54] The ambit of the search warrant was sufficiently wide to render the search of the dehumidifier, the box containing the knuckle duster and the locked safe lawful.

[55] The evidential materials specified in the search warrant included mobile phones or electronic devices, clothing and a watch. Those things could easily be concealed anywhere at the address. The police had no knowledge as to specific areas in the address where such material would necessarily be located. Thus, a thorough search was justified. That included searching the dehumidifier and looking behind the

fridge and in the locked safe. Although the safe was seized pursuant to the warrantless search, police could have seized and searched it pursuant to the search warrant.

[56] In any event, to the extent that there were any shortcomings in either the warrant, or its execution or the warrantless search, the Court should find all evidence admissible pursuant to s 30 of the Evidence Act.

Defendant’s submissions

[57] Searching for items of clothing and mobile phones in places where such items would not ordinarily be found should be considered to be outside the ambit of the warrant and therefore unlawful. That is because a search warrant does not provide an unlimited licence to search a property or place.

[58] There was no legitimate basis for police to search for clothing in or around a fridge, in the garage or inside a dehumidifier.

[59] There were no legitimate grounds to search for mobile phones. In this sense, I take it that this submission is, in effect, a submission that the issue of the search warrant was unlawful in that there were no reasonable grounds to believe that evidential material would be found on any phones.

[60] The finding of a small amount of cannabis consistent with personal use in a dehumidifier in the garage did not provide a proper basis for invocation of a search pursuant to the SSA.

[61] There was no basis to seize and search the safe because there was no smell of cannabis emanating from it. This submission obviously is predicated on acceptance of [witness 1]’s claim that there was no such smell and the giving of untruthful evidence by the police.

[62] Finally, it is submitted for the defendant that the search had the hallmarks of a fishing expedition for weapons, drugs and other items, and that, although it is not illegal to have a collateral purpose for a search, this particular search was nothing more than a ruse to get into the house to look for Mr Matthews.

Analysis

[63] To justify the issue of a search warrant seeking cellular phones, the warrant application included the following:

• 6.4 It is also my experience the carriage of cellular phones and smartphones is ubiquitous in modern society. As an investigator, a mobile phone contains a wide variety of information which would be evidential material. This could be obtained either from the phone or subsequently from the network operator which the phone is connected to. This includes polling locations, messages and phone calls. Smartphones may also contain photographs taken prior to or after the offence.
  
• 6.5 Like clothing, a mobile phone is usually found in close proximity to the suspect either at their home address or on their person.
  

[64] My assessment is that, given the types of evidential material that can be found on a phone, there were reasonable grounds to believe that a search for phones associated with the defendant would find evidential material in respect of the offences being investigated.

[65] Having found that the safe smelt of cannabis, it was reasonable for the police to seize and search it.

[66] Having the reasonable and collateral purpose of finding Mr Matthews did not invalidate the search in all the circumstances.

[67] Overall, my assessment is that the application for the search warrant was reasonably transparent. It described in some detail the original offending giving rise to the application. It explained the basis upon which the defendant had been identified as a suspect. It revealed that he is a member of the Hells Angels Outlaw Motorcycle Club and has previous convictions for drug and violent offending. It explained that the applicant had no information to believe weapons or drugs would be located but that, given the nature of the offending being investigated, and the defendant’s history, there was a possibility of other evidence of other offending being found. It was plain, from the application, that the defendant was being actively sought by the police.

[68] Thus, I detect no bad faith far less any ruse on the part of the police. It was within normal everyday police knowledge that other items can be present and thus found. However, here other items were not specifically being searched for. The exigencies of police work demand reasonable thoroughness, especially when searching for small, easily concealed items. Such things could include cellphones and even items of clothing. Always reasonable expectations of privacy should be borne in mind, but in the context of the warrant and the nature of the items being sought. For example, if only a motor vehicle is sought pursuant to the execution of the search warrant, then it would be unreasonable to search behind a fridge or in a dehumidifier or in clothing draws. On the contrary, such thoroughness is not unreasonable when small easily hidden items are sought.

[69] In the context of this search, it was reasonable for the police to search thoroughly for small items such as cellphones that might be hidden. Even if I am wrong in that finding, given what I consider to be the overall legality of the search including for clothing, the search of the dehumidifier found in the garage constituted a trivial breach if a breach at all.

[70] For the foregoing reasons, the issue of the search warrant was lawful, the execution of the search warrant was lawful and the execution of the warrantless search pursuant to the SSA was lawful and thus all evidence found is admissible.

R G Ronayne District Court Judge