Holland v Police [2017] NZHC 2284 (21 September 2017)

Last Updated: 16 December 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-485-34 [2017] NZHC 2284

COURTNEY HOLLAND

v

NEW ZEALAND POLICE

Hearing:	5 September 2017
Appearances:	K Preston for Appellant R De Silva for Respondent
Judgment:	21 September 2017

JUDGMENT OF CLARK J

Introduction

[1] Ms Holland was convicted and sentenced after pleading guilty to one charge of offering to supply methamphetamine.¹ The evidence of offering to supply was obtained following a warrantless search of Ms Holland’s vehicle, her person and her cellphone under s 20 of the Search and Surveillance Act 2012 (the Act). Ms Holland now appeals the pre-trial ruling in which Judge Butler determined the evidence obtained from the warrantless search was admissible.²

¹ 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.

HOLLAND v NEW ZEALAND POLICE [2017] NZHC 2284 [21 September 2017]

Background facts

[2] On 5 September 2016 three police officers, Detective Sergeant Gibson, Detective Sergeant Wescott and Constable Defersha, observed Ms Holland driving in Newtown with an associate who was in the front passenger seat. One of the officers knew Ms Holland was on a reinstated driver’s licence. The police officers followed the 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 consensual search of the associate’s backpack. In the backpack was a butane pen burner of a kind commonly used for smoking methamphetamine.

[3] Following this discovery and because, from information held in the National Intelligence Application database, Detective Sergeant Gibson knew Ms Holland and her associate had been involved with methamphetamine in the past, he formed the view there was methamphetamine and items used for smoking methamphetamine in the vehicle, on Ms Holland and on her associate. He immediately invoked s 20 of the Search and Surveillance Act and conducted a warrantless search of the car. At around this time Ms Holland told Constable Defersha her handbag inside the vehicle contained a “couple of tinnies” and a methamphetamine pipe.

[4] The search of the vehicle located a methamphetamine pipe and a small quantity of cannabis within Ms Holland’s handbag. That gave rise to two charges: possession of cannabis;³ and possession of a methamphetamine pipe.⁴

[5] The search also produced a cellphone which was seized as evidence. The officers returned to the police station some 20–40 minutes after Ms Holland and her associate had been arrested. As a result of a strip search following Ms Holland’s arrest a “point bag” containing .25g of methamphetamine was discovered. This gave rise to a charge of possession of methamphetamine for supply.⁵

³ 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 the police station. Because he was conscious of the risks that the cellphone’s contents could be deleted remotely Detective Sergeant Gibson opened the cellphone and accessed the Facebook Messenger application (app). Messages on the app showed Ms Holland 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 offering to supply because she challenged the admissibility of the Facebook messages.

[8] A pre-trial application to determine the admissibility point was heard on 4 May 2017. At the pre-trial hearing Detective Sergeant Gibson gave evidence that his power to 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 the warrantless search was admissible. Reasons were to follow. Ms Holland vacated her not guilty plea and pleaded guilty. Judge Butler then sentenced Ms Holland in respect of all four charges.

[10] On 5 July 2017 Judge Butler issued his reasons for the pre-trial ruling. The Judge concluded the police had grounds to execute the warrantless search under s 20 of the Search and Surveillance Act and the examination of the cellphone and its contents was therefore authorised by s 110(h) of the Act.⁷ Ms Holland appeals that ruling.

The pre-trial ruling

[11] Overall Judge Butler considered it was unnecessary for the Detective Sergeant to obtain a separate search warrant for the cellphone. Providing the initial s 20 warrantless search was lawful the police examination of the cellphone and its contents

⁶ 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 the police 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 were controlled drugs in the vehicle;⁹ and

(b) to suspect an offence in respect of the controlled drug had been, was being, or was about to be committed in the vehicle;¹⁰ and

(c) to believe the evidential material relating to the suspected offence would be destroyed if the search was not carried out immediately.¹¹

[13] Judge Butler was convinced a butane burner has a niche role in methamphetamine consumption. The presence of the butane burner coupled with Detective Sergeant Gibson’s knowledge of Ms Holland’s and her associate’s drug history meant the reasonable grounds threshold in s 20 had been met. The Judge regarded the discovery of the butane torch as comparable to Holdem v R.¹² There the police executed a warrantless search immediately following discovery of a set of digital scales. The Court of Appeal held that once the scales were discovered in the backpack and the police officer formed the view the backpack may have related to drug use the officer was entitled to complete the search of the contents without a warrant under s 20 of the Search and Surveillance Act:¹³

In the absence of any cross-examination, we accept he then had reasonable grounds for believing that it would not have been practicable to obtain a warrant, there was a controlled drug in the vehicle or an offence against the Misuse of Drugs Act had been committed in respect of [a] controlled drug, and, if the search had not been carried out immediately, relevant evidential material 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 reasonable grounds to believe it is not practicable to obtain a warrant, the Judge said a related consideration is that the officer might have reasonable grounds to believe evidential material will be compromised if the search is not undertaken immediately. The police officers had seen that Ms Holland swapped seats, “arguably in an attempt to misdirect them”, and the Judge considered the officers would have been especially conscious of attempts to side-track their inquiries. Regarding it as necessary to consider the practicalities of policing the Judge concluded the impracticability of obtaining a warrant was linked to police concerns around safeguarding evidence.¹⁴

[15] The Judge rejected the defence submission that a further warrant was needed for the messages to be taken as evidence. Citing R v Paraha, the Judge determined that where a cellphone has been seized as evidence pursuant to a lawful search no further warrant is necessary to examine its contents.¹⁵ Section 110(h) of the Act authorised the search of the contents of the phone.

The appeal

[16] An appeal against conviction is as of right.¹⁶ Ms Holland, however, appeals her conviction following entry of a guilty plea. No submissions were addressed to me on this point.

[17] Section 232(4) of the Criminal Procedure Act 2011 expressly contemplates appeals following guilty pleas although only in exceptional circumstances will an appeal against conviction be entertained following a guilty plea.¹⁷ Such an appeal may be 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 induced by a ruling which embodied a wrong decision on a question of law.¹⁸ As no submissions have addressed this legal point I do not know the reasons why, following Judge Butler’s admissibility ruling, Ms Holland vacated her not guilty plea and entered

¹⁴ 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] NZCA 67; [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 not have been entered if, at the time it was entered, Ms Holland and her counsel had the benefit of the District Court Judge’s reasons for his ruling. In other words I have proceeded on the basis there is a sufficient nexus between the delivery of the Judge’s reasons and the effective change of plea represented by the filing of the appeal just over a fortnight later.¹⁹ This is a generous construction of the principle to Ms Holland’s benefit.

[19] Turning to the substance of the challenge, Ms Holland appeals on the grounds the Judge erred in:

(a) finding the police had reasonable grounds to believe it was not practicable to obtain a warrant before invoking the search power under s 20 of the Act;

(b) finding s 110(h) of the Act applied to the search of Ms Holland’s cellphone; and

(c) finding the extensive search of Ms Holland’s cellphone was reasonable and lawful in any event.

The statutory search powers

[20] The relevant search powers are ss 20 and 110 of the Search and Surveillance Act:

20. Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences

A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—

(a) to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—

(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or

¹⁹ At [24], by analogy.

(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or

(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or

(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and

(b) to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and

(c) to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.

110 Search powers

Every search power authorises the person exercising it—

...

(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:

Practicability of obtaining a warrant

Submissions

[21] The appellant does not dispute the existence of reasonable grounds for believing in the likely presence of drugs. Rather, Mr Preston’s point concerned the sequence in which the Judge addressed the relevant questions. Mr Preston submitted the 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 the reasonableness of belief in the presence of drugs in the car before considering the issue of the practicability of obtaining a warrant, led the Judge into error because “little or no consideration was afforded to the practicability of obtaining a warrant”.

[22] Mr Preston submitted the officer’s decision to undertake the warrantless search was premature given Ms Holland’s statement that her bag, inside the car, contained
drugs and a methamphetamine pipe. That revelation undercut any suggestion she intended to destroy or conceal evidence.

[23] Mr Preston also submitted the Judge failed to consider defence submissions relating to other powers available under the Act, in particular, the ability to apply for search warrants by telephone.

[24] For the respondent Ms De Silva submitted the Judge specifically addressed the practicability issue and made a reasoned decision on the point. It was open to the Judge to conclude there was a real risk the evidence would be interfered with or destroyed if a warrant had been sought.

Assessment

[25] I see little merit in the argument that the Judge erred by failing to address as the first issue the practicability of obtaining a warrant. The question whether it is practicable to obtain a warrant, does not sensibly arise unless the need to search is established.

[26] The reality is that police officers are unlikely to turn their minds to the practicability of obtaining a warrant under s 20 if they have not first formed a view that there are grounds for a search and that it should be carried out immediately. Until that view is formed the question whether it is practicable to obtain a warrant is largely theoretical. I am unable to agree that the order in which the Judge analysed the issues led him into error.

[27] I turn to the substance of the Judge’s analysis. It is well settled that a police officer is not bound to obtain a warrant every time he or she has sufficient information to justify the issue of a warrant. The improper constraints of such an approach on police investigation work have been long recognised.²⁰ When deciding whether grounds exist for a warrantless search the courts must have regard to all the circumstances of the case “and in particular, to the practicalities of policing”.²¹ Since

20. For example R v Smith [1996] NZCA 22; (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 of which judges are “exhorted” to have regard.²²

[28] Mr Preston made the point that R v Williams and R v Hughes pre-date the Search and Surveillance Act and have limited relevance because that Act conferred additional powers designed to address the very issues with which the Court of Appeal decisions were concerned.

[29] I do not regard the Search and Surveillance Act as having the effect which Mr Preston suggests. The Act did not diminish, in any respect, the relevance of the principle that the practicalities of policing may very well impact on the justification for a warrantless search. Judges must continue to have regard to the practicalities of policing when considering whether or not a constable has reasonable grounds to believe it is not practicable to obtain a warrant. Since that enactment numerous Court of Appeal decisions have recognised the practicalities of policing and the regard which judges must have for this consideration when assessing the basis for invoking the warrantless search power.²³

[30] Nevertheless, while regard must be had to this aspect of police work an evidential basis is required for an assertion that the practicalities of policing made it impracticable to obtain a warrant or contributed to the impracticability of obtaining a warrant.²⁴

[31] In this case, at the point when Detective Sergeant Gibson invoked the warrantless search power, Ms Holland was not under arrest. Detective Sergeant Gibson was unaware of the information Ms Holland had volunteered to Constable Defersha — that there was a methamphetamine pipe and a couple of “tinnies” in her handbag 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 to destroy 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 risk evidential material may be disposed of or removed. The warrantless power is not confined to emergencies. Nor do the police have to go so far as to show the drugs which might be located in a search would probably be lost if time were taken to obtain a warrant.²⁵

[33] Judge Butler accepted Detective Sergeant Gibson’s evidence that he invoked the warrantless search power before Ms Holland volunteered having cannabis and a methamphetamine 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 lawful means by which she could be detained. She and her associate were free to go and in the vehicle. The Judge was correct to conclude that “[i]n those circumstances, the need 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 for the officer to obtain a separate search warrant in regard to the cellphone providing the warrantless search was lawful. If the warrantless search was lawful the search of the cellphone was authorised by s 110(h).²⁷

[36] Ms Holland’s position on appeal is that s 110(h) did not apply to the warrantless search as s 110(h) only permits a search at the scene whereas her cellphone was searched at the station. Mr Preston submitted that s 125 was the appropriate section by 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 person exercising 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 computer system or other data storage device, that the person being searched is carrying or that is in the person’s physical possession or immediate control, if any intangible material that is the subject of the search may be in that computer system or other device;

[37] Mr Preston’s primary points were that:

(a) In the District Court the Police placed reliance on s 125 as the applicable provision authorising the search of the cellphone. This submission was made by the Police in the course of the District Court hearing. Consequently the point was not addressed in defence counsel’s written submissions.

(b) The Judge erred in his view of s 110(h) being relevant and failed, as a consequence, to consider the lawfulness of the search by reference to s 125.

(c) As the cellphone could not be searched incidentally to the warrantless search, a warrant for the further investigation of the cellphone should have been obtained.

[38] Ms De Silva submitted the Judge was correct in applying s 110 of the Act rather than s 125 as s 125 applies to the search of a person. A plain reading of s 110 does not require the search of the phone to be carried out in the vehicle from which it was seized.

Assessment

[39] This ground of appeal proceeds on a misconception of s 110(h). The authorisations in s 110 are incidental to a search power. A search power under the Act means every search warrant and “every power ... to enter and search, or enter and inspect or examine (without warrant) any place, vehicle, or other thing or to search a person.”²⁸

²⁸ 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 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:

[41] The words “located (in whole or in part) at the place” plainly relate to the location of the device not the place at which the device is to be searched. Where a device has been located at the place, vehicle or other thing searched, then reasonable measures may be used to access the device. Section 110(h) does not expressly or impliedly require the accessing of a computer system or other storage device to take place in the vehicle or other place where the device was located. One only has to consider the ramifications of such an argument to appreciate it is untenable.

[42] Section 125 is inapplicable to the search of the vehicle. Section 125 is confined to powers to search a person. The Judge adopted the correct approach in assessing the lawfulness of the examination of the cellphone by reference to ss 20 and 110(h).

[43] This ground of appeal does not succeed.

Reasonableness of the search

Submissions

[44] This ground of appeal challenges the reasonableness of the extent of the search of Ms Holland’s cellphone. Mr Preston submitted the grounds advanced by the constable for his examination of the phone were insufficient and the search amounted to little more than a “fishing expedition”. Specifically, “the constable’s contention that he was looking for evidence of the appellant’s intention with regard to the items cannot have been founded on a reasonable belief of drug dealing”.

[45] Ms De Silva submitted on the evidence there was a proper basis for the search and a pressing need to do so.

Analysis

[46] What is unlawful is not necessarily unreasonable. So too, that which is lawful is not necessarily reasonable.²⁹ The starting point is the right declared by s 21 New Zealand Bill of Rights Act 1990 to be secure against unreasonable search or seizure whether of the person or property. Any search is an intrusion on freedom or privacy but searches of computers and phones raise special privacy concerns because of 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 of the personal nature of the information likely to be stored on a cellphone: “[t]hese are interests of a kind that s 21 of the Bill of Rights Act was intended to protect from unreasonable intrusion.”³¹

[47] It was put to Detective Sergeant Gibson in cross-examination that his search of Ms Holland’s phone was speculative. Detective Sergeant Gibson strongly resisted the proposition. His evidence was that he believed Ms Holland might be dealing because, in his experience, those who use methamphetamine commonly sell the drug to support their habit or use. His search was “to find the intention behind the possession”. He believed his authority to search the phone derived from the s 20 search and the fact Ms Holland had been found in possession of a small quantity of methamphetamine. The Detective Sergeant was clear in his evidence that finding a small quantity of drugs would not entitle him to search through the phone “to look at whatever information” it contained but only evidence relating to “that drug” located on Ms Holland. Importantly, to my mind, Detective Sergeant Gibson did not check or open any other app on Ms Holland’s cellphone. That must mean he did not look through contact details or other such personal information. He did check the text messages. That was consistent with checking the messages on the Facebook app.

[48] I consider the Detective Sergeant’s focus on communications with third parties did 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 with methamphetamine; she was in possession of the drug and a methamphetamine pipe and she was with an associate who had a methamphetamine pipe. In Detective Sergeant Gibson’s experience it was likely that Ms Holland was engaged in selling or supplying methamphetamine. As the Court of Appeal reasoned in Neho v R the data on the cellphone could reasonably be anticipated as providing potential evidence of offending.³²

[50] In Hoete v R, the Court of Appeal accepted a cellphone might well contain evidence relevant to serious drug charges, it being “well-known that [a wallet, tick book, notebook or cellphone] may contain notes of methamphetamine sales and, in the case of a cellphone, incriminating text messages or records of incriminating phone calls ... 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 search was not unreasonable. The evidence of communications in Ms Holland’s Facebook Messenger app which gave rise to the charge of offering to supply methamphetamine was not improperly obtained. The Judge was correct to rule the evidence was admissible.

[52] In light of my conclusions on each of the grounds of appeal it is not necessary to address admissibility under s 30 of the Evidence Act 2006.

Result

[53] For the foregoing reasons the appeal is dismissed.





Karen Clark J

Solicitors:

Public Defence Service, Wellington for Appellant Crown Solicitor, Wellington for Respondent

³² R v Neho [2017] NZCA 324 at [17].

³³ Hoete v R [2013] NZCA 432, (2013) 26 CRNZ 429 at [20].