Drugs

Question 1

What is Section 20 under the Search and Surveillance Act 2012?

Answer 1

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

Question 2

Explain powers of a Constable under Section 20 of the Search and Surveillance Act 2012?

Answer 2

A Constable may ENTER and SEARCH without a warrant if he or she has REASONABLE GROUNDS -

(a) TO BELIEVE THAT it is not practicable to obtain a warrant…
(b) TO SUSPECT THAT in or on the place or vehicle …
(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.

Question 3

What is Section 21 under the Search and Surveillance Act 2012?

Answer 3

Warrantless searches of people found in or on place or vehicles.

Question 4

Explain powers of a Constable under Section 21 of the Search and Surveillance Act 2012?

Answer 4

A Constable conducting a search of a place or vehicle under Section 20 may, without a warrant, search ANY person found in or on the place or vehicle.

Question 5

What is Section 22 under the Search and Surveillance Act 2012?

Answer 5

Warrantless power to search for controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975.

Question 6

Explain powers of a Constable under Section 22 of the Search and Surveillance Act 2012?

Answer 6

(1) A Constable may, in the circumstances set out in Subsection (2), search a person without a warrant.

(2) The circumstances are that the Constable has REASONABLE GROUNDS -
(a) TO BELIEVE that the person is in possession of - …
(b) TO SUSPECT THAT an offence against the Misuse of Drugs Act 1975 HAS BEEN COMMITTED, IS BEING COMMITTED, or IS ABOUT TO BE COMMITTED …

Question 7

Explain ‘Warrantless searches of people in relation to drugs’ for “PEOPLE FOUND IN OR ON PLACES OR VEHICLES (S. 20 and S. 21)”?

Answer 7

If you are conducting a search of a place or vehicle under Section 20 (relates to some Misuse of Drugs offences - see the Warrantless powers to search places, vehicles and things chapter) - you may without a warrant, search any person found in or on the place or vehicle (S. 21).

Question 8

Explain WARRANTLESS SEARCHES OF PEOPLE SUSPECTED OF DRUG OFFENCES (S. 22)?

Answer 8

• You may search a person without a warrant if you have reasonable grounds to:

. BELIEVE a person is in possession of:
* a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of the Misuse of Drugs Act 1975

Or

• a precursor substance specified or described in Part 3 of Schedule 4,

And

. SUSPECT that an offence against the Misuse of Drugs Act 1975 has been, is being, or is about to be committed in respect of that controlled drug or precursor substance.

Question 9

What to cover when seeking APPROVAL FOR DRUG RELATED SEARCHES?

Answer 9

Unless impracticable in the circumstances, obtain approval from a Sergeant or above before exercising this Warrantless search power.

Question 10

What is an internal search under Section 23?

Answer 10

An internal search is an internal examination of any part of the person’s body by means of:
. An x-ray machine or other similar device, or
. A manual or visual examination (whether or not facilitated by any instrument or device) through any body orifice.

Question 11

What is NOT an internal search under Section 87?

Answer 11

• A Constable, authorised officer or searcher may conduct a visual examination (whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, and ears, but MUST NOT INSERT any instrument, device, or thing into any of those orifices.
• A visual examination in these circumstances is not an “internal search” and is permitted as part of a rub-down search.

Question 12

Who may conduct an internal search?

Answer 12

An internal search MUST be conducted by a REGISTERED MEDICAL PRACTITIONER.

Question 13

When can an internal search be required?

Answer 13

A Constable can only require a person to permit a medical practitioner to conduct an internal examination in circumstances listed in Section 23 of the Act. They relate to people under arrest for some offences against the Misuse of Drugs Act 1975 and when the Constable has REASONABLE GROUNDS TO BELIEVE the person has certain property secreted within their body.

Question 14

Caselaw: Hoete v R (2013) CRNZ 429: Reasonable grounds for belief, formerly S. 18(2) MDA, now S. 20 Search and Surveillance Act 2012. Provide the facts.

Answer 14

• Following receipt of a 111 call from a petrol station attendant in Karaka in December 2011, the Police attended and found Mr MacKenzie in his parked motor vehicle.
• Acting on the 111 call, further information provided by the attendant at the scene, notification of Mackenzie’s previous involvement with methamphetamine, the location of his vehicle (behind the petrol station) and observation of him, the Police conducted a warrantless search of the vehicle under S. 18(2) of the Misuse of Drugs Act 1975.
• The search of the car revealed, along with methamphetamine, related paraphernalia, and precursor chemicals, a search of Mackenzie’s person also revealed a camera memory card.
• Subsequently, in January 2012, the memory card was examined by Police using a computer. It contained images of methamphetamine manufacturing and information that led Police to identify Ms Hoete’s house as the location of that activity.
• As a result of the information received by Police from the search of Mackenzie’s vehicle and the examination of the memory card, the appellants were charged with manufacturing methamphetamine and various possession charges.
• The Warrantless search of the vehicle was considered in this case, along with the admissibility of evidence obtained from a total of three searches.

Question 15

Caselaw: Hoete v R (2013) CRNZ 429: Reasonable grounds for belief, formerly S. 18(2) MDA, now S. 20 Search and Surveillance Act 2012. What was “HELD”?

Answer 15

• Hoete failed to establish sufficient grounds to support appeals; POLICE HAD GROUNDS TO CONDUCT WARRANTLESS SEARCH UNDER S. 18(2) MDA.
• Police had no reasonable basis to examine and subsequently seize the memory card; the District Court therefore erred in not finding that evidence improperly obtained, however the Court correctly declared evidence admissible at trial regardless that improperly obtained as probative value outweighed impropriety.

Question 16

Caselaw: Hoete v R (2013) CRNZ 429: Reasonable grounds for belief, formerly S. 18(2) MDA, now S. 20 Search and Surveillance Act 2012. Result?

Answer 16

Appeal dismissed.

Question 17

Caselaw: R v Merrett CA280/05, 3 March 2006: Reasonable grounds for belief, formerly S. 18(2) MDA, now S. 20 Search and Surveillance Act 2012. What are the FACTS?

Answer 17

• This case involved an unsuccessful appeal by M against ruling that evidence found during search admissible; Police searched M’s home without warrant pursuant to S. 18(2) Misuse of Drugs Act 1975 and found items which led them to charge M with manufacturing methamphetamine and possession of precursor substances; M argued two main points:
  (a) Police did not have reasonable grounds for believing he was person referred to in tick list of known drug dealer;
  (b) also unreasonable to believe package containing drugs would be at M’s home given five-day delay since it’s delivery to premises of M’s father and M’s father’s inability to say when package removed from his home.
• While the Court found that there were reasonable grounds for (a) above, there were not reasonable grounds for believing that drugs would be found at the appellants home.

Question 18

Caselaw: R v Merrett CA280/05, 3 March 2006: Reasonable grounds for belief, formerly S. 18(2) MDA, now S. 20 Search and Surveillance Act 2012. HELD?

Answer 18

• Search unreasonable even though Police had genuine subjective belief in its legitimacy and were required to act quickly.
• This case also concerned the admission of evidence gathered, and given the circumstances in which Police required to make decision; exclusion of evidence would be disproportionate to breach of right involved; appeal dismissed.

Question 19

Caselaw: Hill v Attorney-General (1990) 6 CRNZ 219 (CA): Reasonable grounds for belief, formerly S. 18(2) MDA, now S. 20 Search and Surveillance Act 2012. What were the FACTS?

Answer 19

• A taxi owned by Hill was stopped by Traffic officers shortly after midnight.
• The Police were called and searched the taxi without warrant under the Misuse of Drugs Act.
• Hill later began civil proceedings on a variety of grounds, but was unsuccessful. In the course of his appeal to the Court of Appeal the lawfulness of the search for drugs was considered by the Court.

Question 20

Caselaw: Hill v Attorney-General (1990) 6 CRNZ 219 (CA): Reasonable grounds for belief, formerly S. 18(2) MDA, now S. 20 Search and Surveillance Act 2012. Held:

Answer 20

• At the relevant time the relevant part of S. 18(2) of the Misuse of Drugs Act provided as follows:
  “(2) Where any member of the Police has reasonable ground for believing that there is in or on any … vehicle … any controlled drug … he … may ENTER and SEARCH the … vehicle and any person found therein …
• It is not every controlled drug to which the subsection may apply.
• Parliament has deliberately excluded any application of S. 18(2) to the Class B drugs in Parts II and III of the Second Schedule and of Class C drugs in Parts II to VI of the Third Schedule.
• The right to search without warrant is triggered only when there is an objective belief that one of the drugs expressly included in the First Schedule or in Part I of the other Schedules is present.
• In reply to a question in cross-examination, the Sergeant who carried out the search said that he did not know what drug he was looking for and this it did not matter as he had good cause to suspect drugs were in the car.

Question 21

Caselaw: Hill v Attorney-General (1990) 6 CRNZ 219 (CA): Reasonable grounds for belief, formerly S. 18(2) MDA, now S. 20 Search and Surveillance Act 2012. Comments made?

Answer 21

“Reasonable ground for belief” will usually be a two step process:
1. First, are there reasonable grounds for believing a controlled drug is in the house, vehicle, etc, in respect of which an offence against the Act has been or is being committed;
And
2. Second, are there reasonable grounds for believing the drug involved is one of those specified.

Question 22

Caselaw: Collins v Police [2007] BCL 56 Search: demeanor, appearance and “reasonable grounds to believe”. Background:

Answer 22

• This was an appeal against conviction in the District Court on two charges of possessing Class A drugs (methamphetamine and cocaine) contrary to S. 7(1)(a) of the Misuse of Drugs Act 1975.
• The Prosecutions arose following the search of a vehicle in downtown Auckland in the early hours of a Sunday morning. The issue was whether Police had proper grounds for conducting the search under S. 18(2) of the Misuse of Drugs Act 1975, that is; did the searchers have reasonable grounds to believe there were drugs in the vehicle. (See now S. 20 Search and Surveillance Act 2012)

Question 23

Caselaw: Collins v Police [2007] BCL 56 Search: demeanor, appearance and “reasonable grounds to believe”. The decision:

Answer 23

• The High Court found that evidence of demeanor and appearance, whilst perhaps warranting strong grounds for suspicion and, seemingly, an actual belief in the consumption by the officers concerned, did not provide Police reasonable grounds for the belief under the Act.
• The Court found the problem with accepting the lawfulness of the search in these circumstances was the symptoms were also symptoms that could be exhibited by persons who have consumed drugs lawfully obtained and that nervousness can be experienced by innocent people being interviewed by the Police in public.
• The conviction was quashed.

Question 24

Caselaw: R v T (1996) 3 HRNZ 77 (CA) internal search, see now S. 124 Search and Surveillance Act 2012 (formerly S. 18A of the Misuse of Drugs Act 1975). Facts:

Answer 24

• Police executed a search warrant at certain premises. After the Police had gained entry it appeared to the officers that the appellant, who was inside, had something concealed I her mouth. The appellant was restrained and told to spit the object out. She refused, and made a further attempt to swallow the item.
• The appellant was then laid face-first on a bed and again was told to spit out the object. Eventually she spat out a large roll of glad wrap which was later found to contain 17 morphine sulphate tablets.

Question 25

Caselaw: R v T (1996) 3 HRNZ 77 (CA) internal search, see now S. 124 Search and Surveillance Act 2012 (formerly S. 18A of the Misuse of Drugs Act 1975). Appeal.

Answer 25

• The appellant was charged with possession for supply of a Class B controlled drug.
• She argued on appeal that the package was obtained by unlawful means amounting to unreasonable search and seizure in breach of her rights under Section 21 of the New Zealand Bill of Rights Act.
• The unlawfulness relied upon was contravention of what is now Section 124 Search and Surveillance Act 2012.

Question 26

Caselaw: R v T (1996) 3 HRNZ 77 (CA) internal search, see now S. 124 Search and Surveillance Act 2012 (formerly S. 18A of the Misuse of Drugs Act 1975). Decision.

Answer 26

• The Court of Appeal confirmed the finding in the District Court that there had not been an internal search within the ambit of the section.

Question 27

Caselaw: R v T (1996) 3 HRNZ 77 (CA) internal search, see now S. 124 Search and Surveillance Act 2012 (formerly S. 18A of the Misuse of Drugs Act 1975). Comments made.

Answer 27

• This decision is consistent with previous decisions involving mere observations by Police rather than searches per se and accords with common sense.
• Actions following an observation, however, should not go beyond what is reasonably necessary to carry out any authorised search, and should never put the suspect in any form of physical danger.

Question 28

Caselaw: R v Roulston [1998] 2 NZLR 468 - internal search, see now S. 124 Search and Surveillance Act 2012 (formerly S. 18A of the Misuse of Drugs Act 1975). Background.

Answer 28

• The appellant was strip-searched by Police pursuant to the Misuse of Drugs Act 1975. In the course of removing his underpants a small package subsequently found to contain restricted drugs was seen in the crutch of his underpants.
• The appellant placed the package in his mouth. It appeared to the Constable that the appellant was attempting to swallow it.
• A struggle ensued during which Police officers applied force to the appellants neck and head area, closing his nostrils and depressing his throat.
• The appellant argued that the evidence should be inadmissible. He argued that the actions of the Police:
  . Amounted to at least an attempt to conduct an internal search in contravention of the section;
  . Were an unreasonable search in breach of Section 21 of the New Zealand Bill of Rights Act 1990; and
  . Amounted to cruel and degrading treatment contrary to Section 9 and Section 23(5) of the New Zealand Bill of Rights Act 1990.

Question 29

Caselaw: R v Roulston [1998] 2 NZLR 468 - internal search, see now S. 124 Search and Surveillance Act 2012 (formerly S. 18A of the Misuse of Drugs Act 1975). HELD.

Answer 29

(1) An internal search was not completed as neither of the Constables put their fingers or any instrument into the appellants mouth.

(2) One of the officers concerns was fear for the appellants safety should he be permitted to swallow the package. In seeking to prevent him doing so they used no more force than reasonably necessary. In the context, it could not be said that the search or seizure of the drug was unreasonable.
- In reaching this conclusion regard could be had to Section 41 of the Crimes Act 1961, the plain meaning of which was to provide persons with justification in using such force as is reasonably necessary in circumstances where that force is required to prevent a suicide or the commission of any offence likely to cause immediate and serious injury to the person or property of anyone.

Appeal dismissed.

Question 30

Caselaw: Sneller v Police [2007] NZAR 405 (High Court) obstruction, internal search, see now Section 124 Search and Surveillance Act 2012 (formerly S. 18A of the Misuse of Drugs Act 1975). Facts:

Answer 30

In this case S appealed successfully from conviction for wilfully obstructing a Constable acting in the execution of powers under the Misuse of Drugs Act 1975, when he refused to spit something out of his mouth when requested, and a resulting lengthy physical struggle failed to overcome his resistance.

Question 31

Caselaw: Sneller v Police [2007] NZAR 405 (High Court) obstruction, internal search, see now Section 124 Search and Surveillance Act 2012 (formerly S. 18A of the Misuse of Drugs Act 1975). Held:

Answer 31

• S was entitled to decline to allow Police to undertake internal search of his mouth and no specific power in MDA entitling Police to require S to spit out contents of his mouth.
• S was not obstructing Police when he passively declined to spit out item.
• In the circumstances, Police case did not fail due to failure to produce actual warrant because S’s counsel did not challenge Police witnesses as to whether warrant existed and what were its terms; appeal allowed.