DRUGS DRUGS DRUGS Flashcards
Drugs (S and S Act 2012)
Under Section 20 (Warrantless search of places and vehicles) a Constable may enter and search a place or vehicle W/W if has RG (for what ?)
To believe there is; - a controlled drug under: - Schedule 1 - Part 1, Schedule 2 - Part 1, Schedule 3 Or precursor substance in Part 3, Schedule 4 AND - Suspect offence against MODA - Believe if entry not immediate will CADD
Drugs (S and S Act 2012)
Under Section 21, when conducting a Warrantless search of a place or vehicle) a Constable may do what ?
Search W/W any person found in or on the place or vehicle
Drugs (S and S Act 2012)
Under Section 22, what can a constable do when he finds a person in (public place) and believes they have drugs in their possession
May Search if constable has reasonable grounds;
- believes person in possession of controlled drug
- Schedule 1
- Part 1, Schedule 2
- Part 1, Schedule 3
Or precursor substance in Part 3, Schedule 4
AND
- Suspect offence against MODA
Drugs (S and S Act 2012)
Under Section 124, Internal searches, can they be enforced ?
- An Enforcement Officer must not conduct internal search of person, except with persons consent their mouth
- Constable must not require another person to conduct internal search of a person, except as provided in section 23, which relates to internal searches in some circumstances of people under arrest for MODA offences
Drugs (S and S Act 2012)
What is an internal search ?
Is an internal examination of any part of a person’s body by means of;
- an x-ray machine or similar device
- manual or visual examination through any body orifice
Drugs (S and S Act 2012)
What is NOT an internal search ?
- Constable, Authorised officer or searcher MAY conduct a visual examination, whether facilitated by instrument designed to illuminate or magnify;
-mouth
-nose
-ears
But must NOT insert into those orifices
Drugs (S and S Act 2012)
Who may conduct an internal search ?
A registered medical practitioner
Drugs (S and S Act 2012)
When can an internal search be required ?
Constable can only require person to permit a medical practitioner to conduct an internal, under Sect. 23. Relates to people under arrest for offences against MODA when Constable has RG to believe person has drug secreted within their body
Drugs (S and S Act 2012)
Case Law - HOETE v R, what was held in relation to “lack of RG for belief” there were drugs in the vehicle of Mr Mackenzie and property of Ms HOETE
- The well-established question of belief is to be “determined objectively”
- such belief may be based on cumulative effect of multiple factors
- belief must be held by Constable or Supervisor who ordered the search
Drugs (S and S Act 2012)
Case Law - R v MERRETT, what was held in relation to “belief there were reasonable grounds to search” Merrett’s home ?
Essentially a timing issue
- search unreasonable though police have genuine subjective belief in its legitimacy
- exclusion of evidence would be disproportionate to breach of right involved
Drugs (S and S Act 2012)
Case Law - Hill v Attorney General, what was held in relation to the “lawfulness of the search” … (Sergeant said he did not know what drug he was searching for)
- The right to search without warrant is triggered only when there is an objective belief that drugs specified in Schedules are present
RG is two step process
- Are there RG for believing controlled drug is in house or vehicle
- Are there RG for believing drugs are those specified in act
Ultimately the Sergeant in this case did not turn his mind to this issue
Drugs (S and S Act 2012)
Case Law - Collins v Police, what was held in relation to “RG for belief drugs in car, based on evidence of persons demeanour and appearance ?
- Evidence of demeanour and appearance, whilst perhaps strong grounds for suspicion, did not provide police with RG for belief and unlikely to justify search under Act
- persons appearance and demeanour may be consistent with nervousness and having consumed drugs lawfully
Drugs (S and S Act 2012)
Case Law - R v T, what was held in relation to an appeal against internal search, stating that the package was obtained unlawfully, amounting to unreasonable search and seizure and a breach of her NZ BOR (Package concealed in her mouth, restrained)
- Court of Appeal confirmed “no internal search performed”
- Appellant was restrained to prevent her swallowing the package, therefore conduct had not amounted to an internal examination
- A manual or visual examination, does not prohibit viewing what’s normally seen when observing the face or mouth when open for speech
Drugs (S and S Act 2012)
Case Law - R v ROULSTON, what was held in relation to appeal against internal search after “strip search” revealed package in underwear, appellant tried to swallow package, officers applied force to head and neck and closed nostrils, package ejected from mouth
- Court found on balance of probabilities primary purpose of officers action was to induce appellant to object package, BUT coupled with preventing him from ingesting drugs, putting his life at risk and preserving evidence
HELD
- No internal search was completed
- Force used was , justified and necessary in the circumstances
- Justified Section 41, prevent suicide or serious injury to person or property
Drugs (S and S Act 2012)
Case Law - Sneller v Police, what was held in relation to “S” appeal from conviction for wilfully obstructing constable acting in the execution of powers under MODA, when refusing to spit out something in this mouth
- Internal search powers are limited
- Requires persons consent
- Forcing a mouth open constitutes internal search
- Passive resistance is not obstruction, therefore “S” had acted with lawful excuse
