R v FUANGFOO - [2014] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FUANGFOO
[2014] SADC 148
Ruling of His Honour Judge Rice
3 July 2014
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
Search of the accused's car undertaken by a police officer - drugs and drug paraphernalia were found - application by accused to exclude evidence obtained as the result of the search on the basis that the prosecution was unable to show that the officer did have the necessary reasonable suspicion to conduct the search - Court unable to find that the items upon which the reasonable suspicion was said to be based, were present.
Application granted - evidence excluded - not an appropriate case for the exercise of the discretion.
Coleman v Zanker (1991) 58 SASR 7; R v Nguyen (2013) 117 SASR 432, considered.

R v FUANGFOO
[2014] SADC 148
Introduction

This is an application to exclude the evidence of the search of the car being driven by the accused on 28 August 2012. On the prosecution case, the important finding from the search was a black sunglasses case found under the driver’s seat. The case allegedly contained a quantity of methylamphetamine, some press-sealed plastic bags, a lighter, a glass pipe and two cut-down slushy‑type straws.
The accused is charged with a number of drug related offences to most of which she has already pleaded guilty. As to the remaining counts (Counts 1 and 2 on the Information dated 25 November 2013) she has pleaded “not guilty” and applies to exclude evidence obtained as the result of the search of her car.
The material received by me upon a consideration of the application is limited to the oral evidence of the two detectives concerned and some documentary exhibits. The accused did not give evidence on the application.
In short, the application rests on the assertion that the searching police officer, Senior Constable Leonard, did not have reasonable cause to suspect that there was a substance or equipment present in the car that would be relevant to the commission of an offence against the Controlled Substances Act. The prosecution accepted that it was required to prove, on the balance of probabilities, that there were items and circumstances that gave rise to a genuine suspicion and that such suspicion was reasonably entertained by the officer. To put it in more conventional terms, the prosecution was required to prove that he had reasonable cause to suspect.
The evidence of the two police officers
First to give evidence was the senior officer, Detective Brevet Sergeant Winterfield. He gave evidence that, on the evening of 28 August 2012, Senior Constable Leonard accompanied him to an address of 9 Alvis Road, Croydon Park. Detective Brevet Sergeant Winterfield was proposing to speak with the accused concerning items found at a search on 22 March, 2012 at another address at Croydon Park. These items were a taser and a small quantity of fantasy. The accused had not been present at the time of the earlier search, but the items were found in a bedroom believed to have been occupied by her. Senior Constable Leonard had been involved in that search. The detective believed that the accused lived at the Alvis Road address.
When the officers arrived at the Alvis Road address, the accused was sitting in a car parked in the driveway. The car was parked in a position whereby the driver was adjacent to the front door of the house (Exhibit VD P1). It was a rental car with Victorian registration. It appeared as though the accused was just getting out of the car. The detective saw an unknown male in the entrance to the driveway. Apart from pacing backwards and forwards as if to be waiting for someone, the presence of the male seemed unremarkable.
The detective introduced himself to the accused, explained the purpose of the visit and both sat on the front porch of the premises. The detective spoke to her about the items and issued her with a drug diversion notice in respect of the small quantity of fantasy. Senior Constable Leonard was present to corroborate the detective in his speaking with the accused. As it happened, the interview itself was short and was captured on a video camera being held by the constable. Once the interview was concluded the filming stopped and the detective spent some 15-20 minutes filling out the drug diversion paperwork. It was during that time that the constable made certain observations of the inside of the car.
The time was about 10.00 p.m. The detective said there was no light coming from the inside of the house, it was dark and they used torchlight when walking about. The driver’s side door of the car remained open (T18).
Senior Constable Leonard said he had 10 years policing experience, six years of it in Australia. He had experience in investigating drug matters both here and in the United Kingdom.
Senior Constable Leonard acknowledged that he accompanied Detective Brevet Sergeant Winterfield on the evening of 28 August 2012 to interview the accused at 9 Alvis Road, Croydon Park. The only notes he had formed part of the exhibits log that was used once a General Search Warrant was executed and the house itself searched. Senior Constable Leonard was aware that the detective wanted to speak with the accused in relation to some outstanding drug matters. He was also aware that the accused had been previously arrested for drug offences.
Senior Constable Leonard also noticed the man pacing up and down near to the entrance to the driveway. He confirmed he held the camera to capture the interview and then stepped back and positioned himself to keep an eye on the senior officer, the car and the front of the house. He said it was dark and the front door of the car remained open. However, he said the internal light of the car was on and there was also some street light. He also believes that there was some light coming from the porch area. He said he glanced into the car to ensure that nobody else was inside.
From a position by the open driver’s door he said he saw bags and property and, more importantly, a cut-down slushy straw and a metallic spoon with some type of residue. The straw was of a type that one end was made in a spoon shape. He said he was able to see these items because the internal light of the car was on. He said those two items together were indicative of drug use, that is, for use prior to drug consumption. He said a spoon with residue would be significant but a slushy straw by itself would not.
At about that same time, he noticed it was a rental car. He said that was significant because drug users and drug dealers use rental vehicles to hamper police investigations. He said that based on what he had been told about the accused prior to attending that address, plus the straw and spoon, in combination with the accused being seen getting out of a hire car, he reasonably expected at that stage there may have been further evidence relative to the Controlled Substances Act (T31-32). He said he told the accused that he was going to search the vehicle pursuant to the Controlled Substances Act and proceeded to do so.
It was during that search that the items in the black sunglasses case were found under the driver’s seat, in the rear section of the driver’s footwell. The finding of those items was conveyed to Detective Brevet Sergeant Winterfield who then executed his General Search Warrant to search the inside of the house.
There is no challenge to the finding of the black sunglasses case and its contents. The defence challenge the presence of the spoon and slushy straw in the front console. They were not seized along with a large number of other exhibits from the house itself. They are not referred to in the exhibits list. There is no photograph of them as there are of all other exhibits. They are not shown in a video of the interior of the car. However, the video does show the console area to be covered by the many bags that were inside the car and were moved around in the searching process. Senior Constable Leonard said that drug paraphernalia in the console area would have been hidden from view if anybody else had searched.
Detective Brevet Sergeant Winterfield later undertook a search of the back of the car and said he would also had searched the front of the car to make sure nothing had been missed. He did not see any metal spoon or slushy straw in the console area. Other items were seized from the car but not those two items.
Apart from those matters it was challenged that there was sufficient light to be able to see the items concerned. Senior Constable Leonard said he used his torch only after he had formed the suspicion. It would not have been lawful to search using his torch prior to the formation of the suspicion: Coleman v Zanker[1]. The video itself shows the area where the car was parked and the interior of the car to be dark. The video shows items in the car, including the black sunglasses case, but a torch was being used to illuminate the area. It is difficult to tell from the video what would have been able to be seen without the aid of a torch.
[1] (1991) 58 SASR 7
Senior Constable Leonard said that part of the basis for the formation of his suspicion was the presence of the pacing man at the opening to the driveway. It was only during his evidence that he used that man as part of his suspicion. Prior to giving evidence, he had not been of that opinion about the man.
Senior Constable Leonard said he had forgotten to include the metal spoon and slushy straw in the exhibit log. He acknowledged they had not been seized but said they were actually there.
Further, prior to giving evidence, Senior Constable Leonard had not relied upon his discussions with Detective Brevet Sergeant Winterfield about the defendant’s prior drugs involvement as part of his suspicion. He said he would not normally include conversations between colleagues. Senior Constable Leonard had also added the use of a hire car as part of the basis of his suspicion.
Discussion
The prerequisites for the exercise of the power to search a vehicle were re‑stated in R v Nguyen[2], particularly as to what is involved in the concept of “reasonable suspicion”.
[2] (2013) 117 SASR 432 at paras 21-22.
I have already noted that the accused did not give evidence. However, there are, in my view, a number of unsatisfactory aspects of the evidence said to form the basis of the suspicion on the occasion in question, that is, the evening of 28 August 2012. The genesis of the suspicion was the presence of the shortened slushy straw and metal spoon with what appeared to be sediment around the inside rim. Despite what the officer said, I am unable to find that they were present in the console area as he said. There is no record of their presence in the exhibit log, which formed the officer’s notes, nor do they show up on the video of the interior of the car. Apart from that, the lighting was obviously very poor and it would have been very difficult to see anything inside the car without artificial light. Furthermore, Detective Brevet Sergeant Winterfield also searched the interior of the car, including the front of the car (including console) and did not observe any such items.
As for the other aspects said to form the basis of the suspicion, I entertain doubts whether they were factored in at the time. Both the fact of it being a rental car and a conversation about the defendant with his senior colleague were highly relevant to the formation of a reasonable suspicion. The presence of the pacing man may have been relevant but his inclusion seems to have been an afterthought.
I am in the position of not being able to find that the slushy straw and spoon were there. On that basis, I cannot find the basis for a reasonable suspicion to have existed. I add this. If I was in a position to make that finding, the use of a rental car and the conversation with his colleague about the accused together would have been more than adequate to form the basis for such a suspicion. The car and the conversation, without more, were not enough for a reasonable suspicion.
The conclusion to which I have come is that it was an unlawful search. The question then arises about the exercise of my discretion. In view of the fact that I am unable to make the necessary factual findings that supposedly brought about the formation of a reasonable suspicion, I decline to exercise my discretion in favour of the admission of the evidence.
The application is successful. The evidence is excluded.