Croton v Police
[2017] NZHC 422
•13 March 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-000131 [2017] NZHC 422
BETWEEN SAM JORDAN CROTON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 8 February 2017 Appearances:
P Watts for the Appellant
E J Henderson for the RespondentJudgment:
13 March 2017
JUDGMENT OF NATION J
[1] Mr Croton faces charges of being in possession of cannabis and being in possession of a utensil for consuming cannabis. The cannabis and a pipe were found in a car he was driving.
[2] On 29 June 2016, there was a hearing in the District Court in which Mr Croton challenged the admissibility of the evidence obtained from the search. In a judgment of 19 October 2016, the District Court Judge ruled the search was unlawful. He nevertheless admitted the evidence under s 30(2) of the Evidence Act
2006.
[3] Mr Croton has appealed against that judgment. Counsel for Mr Croton and the Police had both overlooked the fact that leave was required to appeal and both made submissions as to the merits of the appeal. Because there has been no
prejudice, leave to appeal is granted and I deal with the matter on the merits.
CROTON v POLICE [2017] NZHC 422 [13 March 2017]
The Judge’s decision
[4] The Judge said the primary challenge to the lawfulness of the appeal appeared to have been that, during the search, the Police had taken Mr Croton’s cell phone and it had been withheld from him in breach of the Land Transport Act 1998 (LTA) in a way which rendered the search unlawful. The Judge said he did not consider that the withholding of the cell phone affected the right to impound the vehicle or that the obtaining of evidence as to the cannabis and pipe resulted from the withholding of the cell phone.
[5] The Judge considered that the more significant issue related to the interplay between s 96 LTA and the Search and Surveillance Act 2012 (S & S Act). He called for submissions from the Police and counsel on that issue then gave his judgment.
[6] The Judge referred to the evidence as to how the vehicle had been stopped with the belief that the driver was a suspended driver:
(a) While Sergeant Hardee was speaking to Mr Croton in the back of the patrol car and Mr Croton was being given his rights before further questioning, Mr Croton asked the sergeant to retrieve his phone so that he could call his partner and tell her that he had been pulled over.
(b) Sergeant Bayne became aware of the vehicle stop and arrived on the scene a little later. Sergeant Bayne knew the stop related to a suspended driver. Sergeant Hardee informed Sergeant Bayne of his decision to impound the vehicle.
(c) Constable Van Dyk, acting on the instructions of Sergeant Bayne, then began searching the car to prepare an inventory of valuables before the tow truck arrived. Constable Van Dyk found the sunglasses case in the left foot-well. He opened the case to see whether there were sunglasses inside, instead finding a small glass pipe. The Judge found that Constable Van Dyk then had reasonable grounds to believe drugs were present and invoke his warrant of search powers under s 20 of the S & S Act.
(d) Mr Croton was then arrested by a Constable Wright. He was informed that a pipe had been found and that search powers under the S & S Act were being utilised. Mr Croton was given his rights and he acknowledged that he understood.
(e) Sergeant Hardee then served impound papers on Mr Croton, as required by s 96(2) LTA. Shortly after this, Constable Van Dyk located a small bag of cannabis under the passenger seat.
[7] The Judge said the Police accepted there was no evidence before the Court to show when (or if) the Police told Mr Croton his car was being seized nor was there any evidence to show when the Police took possession of the car keys.
[8] The Judge said that he did not consider the withholding of the cell phone rendered the search illegal, nor did it affect the right to impound the vehicle. He said, even if he had found that it did render the search unlawful, he would have not hesitated to admit the evidence under s 30(2) of the Evidence Act 2006. This was because, in his view, the alleged illegality was completely unrelated to the search, any infringement of privacy or property rights was minimal at best and technical at worst and there was no connection between the breach and the obtaining of the evidence which Mr Croton was seeking to exclude.
[9] The Judge noted the Police had invoked the search through the application of s 96 LTA. He set out the details of that section in full. He referred to the way the basis and purpose of a search had been described by White J in Holdem v R.1
[10] He noted that s 96 authorised both the seizing and the impounding of motor vehicles in certain circumstances, and searches being authorised once a vehicle was seized and impounded. He noted the LTA did not define the words “seize” or “impound”, and the S & S Act did not define what amounted to a seizure. He said, given the two terms had been used in the LTA, there must be different considerations
in respect of each.
1 Holdem v R [2014] NZCA 546 at [21]-[22].
[11] Referring to authority, the Judge held “seizure” invoked concepts of the state taking control of an object to the exclusion of the person in actual or legal possession of the item.2
[12] After referring to various dictionary definitions and their reference to certain authorities, he said that “impoundment” referred to the securing of the item or the authorisation of the securing of the item in some place essentially to prevent its removal. He said the issue of the statutory notice required as to the impounding of the vehicle was a step consequent upon the act of impounding.
[13] He concluded that the right to conduct such a search of the items in a vehicle, as described by the Court of Appeal in Holdem, is not triggered by the issuing of the notice but rather the act of impounding, but such a search did not seem to be justified merely by the act of seizing.
[14] The Judge went carefully through the evidence as to the detail of what happened and what was said between the Police officers. He concluded that there was no evidence to satisfy him that the defendant’s vehicle had, in effect, come into the authorised possession of the Police officer and, on an objective basis, there was no exercise of control over the vehicle sufficient to amount to an act of seizure. He was in no doubt that the intention of the Police officers was to move towards the seizure of the vehicle and its impoundment, at which point, an inventory search could lawfully be carried out. He said the Police accepted that the search occurred prior to the vehicle being impounded. The Judge concluded it also occurred before anything which could amount to seizure had occurred. He said, at no point prior to the search taking place, did the Police officers manifest an intention to assume control of the vehicle for the purposes of s 96 LTA.
[15] He thus concluded that the search was carried out prior to the point at which such a search was authorised under s 96 LTA.
2 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [50] per Blanchard J. The Judge referred to the Shorter Oxford Dictionary listing several meanings, the essence of which was the act of taking possession. Adams commentary on the NZ Bill of Rights Act 1990 at [BC 8.04(3)] and its reference to the Supreme Court of Canada’s decision in R v Arp (1988) 166 DLR (4th) 296 and the United States Supreme Court judgment in United States v Jacobsen (1984) 466 US 109 was also referred to.
[16] Having found that, in the circumstances, there had been an illegal search, he considered it would be appropriate to admit the evidence under s 30(2) of the Evidence Act 2006. The factors he considered were:
(a) the invasion of privacy involved in a search of a motor vehicle is much less than with a private dwelling and, of note, the vehicle was in a public place;
(b) there was no suggestion of bad faith or recklessness in the impropriety of what happened. It was not deliberate. At worst, it was a failure of the Police to turn their minds to the exact procedure required and the point at which the authority to conduct the search commenced. The decision to impound had clearly been taken. Such a search was inevitably going to happen and at an appropriate point it would have been lawful.
(c) the nature and quality of the improperly obtained evidence was very good;
(d) as against those matters, on any view of the offending, the evidence did not relate to serious offences;
(e) the issue was not whether other investigatory techniques should have been used but whether the point at which the investigatory techniques which were used were allowed to happen at the point at which they were carried out; and
(f) there was no suggestion of any alternative remedy to the exclusion of the evidence which would adequately provide redress to Mr Croton, and other considerations in s 30(3) did not apply.
[17] Having referred to those considerations, the Judge was satisfied that it would be out of proportion to the nature of the impropriety, which he considered to be technical at best, to exclude evidence that would inevitably have been discovered once the vehicle was impounded. He thus considered that the evidence obtained, even if technically obtained unlawfully, should be admitted.
Submissions for appellant
[18] Mr Watts referred to s 96(4) LTA:
(4) Personal property (other than property attached to or used in connection with the operation of the vehicle) present in a motor vehicle at the time of the seizure and impoundment must be released on request to a person who produces satisfactory evidence to the effect that he or she was lawfully entitled to possession of the vehicle or personal property immediately before the vehicle was moved.
[19] He submitted that s 96 gave the Police a right to search the vehicle upon notifying the defendant that the vehicle was to be impounded but only for the purpose of establishing ownership of the vehicle or the property in it and that any such search must be conducted reasonably, relying on R v Ngan.3 Mr Watts argued that, while the failure by the Police to formally seize and impound Mr Croton’s car may have been a technical breach of the search procedure under s 96 of the Act, it
was made more serious and was tainted by the earlier failure of the Police to return the defendant’s phone when he requested it. He submitted this was a significant impropriety.
[20] Mr Watts argued that the non-return of the phone should thus have been weighed in the balance when considering how to apply s 30. He said the situation was different from Holdem where the defendant had been given the opportunity to ask a passenger in the vehicle to retrieve certain items from the console and other parts of the car before the search was conducted. It was only after the driver in that case had denied that a backpack in the rear seat belonged to him that a constable discovered methamphetamine in the course of searching it in order to determine who the owner was.
[21] Mr Watts suggested the most significant factor which should have been weighed in the balance in applying s 30 was that these charges were not serious. If proved, they would attract only a small fine. He submitted that it was necessary to exclude the evidence to send a clear message to the Police that the process around
search and seizure is there for a good reason and Police should comply with it.
3 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [22].
Submissions for the Police
[22] Ms Henderson submitted the failure by the sergeant to comply with Mr Croton’s request for his cell phone could not render the search of the vehicle unlawful because it was unrelated to the search of the vehicle and did not form part of the sequence of events which led to the discovery of the cannabis pipe. She said, had Mr Croton’s request been complied with, the Police would still have embarked upon a search of the vehicle for the purpose of making an inventory of the property located within it. She said, on that basis, the non-return of the cell phone could not taint the search that resulted in the evidence being obtained.
[23] Ms Henderson submitted there was no error in the way the Judge had applied s 30.
Discussion
[24] Under cross-examination, Sergeant Hardee confirmed that Mr Croton was placed in the back of the sergeant’s car after the vehicle had been stopped and the sergeant had obtained information as to whether he was suspended. There was then this exchange with Mr Croton’s counsel:
Q. And Mr Croton asked you for his cellphone so he could phone his partner and tell her that he’d been pulled up and the car had been impounded, is that right?
A. Yeah at some point he did, yes.
[25] Sergeant Hardee said that, at some point, he did say to an officer that Mr Croton wanted his phone. To the Judge he said that he spoke to other Police officers before they searched the vehicle but he could not remember what he said.
[26] Sergeant Bayne, in his evidence, said that, when he arrived on the scene, he knew the Police had “wanted to interview” alerts in their Police National Database. He knew all impounded vehicles should be searched and an inventory created of any valuables and he asked Constable Van Dyk to search the vehicle and record an inventory of any valuable items in the vehicle. He said he explained the reason for the search to the constable. He said that shortly after Constable Van Dyk began the
search the constable informed him he had found the small glass pipe. Sergeant Bayne then directed the constable to invoke the S & S Act on the driver and to continue a search for drug related items. Constable Van Dyk then began the search and found the small plastic bag containing what he believed to be cannabis. He said he recovered items from the car, including a cell phone and snowboard, and made a record of them. In answer to a question from Mr Croton’s counsel, he accepted “no Police officer communicated to [him] that Mr Croton had asked for his cell phone so he could phone his partner and tell her the car was impounded”. He said he had seized the cell phone to take it to his supervisor to confirm if they could get a warrant or not and, when it was deemed they could not, the cell phone was returned to Mr Croton.
[27] Sergeant Bayne said that after arriving at the scene he told the driver that the Police would be searching the vehicle and making an inventory of any valuable items. Mr Croton told him there was nothing valuable in the car but the sergeant replied that they still had to search it. Under cross-examination, Sergeant Bayne said that it was common practice that, if they were impounding a vehicle and a defendant wanted items out of the car, they would assist with that. He said there was no discussion around that.
[28] Constable Wright, who arrived at the scene at about the same time as Sergeant Bayne and Constable Van Dyk, gave evidence. He said that, upon arriving, he and Constable Van Dyk were informed that the driver was a suspended driver and the car he was driving was “getting impounded”. He was told the car had been searched by another unit to identify valuables in it for when it was taken to the impound yard, that the pipe was found and, after the search and surveillance search, a small amount of cannabis was also found. He said he told Mr Croton he was under arrest for possession of cannabis and gave him his Bill of Rights. He said his cell phone was seized in the hope of obtaining a warrant to search it.
[29] The Police did not cross-appeal the Judge’s conclusion that the search was illegal at the time the sunglasses case was opened but I have needed to consider this in determining the seriousness of the unlawfulness which the Judge held had been established.
[30] I also had the submissions which were made to the District Court Judge on this issue. On appeal, I have the power to confirm, vary or set aside the decision appealed against and to make any order I consider appropriate.4
[31] The Judge found that the search was unlawful because it occurred prior to the vehicle having been impounded. He referred to Mr Watts’ submission, correct in the Judge’s view, that the evidence did not establish that the vehicle “had ever been impounded at the time of the search being carried out”. He referred to Mr Watts’ submission as to various witnesses talking in terms of the impounding as something happening in the future, but there being no evidence to suggest the vehicle had actually been seized, let alone impounded, at the time the search was carried out. He quoted the evidence of Sergeant Bayne, that he “spoke with the traffic unit (Sergeant Hardee) who stated the driver had a suspended licence, and his vehicle was to be
impounded”.5 The Judge said there was no evidence that Sergeant Hardee had
actually taken possession of the vehicle or directed anyone else to do it. The Judge referred to Constable Van Dyk’s evidence that he had relied on information from Sergeant Bayne that the driver was suspended and the car “would be being impounded”.
[32] Relevant to the issues on this appeal, s 96 provides:
96 Vehicle seized and impounded for 28 days in certain circumstances
(1) An enforcement officer must seize and impound, or seize and authorise the impoundment of, a motor vehicle for 28 days if the officer believes on reasonable grounds that a person drove the vehicle on a road while—
…
(b) the person’s driver licence is for the time being suspended or was revoked;
…
(1B) An enforcement officer who seizes and impounds (or authorises the impoundment of) a motor vehicle under subsection (1A) must, by means of a notice in the form approved for the purposes of section
115(1), direct that the vehicle is not to be driven on a road.
4 Criminal Procedure Act 2011, s 221.
5 The Judge’s emphasis.
...
(2) An enforcement officer who seizes and impounds (or authorises the impoundment of) a motor vehicle under this section must—
(a) complete a notice in the prescribed form, or in a form to the same effect, acknowledging the seizure and impoundment, and setting out (if the particulars are reasonably ascertainable)—
(i) the full name and full address of the driver; and
(ii) the year and make of the vehicle, and its registration plate details or vehicle identification number; and
(iia) if subsection (1A) applies, the date and time of the alleged offence; and
(iii) the date and time of the seizure; and
(iv) the place where the vehicle is to be impounded; and
(v) an outline of the person’s rights of appeal under sections
102 and 110; and
(b) give the driver a copy of the notice, unless the driver has left the scene;
…
(4) Personal property (other than property attached to or used in connection with the operation of the vehicle) present in a motor vehicle at the time of the seizure and impoundment must be released on request to a person who produces satisfactory evidence to the effect that he or she was lawfully entitled to possession of the vehicle or personal property immediately before the vehicle was moved.
(4A) Personal property present in a motor vehicle at the time of the seizure and impoundment must be released subsequently to—
(a) a bailiff or constable who is executing a warrant to seize property:
(b) a person acting on behalf of the owner of the goods if the person produces satisfactory evidence of the owner’s consent to such release.
...
[33] The Judge noted there was no dispute that the Police were required to seize and impound the vehicle. The driver’s licence was suspended at the time he was stopped.
[34] The Judge acknowledged that the giving of a notice as to impounding is not the impounding of the vehicle itself, but a step consequent upon the act of impounding.
[35] Although the Judge referred to the Police accepting “that the search occurred prior to the vehicle being impounded”, the judgment also refers to a submission from the prosecution that, because the defendant and the vehicle were required to remain at the roadside for a significant period of time and during that period, the impoundment effectively commenced at that point. The Judge, however, noted that that detainment was of the defendant, rather than the vehicle.
[36] The Judge said that it was undoubtedly the intention of the Police officers to move towards the seizure of the vehicle and its impoundment, at which point an inventory search would have been able to be carried out and the items subsequently found would have been revealed.
[37] I consider that, if the Police are required to impound a vehicle under s
96(1B), they are entitled to search a vehicle to make an inventory of the personal property in it when they begin the process of impounding the vehicle.
[38] In Holdem v R, as referred to by the Judge, White J stated:6
[21] Second, it is well-established that when, in the course of impounding a vehicle under s 96(1), it is necessary for the police to ascertain the registered owner of the vehicle, it is reasonable for the police to search the vehicle for any information that might indicate who the true owner of the vehicle is. Given the urgency inherent in the situation, no warrant will be required. The need for the police to ascertain the registered owner of the vehicle at that stage is reinforced by s 96(5) which provides that the vehicle does not have to be impounded if the police have good cause to suspect that the vehicle is a stolen vehicle or has been converted. One of the reasons for this is that the registered owner is liable for the cost of towage and storage of an impounded vehicle.
[22] Third, it is also well-established that the police are entitled to search a vehicle they have impounded in order to make an inventory of the personal property in it for the benefit of the owner or owners of the property who are entitled to possession of it under s 96(4). The police are entitled to search such property without a warrant, provided they do so reasonably and for the purposes of preserving property and identifying its owner. Searches of this
nature conducted reasonably and for these purposes will not be in breach of s
21 of NZBORA.
[39] In para [22], White J referred to the Police being entitled to search a vehicle which “they have impounded”. He equated this with the Police right to search a vehicle to ascertain its registered owner. In that context, White J said the Police have a right of search “in the course of impounding a vehicle under s 96(1)”. That is the same section and subsection that gives the Police a right of search when the officer believes on reasonable grounds that the licence of the person driving the vehicle has been suspended or revoked.
[40] White J’s conclusions, as expressed at para [21], related to a situation where the Police were in the process of impounding the vehicle rather than having completed it already.
[41] White J also referred to the Supreme Court decision in R v Ngan.7 There, Blanchard J, for the majority, said that a true inventory search is one carried out for the benefit of the owner of the property, more than for the benefit of the Police. Such a search was permitted by New Zealand law provided the searcher was acting reasonably and for the purpose of preserving the property.
[42] White J also referred to Tuato v R.8 There, the Court of Appeal confirmed the District Court’s decision that a search by Police was lawful. That search was being conducted in the course of an impoundment and well before the car was to be towed by a contractor, first to the Police Station and from there to the contractor’s impoundment yard for storage.
[43] In all of these cases, the courts have confirmed that, independent of s 96 LTA, information could be lawfully obtained when Police were checking items within a car pursuant to the general powers and duties which the Police have at common law to protect life and property. Such powers continued to exist alongside the powers specifically provided for in the LTA and the S & S Act.
[44] The lawfulness of the search in this case would have been more clearly established if there was clear evidence that one of the Police had said to the driver that the Police were seizing and impounding the vehicle pursuant to s 96. However, I disagree with the finding that the Police officers had not, prior to the search taking place, manifested an intention to assume control of the vehicle for the purposes of s
96. The sort of search they were conducting in looking for valuable items, and checking to see if a spectacle case contained spectacles, was a search of chattels for the purpose of preparing an inventory, a step which they needed to take promptly when beginning the process of impounding a vehicle. It was apparent from the question asked of Sergeant Hardee that Mr Croton had asked for his cell phone so he could phone his partner and tell her that he had been pulled up and the car had been impounded. Sergeant Bayne directed Constable Van Dyk to search the vehicle and to record an inventory after being told the vehicle was to be impounded.
[45] In Tuato, the search of the glovebox occurred when a constable was filling out “the form for impoundment of the vehicle under s 96”, but the judgment of the Court of Appeal does not refer to any evidence that the Police had, at the time of the search, told the driver they were impounding the car. The Court of Appeal held it was reasonable for the constable to look in the glovebox for any information that might indicate who the true owner was.9
[46] For those reasons, I doubt the Judge was correct in finding the search of the spectacle case was unlawful, even if he was right to conclude, for the reasons given in his judgment, that the Police had not exercised such control of the vehicle to have, at the time of that search, “seized it”.
[47] In any event, this means that, if the search was unlawful, it was on a technical basis and at an exceedingly low level.
[48] If the Judge was correct to hold the search unlawful for the reasons he gave, there was no error in applying s 30(2) and ruling the evidence obtained was admissible.
[49] Mr Watts argued that the Judge should have had greater regard to the failure or refusal to obtain and give to Mr Croton the cell phone when he asked for it. The Judge disregarded that because he considered it had been irrelevant to both the search that was conducted and the evidence as to the items that were ultimately found.
[50] Section 21 NZBORA states that “everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise”. It has long been clear that, as said by Elias CJ in Hamed v R, “there may be … unreasonableness in the manner of investigation under lawful authority,
so that lawfulness is not exhaustive of unreasonable search and seizure”.10 An
authorised search may be unreasonable under s 21 of the NZBORA if it is carried out in an unreasonable manner, which requires consideration in the context of subject matter, time, place and circumstance.11
[51] I thus accept that there could be some event or act associated with an otherwise lawful search which could make the search unreasonable and thus potentially require evidence obtained from a lawful search to be excluded. For instance, if around the time of carrying out a search of a vehicle a constable assaulted the driver, that could be taken into account in finding that the search was unreasonable and that evidence obtained from it should be excluded, even though the assault was not an essential or inherent part of the search.
[52] Here, the cell phone was not given to Mr Croton immediately after he asked for it. After the Police had identified the pipe for smoking drugs, they exercised their undisputed power to make a warrantless search and obtained evidence of the cannabis. They retained the cell phone on the basis it might be possible to search it for evidence of further offending. When the constable was told by a superior that they could or should not keep it for this purpose, the cell phone was returned to Mr Croton.
[53] Section 96(4) LTA requires personal property to be released on request to the person who establishes he was entitled to possession of it at the time of impoundment. I do not consider this necessarily requires the Police to give the item to him immediately on request.
[54] Section 110(d) S & S Act authorises any person exercising a search power “to seize anything that is the subject of the search or anything else that may be lawfully seized”.
[55] Section 20 S & S Act empowered the Police to search the vehicle without a warrant. This was because the Police had reasonable grounds to believe there was cannabis in the vehicle and that in the vehicle an offence against the Misuse of Drugs Act 1975 had been committed, or was about to be committed, and if the search was not carried out immediately, evidential material relating to the suspected offence would be destroyed, concealed, altered or damaged.
[56] Section 112 S & S Act authorises a Police officer exercising a search power to remove an item for examination or analysis to determine whether it may be lawfully seized where he is uncertain whether any item found may lawfully be seized, and it is not reasonably practicable to determine this at the vehicle where the search takes place.
[57] Section 123 S & S Act authorises a Police officer, who is lawfully in a vehicle as part of his duties, to seize any item he finds as a result of observations in the vehicle if the Police officer has reasonable grounds to believe that he could have seized the item under any search warrant that could have been obtained by him under the S & S Act.
[58] Section 133 S & S Act required the Police officer who seized the cell phone during the search, “as soon as practicable” after the seizure and, in any case, not later than seven days after the seizure, to provide to Mr Croton written notice of the item seized.
[59] Section 150(1) S & S Act required the cell phone to be returned to its owner or the person entitled to possession of it if it was not required for investigative or evidential purposes.
[60] Constable Van Dyk’s evidence was that, after the Police found the drug paraphernalia in the car, he thought there might be evidence on the phone related to drug offending, so he took the cell phone back to the Police station to check with the supervisor as to whether they should retain it and obtain a search warrant to access information on it. He said his supervisor said it was not necessary to keep and that it was returned to Mr Croton, he thought, on his release following the initial arrest.
[61] Against that legislative background, it is likely that the constable’s relatively brief retention of the cell phone was lawful. Even if that were not the case, retention of the cell phone after Mr Croton’s initial request would not have been so unreasonable as to require the exclusion of evidence which, in any event, was not obtained through the Police holding on to the cell phone. Accordingly, I agree with the District Court Judge that the non-delivery of the cell phone to Mr Croton immediately after he asked for it, could not make the Police search of the spectacle case so unreasonable that the evidence as to the discovery of the pipe and later the cannabis should be ruled inadmissible.
[62] For all these reasons, the appeal is dismissed. The Judge’s decision, that the evidence objected to was admissible, is confirmed.
Solicitors:
Brandts-Giesen & McCormick, Rangiora
Raymond Donnelly & Co., Christchurch.