Morris v Police
[2025] NZHC 1684
•24 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000254
[2025] NZHC 1684
BETWEEN CALEN CHRISTOPHER MORRIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 June 2025 Appearances:
V I Tava for Appellant G Young for Respondent
Judgment
24 June 2025
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 24 June 2025 at 3.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date: …………………………….
MORRIS v NEW ZEALAND POLICE [2025] NZHC 1684 [24 June 2025]
Introduction
[1] Mr Morris seeks to appeal against the decision of Judge L Tremewan in the District Court ruling evidence of cocaine and anabolic steroids found at his address admissible at trial.1
[2] The drug and prescription medicine were seized by the Police pursuant to s 123 of the Search and Surveillance Act 2012 (Act) (seizure of items in plain view). The critical issue to address is whether the requirements of s 123 were met.
[3] Pursuant to s 215 of the Criminal Procedure Act 2011, leave is required to appeal against Judge Tremewan’s decision (a pre-trial direction).
[4] On 28 May 2025, I directed that the application for leave to appeal, and the substantive appeal, be heard together.
[5] The Police do not oppose leave and given that the evidence involved is central to the prosecution case, leave is granted.
[6] First appeals against pre-trial decisions are general appeals.2 This Court is entitled to arrive at its own assessment of the merits of the case,3 but may give weight to the reasoning of the lower court where it considers it appropriate.4
Factual background
[7] Mr Morris faces a charge of possessing cocaine5 and a charge of possessing anabolic steroids in breach of the Medicines Act 1981.6
[8] On 19 April 2024, a search warrant was issued to Police under s 6 of the Act for evidential material in relation to driving charges against Mr Morris.
1 Police v Morris [2025] NZDC 9743.
2 R v Gwaze [2010] NZSC 52; [2010] 3 NZLR 734 at [49]–[53].
3 Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] NZLR 141 at [5].
4 Austin, Nicholls & Co Inc v Stichting Lodestar, above n 3, at [16].
5 Misuse of Drugs Act 1975, s 7: maximum penalty of six months’ imprisonment or a fine not exceeding $1,000.
6 Medicines Act 1981, ss 43 and 78: maximum penalty of three months’ imprisonment or a fine not exceeding $500.
[9] The warrant authorised Police to search Mr Morris’ home for various items, including a black hooded jumper with a motorcycle printed on the front, black gloves, black track pants, Nike shoes, a clown mask, a pig mask, all electronic storage devices attributable to Mr Morris, and keys to two vehicles. The warrant also authorised Police to extract, analyse and retain digital evidence from the relevant devices.
[10] On 23 April 2024, the Police executed the search warrant. Mr Morris was arrested.
[11] At approximately 7.16 am, Detective Walker searched the garage. There he located some items listed in the search warrant, including Nike shoes, a black motorcycle hoodie and a clown mask, amongst other items. These items were seized.
[12] About 7.47 am the same officer searched the kitchen area. In the pantry, he located an unmarked medicine bottle containing two bags of white powder, a bag of cannabis and unidentified pills. He also found multiple bottles of unlabelled medicine.
[13] Detective Walker informed Constable Bergin of the unknown white crystalline substance found in the pantry near some of the medication.
[14] At 7.53 am, Constable Bergin invoked a warrantless search for drugs under the Act.
[15] The officers continued searching the address. At 8.12 am, Detective Walker found three phones in the top draw of the kitchen island.
[16] At around 8.24 am, Detective Walker searched the dining area. He located various items listed in the warrant, including an Ipad, a clown mask, a hoodie with a motorcycle on it and a backpack containing Mr Morris’ driver’s licence. Those items were seized.
[17] As a result of the search, the Police located a quantity of cocaine and a number of vials of steroids.
District Court decision
[18] In interpreting s 123, Judge Tremewan relied on the following comments from the Law Commission as cited in Roskam v R on plain view:7
Plain view does not mean that the object must be visible to the naked eye without any investigative activity taking place to reveal it. Rather, it must be able to be discovered by the investigative activity within the boundaries of the authorised search. If the lawful authority to search (or inspect) includes the power to open a cabinet or a drawer, or the boot of a car, or to inspect the pocket of someone’s jacket, and an item is seen as a result, it will be in plain view.
[19] Then, having analysed the evidence given by the police officers carrying out the search, she found that at the time the Police found the items, the officers were conducting a lawful search under the search warrant, and it was not their intention for the search of the pantry to be a fishing expedition.8 Specifically, she noted that not all of the items listed in the search warrant had been found by the time the search of the pantry was undertaken, so the lawful search was ongoing.
[20] She went on to conclude that there was a lawful basis for triggering a warrantless search because the police discovered in plain sight a clear indication of an offence under the Medicines Act 1981 while conducting the search pursuant to the warrant.
[21] Specifically, the Judge accepted evidence from Detective Walker as justifying the seizure as set out below:
Officer Walker said “what piqued my interest appeared to be the bottle without a label. It made me consider the Medicines Act – we weren’t specifically looking for medicines we were looking for things from the search warrant”. When challenged in cross-examination he said “during a search of a container (referring to the yellow cloth box that the relevant items were found in) for some items such as phones, keys, other small items, I came across some other possible offending so there was justification for looking at that under s 123 of the Search and Surveillance Act – an unlabelled bottle. In and of itself it is an offence to have prescription medicine without identification. With that in mind and with the bottle in hand I took a closer look”. It was at this time that the two small plastic bags of cocaine were found (along with a small quality of cannabis) along with a number of unspecified tablets.
7 Roskam v R [2019] NZCA 53, [2019] 3 NZLR 82 at [12], citing Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [3.132].
8 Roskam v R, above 7, at [19].
Relevant legal principles
Search warrant
Section 6 of the Act provides:
Issuing officer may issue search warrant
(1) An issuing officer may issue a search warrant, in relation to a place, vehicle, or other thing, on application by a constable if the issuing officer is satisfied that there are reasonable grounds—
(a)to suspect that an offence specified in the application and punishable by imprisonment has been committed, or is being committed, or will be committed; and
(b)to believe that the search will find evidential material in respect of the offence in or on the place, vehicle, or other thing specified in the application.
(2) This section does not apply to an application for a search warrant issued under section 18D.
Items in plain view
Section 123 of the Act reads:
Seizure of items in plain view
(1) This section applies to an enforcement officer who, as part of his or her duties,—
(a)exercises a search power; or
(b)is lawfully in any place or in or on a vehicle; or
(c)is conducting a lawful search of a person.
(2) An enforcement officer to whom this section applies may seize any item or items that he or she, or any person assisting him or her, finds in the course of carrying out the search or as a result of observations at the place or in or on the vehicle, if the enforcement officer has reasonable grounds to believe that he or she could have seized the item or items under—
(a)any search warrant that could have been obtained by him or her under this Act or any other enactment; or
(b)any other search power exercisable by him or her under this Act or any other enactment.
(3) If an enforcement officer seizes any item or items under subsection (2), in circumstances where he or she is not already exercising a search power,
the enforcement officer may exercise any applicable power conferred by section 110 in relation to the seizure of the item or items.
Analysis and decision
[24] Mr Tava, counsel for Mr Morris, accepts that the steroids were immediately visible upon looking into the pantry. However, he contended that the cocaine found inside the tinted medicine bottle was not in “plain view”. His principal submission was that the additional step of opening the bottle taken from the container is “a bridge too far” in terms of the permissible search power under s 123 of the Act.
[25] As Judge Tremewan correctly noted, the leading decision on the scope of the s 123 power is Roskam v R.9 In that case, the search warrant permitted officers to search Mr Roskam’s room for a stolen laptop. When the warrant was executed, Mr Roskam immediately handed over the laptop. Police officers then found other items alleged to be stolen property inside bags under the bed (the bags had been observed while searching the bedroom for the laptop listed in the warrant). The Court of Appeal held that the further items were capable of being seized under s 123. All items were found as a result of observation when a lawful search was still under way and where the officers seizing those items had reasonable grounds to believe that they could have obtained a warrant to search for and seize the bags.10
[26] Mr Tava sought to distinguish Roskam on the basis that the warrant was “for the same type of items for the same type of offending”. However, in my view, whether or not the items found related to the same type of offending is not a requirement under s 123; the section makes no distinction of that kind. As Judge Tremewan correctly noted, the test is whether the object was able to be discovered by the investigative activity within the boundaries of the authorised search.
[27] I find that Judge Tremewan did not err in concluding that the requirements of s 123 were met in this case. The investigative activity in the pantry, and in particular the search of the container, was within the boundaries of the authorised search.
9 Roskam v R, above n 7.
10 Roskam v R, above n 7, at [34].
[28] The medicine bottle containing the cocaine was not labelled. In his evidence, Detective Walker said:
During a search of container (referring to the yellow cloth box that the relevant items were found in), for some items such as phones, keys, other smaller items, I came across some other possible offending so there was justification for looking at that under s 123 of the Act – an unlabelled bottle. In and of itself it is an offence to have prescription medicine without identification. With that in mind and with the bottle in hand I took a closer look.
[29] Detective Walker clearly had reasonable grounds to believe that the unlabelled medicine bottle contained evidence of an offence under the Medicines Act 1981, reasonable grounds to suspect an imprisonable offence had been committed, and therefore that a search warrant could have been obtained to search the medicine bottle. Accordingly, I find that the medicine bottle was lawfully seized under s 123.
[30] I also find that opening the unlabelled bottle was lawful. Section 112 of the Act permits the removal and examination of items where there is uncertainty about the lawful power to seize. As the Court of Appeal held in Roskam, it would make little sense to conclude the seizure power under s 123 did not extend to items in the nature of containers given the broader terms of s 112.11 The subsequent seizure of cocaine was, therefore, permitted under s 123 of the Act.
[31] It is equally clear that there was a proper evidential basis for the District Court Judge’s finding that the search was still ongoing at the time the cocaine was discovered and was at that stage, incomplete. The evidence establishes that some items listed in the search warrant were found earlier in the search (i.e. prior to discovery of the cocaine) and some items were found afterwards.
[32] Mr Tava has responsibly accepted that it was reasonable for the Police to search the pantry and the yellow cloth container containing the medicine bottle. However, I reject his principal contention that a search inside the medicine bottle was a step “too far”.
11 Roskam v R, above n 7, at [29].
[33] I do not address the further submissions of Mr Tava that the cocaine and steroids found in the kitchen were unreasonably obtained and should be inadmissible because the search was unreasonable. The District Court Judge expressly noted12 that no issue had been taken with the lawfulness of the warrant or the search that was otherwise carried out. There is no pre-trial ruling on that point that might properly be the subject of challenge on appeal. In any event, as Mr Young, for the Police, submitted, there seems to be little merit to the objection taken.
Result
[34]The appeal is dismissed.
Andrew J
12 Police v Morris, above n 1, at [6].
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