Thomas v The Queen
[2005] NZCA 182
•7 July 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA173/05
THE QUEEN
v
MALCOLM MATTHEW THOMAS
Hearing:21 June 2005
Court:Anderson P, Williams and Doogue JJ
Counsel:G R Anson for Appellant
M D Downs for Crown
Judgment:7 July 2005
JUDGMENT OF THE COURT
THE APPEAL AGAINST A PRE-TRIAL RULING THAT CERTAIN EVIDENCE IS ADMISSIBLE IS DISMISSED.
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REASONS
(Given by Williams J)Issue
[1] On 6 May 2005 Laurenson J delivered a reserved judgment granting the Crown’s application that evidence of Police finding 524 tablets of morphine sulphate in a car on 21 May 2004 was admissible.
[2] The appellant, Mr Thomas, appeals to this Court against that ruling.
Facts
[3] On 13 February 2004 the Police executed a search warrant under the Misuse of Drugs Act 1975 s 18(1) at an address in Kaitaia occupied by the appellant and his co-accused, a Ms Hetaraka. Drug paraphernalia was seized as were cannabis plants, seedlings and growing equipment. Some was in a Holden car at the address.
[4] A second search warrant, the one in contention on this appeal, was obtained by Police on 20 May 2004 authorising them to “search the … building, carriage, vehicle, box, receptacle, premises, place or person” at the appellant’s address for drugs, drug paraphernalia, firearms and ammunition.
[5] On 21 May 2004 Police executed the second search warrant at the appellant’s address. Cannabis seeds and stolen property were found in the house. The Holden car was still present. A Mazda car was also present with window etchings recording the original VIN number obliterated and false VIN plates attached. The Holden had been stolen from Auckland on 22 April 2003. The Mazda had been stolen from Auckland on 26 February 2004. The registration plates had been changed between the time of the thefts and when the cars were seen by Police on 21 May 2004.
[6] Police searched the Holden at the appellant’s premises on 21 May 2004. They did not find the morphine sulphate tablets at that stage. However, after checking the vehicle’s details, they ascertained it had been stolen and arranged for it to be towed to local secure storage. There, later that day, they searched it more thoroughly and found a package containing the tablets secreted in the engine bay.
Judgment under appeal
[7] After briefly reviewing the background, Laurenson J noted the omission of any reference to stolen vehicles in the search warrant, the unsuccessful initial search, the removal of the Holden to secure storage and the further successful search undertaken at that location. He noted that “no explanation has been provided as to why the further search was carried out”. From that the Judge concluded :
[14] The search warrant in this case did not authorise the police to search the vehicle for the purpose of determining whether it had been stolen. The police did search it for this purpose as well as the purpose authorised under the warrant. It was seized because it was stolen. It follows that the seizure was unlawful.
[15] In McFarlane v Sharp [1972] NZLR 838, the Court of Appeal reaffirmed that a search warrant does not authorise seizure of material outside the scope of the warrant, albeit that there is a proper basis for the conclusion that the items in question afford evidence of the commission of an offence.
[8] Turning, in light of that conclusion, to whether the seizure of the Holden was reasonable, the Judge reviewed R v Power (1999) 179 CRNZ 662 and Horne v Police (1997) 14 CRNZ 687 before holding :
[23] In the present case the finding of evidence indicating the vehicles were stolen was not a consequence of the search for drugs. Rather it was one of the reasons why the vehicles were being searched in the first place.
[24] Had it not been for this additional intention I would have no hesitation in saying that the seizure of the vehicles was reasonable. The evidence is, however, that there was the additional dual purpose in searching for the vehicle.
[25] The law in New Zealand has always recognised that the exercise of rights under search warrants involves a significant encroachment on the rights of citizens. The police are required to specify with some particularity why there are reasonable grounds for believing particular items may be relevant to the commission of a particular offence. Suspicion is not enough.
[26] In the present case, the police obviously suspected there may be stolen vehicles on the property, but apparently, they did not have reasonable grounds upon which to base an application for a search warrant.
[27] In my view it would strike at the integrity of the search warrant process if the police could obtain a search warrant ostensibly for one purpose only but with an intention to search for other material not referred to in the warrant. That is a fundamentally different situation from that where the police are executing a search warrant for a defined purpose and then happen upon other material indicating a different crime. For this reason I find that the seizure of the vehicle was not only unlawful, but it was also unreasonable.
…
[29] In my view the need to enforce the integrity of the search warrant process is such that I consider the unlawful nature of the seizure of the vehicle outweighs any countervailing circumstances.
[9] The Judge then undertook the balancing exercise as to admissibility set out in this Court’s judgments in R v Shaheed [2002] 2 NZLR 377 and R v Maihi (2002) 19 CRNZ 453. He commented that “had it not been for the duality in purpose there would be no doubt in my mind that it would have been reasonable to seize the vehicle”. Accepting that Police would be “failing in their duty if they did not keep an eye out” for evidence of another crime when searching vehicles under a valid search warrant, the Judge nonetheless held that the “difference in this case is that, prior to the search, they had determined to look for evidence of another specific crime which was not referred to in the warrant”. He concluded that there was no bad faith on the part of Police, finding evidence of theft was an inevitable consequence of searching the vehicles for drugs, the intrusion on the accused’s right to privacy was not a serious one and accordingly the evidence was admissible.
[10] Given the influence on the decision of the Judge’s finding of the duality of Police purpose, it is pertinent to record, as the Judge did, the evidence on which his conclusions were based. Detective Harris, one of the Police team who executed the second search warrant, said in cross-examination :
Q.Your primary reason for searching the motor vehicles was to look for drug items listed in the warrant, is that right?
A.As well as to establish whether they were legitimate vehicles or not.
Q.Well, you tell me, when the Police start searching through those vehicles was it to look for drugs or was it to see whether they might be stolen?
A.Would be for both.
Submissions
[11] For the appellant, Mr Anson supported the judgment that the seizure of the Holden at Mr Thomas’ address was unlawful and unreasonable and this tainted the subsequent search making it, too, both illegal and unreasonable. He submitted Police should have obtained a further search warrant for the second search. He suggested the Judge was incorrect to hold it was inevitable that evidence of theft would be found during the second search for drugs in the car. He submitted the Judge erred in balancing the various factors which led him to rule the evidence admissible. He submitted the appellant’s privacy interests were higher when the vehicles were found on private property than, as in Maihi, on a public road.
[12] For the Crown, Mr Downs accepted that the seizure of the two vehicles and their being towed from the appellant’s address was unlawful having regard to the decision of this Court in McFarlane. He nonetheless submitted the seizures were not unreasonable in the circumstances, reasonableness and legality being separate concepts: R v Grayson and Taylor [1997] 1 NZLR 399.
[13] In arguing Police actions were not unreasonable, Mr Downs emphasised the appellant’s lack of any legitimate interest in the stolen cars. He further submitted that a secondary purpose coinciding with the execution of a search warrant could not vitiate an otherwise lawful search of property which comes within the warrant. There was, he submitted, no greater intrusion on the appellant’s reasonable expectations of privacy than the intrusion the warrant authorised.
[14] He submitted this was not a case where the application for the warrant contained misleading or incorrect information. He drew attention to the observations of the Supreme Court of the United States in Horton v California 496 U.S. 128; 110 S.Ct. 2301 where the majority of the Court held :
The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of the warrant or a valid exception to the warrant requirement. If the officer has knowledge approaching certainty that the item will be found, we see no reason why he or she would deliberately omit a particular description of the item to be seized from the application for a search warrant. Specification of the additional item could only permit the officer to expand the scope of the search. On the other had, if he or she has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first.
[15] Mr Down submitted the Judge erred in distinguishing Power on the basis of dual purpose and that, in the appellant’s case, nothing was done to infringe any reasonable expectation of privacy beyond the intrusion sanctioned by the warrant. A second search of the vehicles pursuant to the warrant needed no second warrant and could not further infringe Mr Thomas’ privacy expectations.
Discussion
[16] We regret we find ourselves differing, with respect, from the Judge in two important respects.
[17] In the first place, the Judge reached the view that seizure of the vehicles was unlawful as the search warrant did not expressly confer power on Police to search vehicles for the possibility of their being stolen.
[18] That, however, does not, to us, seem tenable.
[19] The Police lawfully entered the appellant’s address pursuant to the search warrant. They searched the Holden pursuant to the powers in the warrant. Whilst doing that, their suspicions were aroused as to the provenance of the vehicles. They checked the position. They ascertained both vehicles were stolen. They removed both vehicles. They searched the Holden again in secure premises and found the drugs.
[20] None of that could possibly have infringed this appellant’s privacy expectations for he had none. Not only were the cars within the ambit of the search warrant but the appellant could not have an interest in the cars entitling him to hold them as against the true owners. As his interest had to be subservient to that of the true owner the Police were justified in seizing the stolen cars.
[21] We do not exclude the possibility of privacy expectations arising in respect of property in which the person complaining about a search or seizure has no proprietary or possessory interest. The circumstances of a case will usually determine whether or not a privacy expectation should be recognised. But in this case the appellant had no standing to complain about the seizure of the vehicle and the retention of it in police custody on behalf of the true owner. Nor could he sensibly be held entitled to complain about the search of the vehicle when he himself had no lawful custody of it.
[22] Whilst, as Mr Downs submitted, the decision of this Court in McFarlane may warrant reconsideration, we take the view that McFarlane is clearly distinguishable from the present case. In McFarlane, documents taken were illegally seized because they were outside the ambit of the search warrant. But they were items owned by the appellant or to which he clearly had legitimate expectations of possession whereas here, for the reasons mentioned, the reverse is the case.
[23] The appeal must accordingly be dismissed but, for completeness, we should say that even had that not been the case, we are entirely unpersuaded that the Judge was in error in the balancing exercise he undertook pursuant to Shaheed and Maihi. We agree with him that the seizure of the vehicles was reasonable, as was the search warrant process. Discovery of the drugs on a more thorough examination of the Holden was inevitable. The seizure and search were carried out without infringing any legitimate interests of the appellant. We take the view the citation from Horton is an apposite summary of what occurred here and the number of pills found and their value is a significant factor weighing against the appellant in the Shaheed balancing exercise.
Result
[24] In the result, for the reasons mentioned, the appeal is dismissed.
Solicitors:
McLeod & Partners, Kerikeri for Appellant
Crown Law Office, Wellington
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