Wedge v Police
[2023] NZHC 2773
•4 October 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2023-463-34
[2023] NZHC 2773
BETWEEN CAITLYN WEDGE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 October 2023 Appearances:
A Spense for Appellant
T T Taane for Respondent
Judgment:
4 October 2023
JUDGMENT OF LANG J
[on appeal against conviction]
This judgment was delivered by Justice Lang On 4 October 2023 at 4.00pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Pollett Legal Ltd, Tauranga
Law Aid International, Mount Maunganui
WEDGE v NEW ZEALAND POLICE [2023] NZHC 2773 [4 October 2023]
[1] Following a Judge-alone trial in the District Court, Ms Wedge was found guilty by Judge W Lawson of being in possession of cannabis for the purpose of sale.1 She appeals against conviction that the basis that the police obtained the evidence against her by means of an unlawful search of her motor vehicle. She says the evidence was therefore improperly obtained and the appropriate response would have been for the Judge to exclude the evidence under s 30(4) of the Evidence Act 2006. In that event, she should have been acquitted.
Background
[2] At 3.45 am on 15 June 2023, a police patrol vehicle conducted a routine stop of a vehicle Ms Wedge was driving in Papamoa. She initially provided false information regarding her name and address. When the police learned Ms Wedge’s true identity, they discovered she was in breach of her bail conditions by driving at that time of night and was also driving whilst disqualified. The latter meant that the police were required to impound Ms Wedge’s vehicle for 28 days under s 96(1) of the Land Transport Act 1998.
[3] Before the vehicle was towed away to where it was to be stored, the police conducted an inventory search of her vehicle. Inside a cookie container in the front passenger side of the vehicle they found a quantity of cannabis bud material. They then exercised their powers to conduct a warrantless search under s 20 of the Search and Surveillance Act 2012 (SSA). This resulted in the discovery of approximately 30 more grams of cannabis bud material, a set of scales that contained cannabis residue and several plastic bags. One of the plastic bags contained approximately one gram of cannabis. The police also found a “tick book” of the type commonly associated with the sale of drugs.
The Judge’s decision
[4] At the beginning of the trial the Judge conducted an evidentiary hearing to determine the admissibility of the evidence the police had found in Ms Wedge’s vehicle. In an oral ruling given at the end of the hearing the Judge reviewed recent decisions of the Supreme Court and Court of Appeal relating to the powers of the
1 New Zealand Police v Wedge [2023] NZDC 11027.
police to conduct an inventory search.2 He then held that the police were lawfully entitled to conduct an inventory search of Ms Wedge’s vehicle. The Judge’s reasons are encapsulated in the following paragraphs of his ruling:
[11] Constable Fifield was specifically asked why he looked into what was referred to as the cookie container. He said because he knew that what was in there was not cookies. He was then asked what he suspected was in there and he said something other than cookies. He said that he did not specifically know what it was that was contained within the cookie container.
[12] In circumstances where something unknown is contained in an item I consider that the police have an obligation to ensure that property is properly accounted for as part of the inventory search. Where the police are unsure about the contents of a receptacle and they consider that it must contain something other than what is on the obvious packaging of the container, I consider that it is appropriate for them to look into that receptacle as part of the obligation to inventory the contents of the vehicle.
[13] In my view the action taken in this case by Constable Fifield, whilst not particularly well documented, was sufficient to identify that he had some concerns about the content of it, not being consistent with the packaging and therefore, there was a basis to look into it to inventory the contents as part of the general inventory of the vehicle. I consider that that is entirely in keeping with the bailment obligations of the police in the circumstances and so I find that the search of the cookie container was permissible as part of the inventory search. It follows logically that the subsequent discovery of cannabis properly engages the search under the Misuse of Drugs Act so I find that the search is lawful.
The appeal
[5] On Ms Wedge’s behalf Ms Spence submits that, assuming the police were entitled to search Ms Wedge’s vehicle for inventory purposes, this did not entitle them to open the cookie container in which they found the cannabis bud material. Even if the search of the cookie container was lawful, she contends the police should not have exercised their warrantless powers of search after they found the cannabis bud material in the cookie container. The police should at that stage have obtained a search warrant. This would have entitled them to search the vehicle at any time during the 28-day period during which it was going to be impounded.
[6] Ms Spence therefore submits that all the evidence the police found in Ms Wedge’s vehicle was improperly obtained. She also contends that exclusion of the evidence was the only proportionate response in terms of s 30(4) of the Evidence Act.
2 At [6]-[10].
The power to conduct an inventory search
[7] Recent appellate authority has established that, when the police impound a vehicle under s 96(1) of the Land Transport Act, they have the power to search it to make an inventory of its contents. The power arises either as part of their duty at common law to protect property of which they are bailee or as a necessary incident of their obligation to impound vehicles under s 96(1) of the Land Transport Act.
[8] The development of this line of authority began with the Supreme Court’s judgment in R v Ngan.3 That case and subsequent authorities were reviewed recently by Isac J in Gardner v New Zealand Police, and it is not necessary to repeat that exercise here.4 It is sufficient to refer to the following observations made by the Court of Appeal in Casey v R:5
[16] The obligation under ss 96(1) and 96(4) to impound a vehicle and return personal property in the vehicle to its owner renders the police bailees of the vehicle and its contents. Prior to the SSA this circumstance was recognised as imposing an obligation to take reasonable steps to secure the property, which requires an inventory. In Tuato v R, this Court considered the search of a vehicle impounded under s 96(1)(b) because the driver’s licence was suspended. On the basis of R v Ngan, the police were regarded as bailees and the Court considered that:
Implicit in s 96(4) is that the police must secure and safeguard personal property in an impounded vehicle. If that is not done the police will not be able to release that property to its owner on request, as required by the sub- section. Here, 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. In that situation, we consider the s 96(4) powers may have entitled the police to go through the car in order to make an inventory of the personal property in it.
[9]In Casey the Court of Appeal further observed:
[18] We do not accept that the SSA affects the recognised common law duty on a bailee to take an inventory of bailed goods for the purposes of keeping them safe pending their return to the true owner. It is evident from cases decided by this Court since the SSA came into force that this duty continues to be recognised. For example, in R v Holdem, the police impounded the car of a suspended driver and found a backpack containing digital scales, which led to a search of the vehicle generally. This Court commented that:
3 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 28.
4 Gardner v New Zealand Police [2022] NZHC 1258 at [56]-[69].
5 Casey v R [2021] NZCA 29 (footnotes omitted) .
[22] … 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. …
[10] In the present case, Constable Fifield said he searched the vehicle to ensure it was safe because it was going to be stored by a third party. He said that valuable items in the vehicle also needed to be identified and recorded. It was during the inventory search undertaken for these purposes that he came across the container referred to as the cookie container.
[11] Ms Spence relies on a passage from Ngan in which the Supreme Court observed that there may be no basis to justify the police opening a container of harmless appearance “on the entirely speculative basis that it may possibly contain cash or valuables”.6 She says that the police needed to justify their belief that the cookie container may have contained cash or valuables that needed to be included in the inventory they were compiling.
[12] Like the Judge, however, I consider the constable was entitled to open the container once he came to the view that it did not contain items consistent with its labelling. He said that he did not know what was in the container before he opened it and I accept that he could not be expected to know what the container held without opening it. However, the constable was not cross-examined as to why he came to the view that it did not contain cookies. It is also not difficult to see how a container of that type might be used to store items of value to Ms Wedge.
[13] There is no suggestion in the present case that the police stopped Ms Wedge because they believed she might be involved in drug-related activity or that the constable opened the container in the expectation or hope that it contained drugs or other illicit material. I therefore see no basis for disturbing the Judge’s conclusion that it was in keeping with the bailment obligations of the police for the constable to search the container once he concluded it was being used to store items other than cookies.
6 Ngan v R, above n 3, at [29].
The warrantless search
[14] Ms Spence next argues that the police could not establish the grounds necessary to permit them to undertake a warrantless search under s 20 of the SSA. Section 20 provides as follows:
20Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences
A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—
(a)to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—
(i)a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii)a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii)a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv)a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b)to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c)to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.
[15] Ms Spence acknowledges that it would not have been practicable for the police to obtain a search warrant given the fact that they found the cannabis bud in the container at approximately 4 am. However, she submits that the police could easily have arranged for the vehicle to be towed to an area where it could be stored securely. They could then have obtained a search warrant to search the vehicle at their leisure over the next 28 days. Ms Spence therefore submits there was no basis on which the police could reasonably have believed that evidential material would be destroyed or concealed if they did not complete the search of the vehicle immediately using their powers under s 20.
[16] As Mr Taane points out for the respondent, the answer to this submission lies in the fact that the police did not intend to take the vehicle back to the police station where they could ensure the vehicle and its contents would remain secure. Rather, they were arranging for the vehicle to be stored by a towage firm that would be given the keys to the vehicle. Persons other than police officers would therefore have the ability to look inside the vehicle. This created the obvious risk that any evidential material inside the vehicle would be lost. The police could not entrust the security of whatever evidential material might be inside the vehicle to the towage firm. It follows that I am satisfied that they were entitled to exercise their warrantless powers of search under s 20 of the SSA.
[17] Even if this were not the case, the police would undoubtedly have had the power to continue their inventory search to ensure they located any items of value belonging to Ms Wedge and/or any items that might be a danger to the towage firm. This would inevitably have led to the discovery of the other drug-related items that the police found when they exercised their power of warrantless search. It follows that, even if the warrantless search was unlawful, the police could lawfully have obtained the evidence by other means.7 There is no suggestion the police were acting in bad faith or that they were deliberately breaching Ms Wedge’s right to be free from unreasonable search and seizure under s 21 of the New Zealand Bill of Rights Act 1990. It follows that exclusion of the evidence would not be proportionate to any impropriety arising out of the warrantless search. The balancing exercise the Court is required to take under s 30(2)(b) of the Evidence Act would therefore result in the evidence being declared admissible.
Result
[18]The appeal against conviction is dismissed.
Lang J
7 See Best v R [2023] NZCA 101 at [25], n 9.