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• Entry Onto Land
• Entry Pursuant To A Search Warrant
• Seizure Of Property
• A Common Law Power To Seize?
• Power To Search Persons And Seize Articles Upon Arrest
• A General Warrant?
• Search And Seizure Under The Misuse Of Drugs Act 1975

Part III Police powers to enter, search and seize

Entry onto Land

18  A constable may enter another's property:

• with the consent of the occupier (we have discussed in paragraph 3 the extent to which it is appropriate for such consent to be implied);
• if the entry is authorised by statute (the authority may be direct, or empower the issue of a warrant); and
• if the entry is justified by the doctrine of necessity.

19  Many of the statutes already noted in Part II either authorise entry or empower the issue of warrants. In this and the two following paragraphs we discuss the Crimes Act 1961 section 317, which is in the following terms:

20  It may be that section 317 was intended as a comprehensive code putting an end to any need to discuss when a licence to a constable to enter could be implied and when entry by a constable was authorised by the doctrine of necessity. The Minister (JR Hanan) said in his second reading speech:

An instance where the law is uncertain is the power of the police, in cases where they are entitled to arrest a person without a warrant, to enter premises to effect that arrest. Clause 317 provides a short and, I believe, a satisfactory code on this matter that will be helpful to the police and to lawyers.

It may be on the other hand that all that was intended was a comprehensive code in relation to the situation described in subsection (1).⁸

21  Would it add useful certainty if section 317 were converted into a comprehensive code? The difficulty with subsection (2) as a comprehensive statement of the doctrine of necessity is that it is confined to the commission of an offence and does not extend to preventing injury in other circumstances. This could be simply fixed by substituting a new subsection (2) in these terms:

We invite comment on:

• such a change to subsection (2);
• the addition of a subsection to the effect that a constable has a licence to enter land to communicate to the occupant;
• the addition of a subsection to the effect that, subject to the express provision of any other statute, section 317 is a comprehensive code precluding any other justification of entry based on necessity or implied licence.

An arrest warrant carries with it the power to enter (Summary Proceedings Act 1957 section 22(2)). Section 317(1) of the Crimes Act 1961 is concerned with warrantless arrest. Should there be a power to enter to effect a warrantless arrest in circumstances other than those described in section 317(1)(b), which is confined to fresh pursuit and offences on the premises? Should there be a right to enter to arrest without warrant where the offence has not been committed on the premises but there is a reasonable fear that if not immediately arrested the person will disappear? Such a change in the law could be effected by adding to section 317(1) a new paragraph:

Entry Pursuant to a Search Warrant

22  The power to issue a search warrant contained in the Summary Proceedings Act 1957 section 198 exists only in respect of an offence punishable by imprisonment. It is clear that search warrants (which have the effect of authorising trespasses) should not be available in respect of trivial offences.⁹ It is equally clear that a bright-line rule is needed because the power to issue search warrants is vested not only in District Court judges but also in lay justices and registrars. It is arguable, however, that the "punishable by imprisonment" test is inappropriate. Particularly in the light of the modern view that imprisonment should not be lightly imposed and should be confined to more serious offences with an emphasis on those involving violence, the availability of imprisonment as a penalty is likely to reduce rather than increase. In any event, the answer to the question in relation to any given offence of whether imprisonment should be available as a penalty, is based on factors that are not necessarily appropriate to determine whether a search warrant should be available.¹⁰ So, we invite consideration of whether the jurisdictional basis for search warrants should be changed. It may be, for example, that an appropriate solution would be for section 198 to provide that a search warrant is available if the offence is punishable by imprisonment or by a fine of $5,000 or more. We seek the help of views on this topic.

Seizure of Property

23  In the absence of consent a constable may seize property as evidence:

• as an incident of the arrest of a suspect;
• pursuant to the valid execution of a search warrant issued pursuant to the Summary Proceedings Act 1957 section 198 and containing a power to seize property; or
• pursuant to some other statutory authority; or
• if the property has been abandoned.¹¹

Issues can arise as to whether items seized fall within the description contained in the warrant.¹²

A Common Law Power to Seize?

24  Has a constable an additional power to seize goods obviously evidencing an offence and chanced upon in the course of a lawful search, but (where the search is in terms of a warrant) not referable to an offence for which the warrant was issued or (where a lawful search without a warrant is possible) not constituting evidence of an offence of the class in relation to which the power to search without a warrant exists? For at least a century the orthodox answer to this question in New Zealand has been that there is no such power.¹³ But the Court of Appeal in McFarlane v Sharp & Another said this:

It seems to us that the matter might well be examined. It is of course necessary to protect the citizen against the possibility that police officers, putting forward some plausible pretext for obtaining a search warrant, may use the opportunity thereby given to enter private premises and "have a look" in the hope that some evidence may there be found of some crime of which as yet there is no suspicion against the occupants. But against this danger which is a real one, and which is clearly to be remembered by the Legislature throughout, there must be set the possibility of the kind of case in which, searching premises (for instance) on a charge of bookmaking bona fide put forward, the police discover cogent evidence of participation by the occupiers of the premises in some more serious crime, such as (for instance) armed robbery. Are they because the occupier or occupiers of the premises happen not to be personally present at the moment, and therefore cannot be arrested, to be prohibited from taking this material into their custody? The matter seems to be one which is worth some careful examination. The principles which have commended themselves in greater or less degree to English and Australian Courts may be found adverted to, at least in part, in England in Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299; [1968] 1 All ER 229 and Ghani & Ors v Jones [1970] 1 QB 693; [1969] 3 All ER 1700, and in Australia in R v Tillett & Ors, ex parte Newton (1969) 14 FLR 101. In Canada there are the cases of Norland Denture Clinic Ltd v Carter (1968) 5 CRNS 93 and Re McAvoy (1970) 12 CRNS 56, to which we were referred by Mr Gazley. Last but not necessarily least we mention the thoughtful article of Mr L H Leigh in (1970) 33 MLR 268, in the last two paragraphs of which some of the legislative problems are indicated.¹⁴

In R v Power¹⁵ the police obtained a warrant to search the appellant's storage unit for cannabis and associated drug paraphernalia. In the course of their search they also found and seized methamphetamines, stolen property, and an assortment of firearms and ammunition, which additional items provided evidence for further charges. The Court of Appeal said this:

Mr France accepted that this case did not require re-examination of the New Zealand position exemplified by McFarlane v Sharp. We agree, but record our view that a fresh look at this question is warranted. The facts of this case provide a graphic example of a situation where seizure of items, not covered by the terms of a valid warrant, but patently stolen goods, should be permitted at law.¹⁶

25  So, we invite comment on the issue whether it should be lawful for a constable who is lawfully in any place to seize any article that the constable believes is either:

• the fruit of a crime (as in the case of stolen goods); or
• the instrument by which a crime was committed (for example, a murderer's blunt instrument); or
• material evidence that any person has been party to a commission of a crime (such as a blood or semen stained article of clothing).

In considering this issue it will be necessary to take into account the existence of powers of seizure upon arrest. We are, at this point, discussing only situations where there is no arrest.

26  A suitable model might well be the United Kingdom Police and Criminal Act 1984 section 19 which provides as follows:

Another example is the Canadian Criminal Code section 489 which is in the following terms:

Power to Search Persons and Seize Articles upon Arrest

27  The Police Act 1958 section 57A so far as relevant provides as follows:

28  It will be seen that subsection (5) carefully preserves common law rights of search. It seems clear that some such rights do indeed exist.¹⁷ But how precisely that common law power should be defined is far from clear. Does it exist outside the period between arrest and the decision to lockup the arrested person? How full a search is appropriate? On this the United States law seems quite clear.

We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment.¹⁸

Does the common law power of search extend to a search of the premises at which the arrest is made?¹⁹

29  It is clearly unsatisfactory that the law in this area should be uncertain. A bright-line rule is called for. A suitable model may be the United Kingdom Police and Criminal Evidence Act 1985 section 32 which provides as follows:

It has been held in England that this provision does not displace the common law power.²⁰ Any New Zealand statutory provision should (by contrast) be comprehensive and expressly exclude any common law powers.

A General Warrant?

30  We draw attention to section 487.01 of the Canadian Criminal Code that authorises certain judges in courts of superior jurisdiction to:

... issue a warrant in writing authorizing a police officer to, subject to this section, use any device or investigative technique or procedure to do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person's property ...

To understand this it is necessary to be aware that Canadian Charter jurisprudence does not distinguish between the unreasonable and the unlawful, so that section 487.01 gives the courts carte blanche to approve methods of entry, search or seizure that without such approval would be unlawful. There is a requirement for the judge to be satisfied that it is in the best interests of the administration of justice to issue the warrant and that there is no other provision in the Code or any other Act of Parliament that would "provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done". The provision makes it clear that the procedure may not be used "to permit interference with the bodily integrity of any person" (subsection (2)). We invite consideration of whether a comparable provision (substituting "unlawful or unreasonable" for "unreasonable") would be appropriate in New Zealand. As mentioned in the Introduction, one advantage of such a provision would be to enable law enforcement officers to take advantage of technological improvements as they become available without the need (if they were or might not be permitted under existing law) to await specific legislation.

31  There are New Zealand cases in which it has been argued of an investigation technique that it constitutes a "search" within the meaning of the New Zealand Bill of Rights Act 1990 section 21 and that, though not unlawful, it is unreasonable.²¹ Arguments for exclusion of evidence on those grounds were rejected by the Court of Appeal in R v Fraser²² and R v Gardiner²³ both video surveillance cases in which it was held that the investigation was lawful and reasonable. If the reasonableness requirement of section 21 is to remain, another use of such a provision, as we discuss in the previous paragraph, would be to enable the police to get Court approval in advance of the investigation activity (which extended over three months in Fraser, and six-and-a-half months in Gardiner) rather than having law enforcement resources wasted in obtaining evidence that is eventually found to be unusable.

Search and Seizure Under the Misuse of Drugs ACt 1975

32  The Misuse of Drugs Act 1975 section 18 provides as follows:

It will be noted that the broad effect of subsection (1) is to authorise the search of any person found on premises named in a search warrant issued under the Summary Proceedings Act 1957 section 198 in respect of an offence under the Act. Subsection (2) permits a search without warrant of premises where certain classes of controlled drugs are reasonably believed to be. Subsection (3) permits detention of persons, their search, and seizure of controlled drugs found where there is reasonable grounds to believe that there is possession of the same classes of drug as those to which subsection (2) applies.

33  Two issues arise. First, there is a criticism of the hierarchy of risk of harm reflected in subsections (2) and (3). It is a little difficult to understand why these powers exist in respect of cannabis plants (to be found in Part I of the Third Schedule) but not (for example) in respect of metamphetamines (to be found in Part II of the Second Schedule). Nor do the powers exist in relation to precursor substances (to be found in the Fourth Schedule).

34  Secondly, although the statute provides machinery for the classification of drugs to be changed without the need for statutory amendment, that machinery (to be found in sections 4, 4A, 4B and section 5AA (which establishes the Expert Advisory Committee on Drugs)) is in practice very slow and ponderous. There is (it is claimed), as a consequence, too slow a response to the newly designed drugs coming onto the market. There is (for this reason) too long a period during which users are at risk of harm (in some cases up to and including death) from newly available drugs before the wheels complete their slow turning and such drugs are added to their proper place in the statutory lists.

35  We invite submissions on whether the Misuse of Drugs Act 1975 needs to be overhauled to meet these points, and if so, what are the changes to be made.