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Police v Posala [2016] WSSC 122 (21 June 2016)

SUPREME COURT OF SAMOA
Police v Posala [2016] WSSC 122

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FERRARI WILLIAMS FRANCIS POSALA male of Ululoloa and Lalovaea
Accused

Counsel:
O. Tagaloa for Prosecution
R. Schuster for accused
Submissions: 15 June 2016

Ruling: 15 June 2016

Reasons for Ruling: 21 June 2016

REASONS FOR RULING OF TUALA-WARREN J IN RELATION TO LEGALITY OF POLICE SEARCH WITHOUT A WARRANT

Introduction

1. The accused has been charged with four offences under the Narcotics Act 1967 as follows;
   1. Possession of methamphetamine (ss7(a) and 18(a)(a));
   2. Possession of marijuana seeds (s 6(b));
      100. Possession of cannabis substances (loose marijuana leaves) (ss7 and 18); and
   4. Possession of utensil for the purpose to commit an offence (s13(b)).
2. The accused pleaded not guilty to the charges.
3. The defence challenged the legality of the Police search without a warrant which resulted in Police finding the substances and utensil for which the accused is now charged. The defence argued that the search was unlawful.
4. The onus is on the Prosecution to prove that the search without a warrant was lawful.
5. This Court ruled that the search without a warrant was lawful and that reasons for that ruling will be given in due course. I now give those reasons.

Evidence

6. The Prosecution called two witnesses and the defence called one witness. Inspector Samau and Panama Tevaga were called for the Prosecution and Constable Onosai Fetuiai for the defence.
7. Inspector Samau headed the Narcotic division in 2015. He says that he received information after 5pm on Friday 21 August 2015 about the whereabouts of the accused and Panama Tevaga, suspected by the Police to be involved with narcotics for some time. He said that the accused and Panama Tevaga move around to different rental houses and Police have not been able to find where they live. The information he received that evening was that they were living at one of the Craig’s flats at Ululoloa. So he directed his squad to meet at 10pm that same night. At that meeting he deployed civilian Police at about 11.30pm to confirm the accuracy of the information and to find out which of the Craig flats in the Craig compound housed the accused and Panama Tevaga. At about 3am, he was informed that someone was putting bags into a vehicle and leaving one of the flats. Civilian Police cars followed that person (discovered later to be the accused) but Police lost him. He then ordered civilian Police to wait at the Craig compound for the return of the vehicle. When the accused returned to the compound, the Police then conducted their search around 5am. Panama Tevaga was inside the flat. Inspector Samau then submitted a Report to the Commissioner within 72 hours as required under the law.
8. Under cross examination, Inspector Samau could not recall the source of his initial information at 5pm. He also said that the time of around 3am when he finally confirmed the accuracy of the information he received that the accused and Panama Tevaga were at this address, there was no time to apply for a search warrant. He would have to find a Registrar who would have to find a Judge at that time. He believed at around 3am that he had reasonable grounds to search once his team confirmed that the person returning in the car was in fact the accused and confirmed the flat in which he stayed. Inspector Samau says that he informed the accused and and Panama Tevaga of the warrantless search.
9. According to Panama Tevaga, not many people knew he lived at the flat at Ululoloa, only a few people like his friends and the person who works on his car. He said he does move around rental properties because of rental periods and did not know the Police were looking for him. When the Police conducted the search, he could not be clear about what was said to him by the Police as everything happened so fast and he was half asleep.
10. Constable Onosai Fetuiai is a police officer called by the defence. He works in the Narcotics division and he was one of two civilian police officers who were assigned to confirm the accuracy of the intelligence that the accused and Panama Tevaga lived at the Craig compound and to find out which flat they lived in. He confirms that he was called after 5pm on Friday evening to meet at Faleata Police K9 unit at 10pm. He was chosen with another to carry out surveillance at Craig’s compound sometime after 10pm to confirm which of the flats belongs to the accused and Panama Tevaga as the compound has many flats. He says a person came out of a flat and put bags into a car and left between 1 am-2am but they did not know who it was at the time. When the car returned, they were then able to confirm that it was the accused. This was around 3am. He showed the accused his identification as a Police officer then he informed Inspector Samau. Inspector Samau arrived and conducted the search with other Police officers.

Law

11. A search without a warrant is provided under section 14A(1) of the Narcotics Act 1967. I set it out in full below;
12. Where:
    1. Under the circumstances that an immediate search is to be carried out; and
    2. There is no time to apply for a search warrant as provided under section 14-

a constable, if he or she has reasonable ground to believe that there is in a building, aircraft, ship, carriage, vehicle, premises or place a narcotic or controlled precursor for which an offence has been committed, the constable, with any assistants he or she may require, may enter and search the building, aircraft, ship, carriage, vehicle, premises or place and a person found therein or thereon as if authorised to do so by a search warrant issued under section 83 of the Criminal Procedure Act 1972 and by section 14(1) of this Act.

13. I provide also s14A(4) which says that a constable exercising the power of search or of entry conferred by subsections (1) and (2) shall identify himself or herself to a person searched and also to a person in or on the building, aircraft, ship, carriage, vehicle, premises or place who questions his or her right to enter and search the same, and shall also tell that person that the search is being made pursuant to the authority of subsections (1) and (2), and he or she shall also, if not in uniform and if so required, produce evidence that he or she is a constable.

Submissions by the Prosecution

14. On the validity of the search without a warrant, Counsel for the Prosecution cited the decision of this Court in Police v Feesago [2009] WSSC 115 (9 November 2009). Vaai J in relation to powers conferred under s.14A said that the powers should only be exercised where there exists an imminent danger of the loss, removal, destruction, or disappearance of the evidence sought in a narcotics if the search or seizure is delayed in order to obtain a warrant.
15. Prosecution in paragraph 10 of their submissions say that factors such as time, place and overall circumstances of the case are significant factors for the Court’s determination as to whether the warrantless search is lawful.
16. The facts they point to are firstly, the accused and Panama Tevaga evading the Police by moving from place to place. They also say the Police had to confirm where the accused actually stays as no information was given about the house they lived in. This surveillance occurred from 10pm-3am. The timing of the information made it impractical for police to apply for a search warrant. The bags that were put into the car when the car left the flat created a suspicion in the minds of the Police that the accused was going to distribute drugs and waiting any longer may be detrimental to the investigation as all the evidence would have been gone.

Submissions by the Defence

17. Defence Counsel submits that a warrant is required in all cases except where there are exceptional circumstances. Those exceptional circumstances are contained in the legislation as being; under the circumstances, an immediate search is to be carried out and there is no time to apply for a search warrant.
18. He submits that the operative word is ‘immediate’ and it means as soon as information arrives to Police, a search must be carried out.
19. Counsel submits that there was also surveillance conducted from 10pm to 3am and it is incumbent on Police to obtain a surveillance warrant under s.3 Police Powers Act 2007. Surveillance means any surveillance. This is because of the high regard for privacy of persons in Samoa and the ratification by Samoa of the International Convention on Civil and Political Rights is further proof of this.
20. He submits that there was ample time to apply for a warrant as information was received at 5pm and the Court is always available for the issuance of warrants. There was also surveillance being done which means that the police had enough time to apply for a warrant.
21. He notes the use of the case of Police v Feesago and says no evidence was adduced to support the belief by Police that there was imminent danger of the loss, removal, destruction, or disappearance of the evidence.

Discussion

22. It must be said at the outset that defence submission in relation to a surveillance warrant is incorrect as to the law. It is only in situations where an interception device or an optical surveillance device or both (those devices defined under the Police Powers Act 2007) is used that the Police may apply for a surveillance warrant. This is all the Court will say about this submission as it is irrelevant to this decision, as no surveillance pursuant to s3 of the Act was carried out.
23. There are two limbs of a search without a warrant which I will assess against the evidence.
24. The first limb is ‘where under the circumstances that an immediate search is to be carried out’.
25. The circumstances in this case warranted an ‘immediate’ search at around 3am in the morning. I say around 3am because that is the evidence which I accept. I accept that the Police had to confirm the accuracy of the information which Inspector Samau received at 5pm. The information was that the accused and Panama Tevaga stayed at one of the Craig’s flats. I accept that between 10pm -3am Friday night into early Saturday morning, Police tried to confirm the accuracy of the information by carrying out surveillance at the Craig compound, a big compound with many houses. This is because they did not know which flat within that compound housed the accused and Panama Tevaga. I accept the information about the accused and Panama Tevaga’s flat was confirmed at around 3am when Constable Onosai Fetuiai confirmed from the accused that his name was Ferrari. Constable Onosai Fetuiai then informed Inspector Samau and a search without a warrant was conducted.
26. Justice Vaai in Police v Feesago says that to comply with section 14A Narcotics Act the police on receiving information from their informers must take steps to verify the reliability and accuracy of the information before they execute a warrantless search. This is what happened in this case from 10pm-3am.
27. The immediacy referred to in s14A is around 3am, not earlier that night and not at 5pm the previous evening.
28. The material time then when an assessment of the second limb is to be done in this case, that there is ‘no time to apply for a warrant’, is at 3am. Once Onosai Fetuiai confirmed the accused name and flat, there was no time to apply for a warrant. Applying for a warrant would entail finding a Court Registrar and a Judge at 3am. This is a difficult and demanding ask.
29. I cite again Justice Vaai in Police v Feesago [2009] WSSC 115(9 November 2009) where he states;

In enacting section 14A, which granted to the police the power to search without a warrant, the objective of Parliament was undoubtedly to ease law enforcement of the law related to narcotics offences. The Court should not be seen to be interfering with that objective. Indeed the Court should consider the interest of society in law enforcement, especially with regard to the prominent and increasing sophisticated illicit drug trade.

30. Justice Vaai goes on to say that the common law has always recognised and demonstrated a respect for privacy by individuals in their own homes. The exercise becomes a balancing of legitimate concerns for effective law enforcement and the common law right to a person’s privacy. He goes on to say that that balance can be achieved by strictly confining section 14A to very special circumstances, and that exigent circumstances which render the prior authorisation impracticable will vary on a case by case basis.
31. I am mindful of this balancing exercise. I find that exigent circumstances existed in this case which rendered prior authorisation impracticable. The time when Inspector Samau had reasonable ground to believe that there was in that particular flat in which the accused and Panama Tevaga lived, a narcotic or controlled precursor for which an offence has been committed, was around 3am in the morning.
32. I accept that the accused and Panama Tevaga have managed to evade Police as in the evidence of Inspector Samau. I accept that they have been known to Police for some time. I accept that although Panama Tevaga did not know Police were looking for him, he did move around from place to place and only a few people knew that he lived at Ululoloa so he established by his own evidence, that he moves around from rental property to rental property. I accept the Police finally tracked the accused and Panama Tevaga to a specific rental property.
33. I accept the evidence of Constable Onosai Fetuiai that bags were put into a vehicle which left the flat earlier that night. It was confirmed to be the accused in the vehicle upon his return at around 3am. I accept that this evidence points to an imminent danger of the loss, removal or disappearance of the evidence sought in this narcotics investigation if the search was delayed in order to obtain a warrant.
34. I found the witnesses Inspector Samau and Constable Onosai Fetuiai to be convincing, credible and clear and their evidence was unambiguous and compelling.
35. In all the circumstances I find that this is exactly the type of case which was envisaged by s14A. The circumstances called for an immediate search and there was no time to apply for a warrant.
36. For the sake of completeness, I am also satisfied that the Police when exercising the power of search and entry in this case identified themselves and informed the occupants of the warrantless search thereby satisfying s14A(4). Both Inspector Samau and Constable Onosai Fetuiai gave credible evidence about this which is preferred to Panama Tevaga’s evidence. Panama Tevaga’s evidence was that he was uncertain about what was said to him as it all happened so fast and he was half asleep.

Result

37. The search without a warrant was lawful.
    

JUSTICE TUALA-WARREN