Warrantless flat entry, a phone download and a refused lawyer
Tama Rangi faces one charge of possessing methamphetamine for supply. At 6.50 am on 14 March four officers knocked at his flat; his flatmate Hemi opened the door and the officers asked to 'come in for a chat'. Hemi says he was told he had no choice. The officers walked through the flat, found a backpack in Rangi's bedroom, opened it and located 32 grams of methamphetamine and $4,500 in cash. No warrant was obtained and no written consent was recorded. Two days later an officer at the station accessed Rangi's phone, which had been seized from the flat, and copied 380 text messages without any further authority. In the interview Rangi twice said he wanted to speak to a lawyer; the officer kept questioning for 25 minutes and obtained the admission that 'some of it was for my mates'. Rangi has no previous convictions. The Crown says the texts show repeated sales. He wants all of it challenged.
1. Identify the search and seizure issues arising from the entry to the flat and from the examination of the phone, and advise on the realistic prospects of excluding the methamphetamine and the text messages under s 30 of the Evidence Act 2006.
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Two searches, two analyses. The entry is a search for s 21 NZBORA purposes, and so is the download of the phone.
The flat. No warrant and no statutory power was invoked, so the Crown must establish either consent (the consent-search provisions of the Search and Surveillance Act 2012, s 92, require informed consent and advice that the person may refuse) or an implied licence to approach the door. An implied licence to knock and answer does not authorise a walk-through of the flat, and the point was squarely examined in Tararo v R [2012] NZSC 2. Hemi's apparent authority did not extend to Rangi's backpack in Rangi's bedroom. The absence of any record of consent counts against the officers.
The phone. Seizing a device is one thing; extracting its contents is another. Copying 380 messages two days later required a warrant or a specific statutory power, and no urgency is apparent.
Section 30 balancing. The s 30(3) factors include the importance of the right breached (a home entry sits at the high end), the nature and seriousness of the impropriety, whether the evidence was obtainable without it, good faith, and the alternatives available. Here the decisive factor is that a warrant was plainly obtainable during ordinary hours; the officers took the shortcut when there was no need to.
Prospects. Strong for the text messages, moderate for the drugs. Hamed v R [2011] NZSC 101 shows exclusion is not automatic even for a serious breach, so advise in terms of risk rather than certainty.
2. Advise on the admissibility of the interview admission, and explain whether your analysis would change if the admission were the only real evidence of supply intent.
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The right. Section 23(1)(b) NZBORA gives a person arrested or detained the right to consult and instruct a lawyer without delay. The Practice Note on Police Questioning (2007) requires questioning to stop once a suspect indicates a wish to consult a lawyer and to resume only after a reasonable opportunity to do so. The officer did the opposite, twice, over 25 minutes - a deliberate breach.
Section 30. The admission is improperly obtained, so the s 30(3) balance applies. A fundamental fair-trial right was breached deliberately; the admission was taken inside the same window; there is no suggestion the admission would have been obtained anyway; the police had the obvious alternative of pausing. On those factors exclusion is likely.
Sections 28 and 29. Separately, a statement must be excluded if influenced by oppression (s 28) or unreliable (s 29). Twenty-five minutes of continued questioning is unlikely to amount to oppression, and the admission appears voluntary in the ordinary sense; a s 29 argument is weak absent language, intoxication or cognitive factors. So s 30 is the live route.
If it were the only evidence. The balance shifts decisively toward exclusion, because the reliability of the verdict would then rest entirely on a statement obtained in breach of a protected right. Where the Crown also has 32 grams and 380 messages, the court may treat the admission as peripheral and admit it, or exclude it and proceed on the rest. That asymmetry should drive the advice and any plea negotiation.
3. Set out the procedural steps you would take to challenge admissibility, and the practical risks of that strategy.
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Procedure. Challenge admissibility pre-trial under ss 79–80 of the Criminal Procedure Act 2011 rather than at trial. File promptly after the plea, supported by an affidavit from Rangi and legal submissions, and put the disputed facts to the officers in a pre-trial hearing: what Hemi was told, whether consent was recorded, why no warrant was sought, and who authorised the phone extraction. Late applications can be refused, so diarise the filing date and seek the Crown's position early. Seek disclosure first - notebooks, the job sheet, the custody record and the device extraction report.
Risks. (1) A partial win: if the drugs are admitted and the messages excluded, the Crown case narrows but survives. (2) The pre-trial hearing exposes Rangi's account to testing before trial. (3) Exclusion is never automatic; Hamed shows courts will tolerate serious breaches where the evidence is cogent. (4) The Crown may refine its case to rely on evidence you have not challenged. (5) Cost and delay for a client with no previous convictions.
Strategy. Advise in writing on the range of outcomes, resist any plea decision until the admissibility position is known, and keep open a negotiated resolution in parallel with the challenge.