Police v Feesago [2009] WSSC 115 (9 November 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

GEORGE FEESAGO and WILLIAM RANKIN
Defendants

Presiding Judge: Justice Vaai

Counsel: P Chang and S Rimoni for the prosecution
S Toailoa for the 1st defendant
A Roma for the 2nd defendant

Ruling: 3/11/09
Reasons: 9/11/09

Ruling on the Voir Dire

1. The defendants were charged with offences under the Narcotics Act 1967 following a police search and seizure on the 5th December 2007. Both pleaded not guilty and the trial was scheduled for hearing on the 2nd November 2009.

2. Before the trial commenced on the morning of the 2nd November 2009 defence counsels told the court the defendants will challenge the legality of the police search on the grounds it was unlawful and unreasonable. It was then agreed the court should determine the challenge first.

The Facts

3. The defendant George Feesago is not a stranger to the police. He has for some time been a suspect as a player in the narcotics trade. William Rankin was unknown to the police and was never a suspect.

4. On the 5th December 2007 between 11am and 12 noon Chief Inspector Tanielu of the Criminal Investigation Division section of the Apia Police received a telephone call from a reliable but confidential police informant that the defendant George Feesago was driving a white double cab pickup with the numbers 909 on the rear window; he was driving towards the eastern direction from Vaisigano along beach road, and he was in possession of methamphetamine (ice).

5. With this information coming from a very reliable police informant, Chief Inspector Tanielu immediately sought assistance of the Traffic Section of the police to alert officers on road patrol and in the vicinity of Vaisigano area to assist in locating the said pickup. Detective Inspector Luatimu who was attending to a police investigation at Matautu area with another police Sergeant responded to the call. He has cited the pickup and the defendant Feesago as the driver, who was also well known to the Detective Inspector. Numbers 909 were also confirmed to be written on the rear window.

6. Detective Inspector Luatimu and his police companion followed the defendant Feesago’s pickup truck. Detective Inspector Luatimu was on the passenger’s side communicating with Chief Inspector Tanielu on mobile phones. The Chief Inspector was then traveling in another police car.

7. At the intersection at Matautu, defendant Feesago’s pickup truck turned right and headed south towards Faatoia village trailed by the police car about one hundred meters behind. It then turned eastward and stopped at a dead-end road which goes to the rear of the Apia Park stadium. The police car did not turn left. It continued to travel south but Detective Inspector Luatimu relayed the whereabouts of Feesago’s car to Chief Inspector Tanielu who soon after entered the road to the rear of the Apia Park Stadium and turned around at the Apia Park tennis courts when the Feesago’s pickup truck was spotted beside a house inside the Meredith’s compound.

8. A woman who identified herself as a housemaid approached the police vehicle from the side of the house and in response to a question by the Chief Inspector as to the whereabouts of the driver pointed to an open door on the eastern side of the house. Chief Inspector and police officer Luuga entered the building whilst the other officer stayed outside. After opening several doors into other rooms they finally found the two defendants in a bedroom. Defendant Rankin was sitting on the bed whilst defendant Feesago was sitting on the floor besides the bed, leaning against the wall.

9. Upon entering the bedroom Chief Inspector identified himself as a police officer (he was in plain clothes) and also identified his companion as a police officer. He also informed the two defendants the reasons for entering the house without a search warrant to search for narcotics carried and possessed by Feesago. A search without a warrant was explained when the defendant Rankin inquired about a search warrant. Defendant Feesago was then body searched by Police officer Luuga who removed from one of Feesago’s trouser pants pocket some lollies as well as a plastic bag containing what appeared to be marijuana leaves. He was then informed of his constitutional rights and of the grounds for his arrest.

10. Defendant Rankin was also body searched. At the back pocket of his trouser pant, a mobile phone and what appeared to be a packet of methamphetamine was retrieved. He was informed of his rights and grounds for his arrest. At that moment Rankin went down on his knees and admitted to the Chief Inspector it was methamphetamine. He told the Chief Inspector he did not want his family to know about his involvement in drugs.

11. On a table besides the bed, the police found four glass tubes and what appeared to be marijuana leaves.

12. On the bed where Rankin was sitting was a wrapping paper with the name George Feesago written on it. Placed on the wrapping paper is a small cardboard box with a bottle of gel which was unused but had a hole in the middle from the top to the bottom. It appears the cardboard box has just been unwrapped and the wrapping paper indicated to the Chief Inspector that the cardboard box was sent from overseas. Underneath the table about ten similar bottles of gel with holes through the middle were found.

13. No other room of the house was searched. Other than the bottles of gel, all the substances found in the room were placed in a pillow case and taken outside to where the police and the pickup truck were parked.

14. The two defendants were accompanied outside by the two police officers. The K9 team of the Police Drug Squad has also arrived with a sniffer dog. Defendant Feesago told Chief Inspector Tanielu the pickup truck he drove was his before the vehicle was searched by the dog and its handler. A plastic bag containing what appeared to be marijuana was found in the side pocket of the driver’s door. This packet was also placed in the pillow case together with the other substances found in defendant Rankin’s room and taken to the police station.

Submissions by the Defendants

15. It was conceded that section 14A Narcotics Act 1967 grants to the police the power to search without a warrant if the police has reasonable cause to believe that there is in or on any building, aircraft, ship, carriage, vehicle or place any narcotic for which an offence against the Act has been committed, and under the circumstances an immediate search is to be carried out and there is no time to apply for a search warrant.

16. What was in contention was that the police had ample time to apply for a search warrant given that the police Chief Inspector was alerted before mid-day, defendant Feesago and his vehicle was spotted soon after (about 10 minutes) and was followed. From the moment the information was received to the time the car was spotted outside Rankin’s house the Chief Inspector estimated the time lapse to be about 20 minutes.

17. Given the time lapse of about twenty minutes it was contended by the defendants that the police did not entertain applying for a search warrant under section 14 Narcotics Act which under the Act must be strictly complied with unless there were very special circumstances which prevented the police from obtaining a warrant. No special circumstances existed.

18. And since such circumstances did not exist the search was both unlawful and unreasonable. To put it another way, since it was not impracticable to obtain a warrant the search was therefore unlawful and unreasonable.

Submissions by the Police

19. It was argued for the police that since the informant was a reliable police informant and the defendant Feesago has been a suspect for sometimes; the police accordingly had reasonable grounds to believe that the defendant had in his possession drugs suspected to be methamphetamine. Police suspicion was confirmed when the vehicle described by the informant was cited soon after driven by the defendant in the direction given by the informant.

20. Since the defendant was on the move and the intended destination of the defendant could not be determined at the time, it was not feasible to obtain a search warrant. In the circumstances it was not practicable to obtain a search warrant. Furthermore the manner in which the search was conducted was reasonable.

Discussion

21. For the purpose of this ruling it will be presumed that the police had reasonable grounds to believe that the defendant Feesago had physical possession of narcotics, suspected to be methamphetamine, on the 5th December 2007 while he was driving eastwards in a white double cab pickup. One of the pre-condition for a search to be reasonable is that the police must take steps to verify that the information given by the informant was reliable. Police informant who tipped the police on the 5th December 2007 was a confidential reliable informant, a fact which neither defendant contested.

22. For the purpose of this ruling I also accept the following facts:

(i) when the defendant Feesago was spotted driving eastward in the vehicle described by the informant to the police, the police had no idea of the place where the Feesago was heading to.

(ii) although most roads and streets in Samoa are now labeled, the houses are not numbered.

(iii) when the police spotted the pursued pickup parked outside the house at Levili, police were ignorant as to the occupier of the house. In particular the police had no idea that the defendant Rankin was in the house. All that was known was that the house was inside the Meredith’s compound.

(iv) The search conducted by the Chief Inspector and his assistant was confined to the bodies of the defendants and the room of the house the defendants were found.

(v) The search conducted by the dog and its handler was confined to the pick-up vehicle driven by the defendant Feesago.

23. The common law had always recognized and demonstrated a respect for privacy by individual in their own homes. A man’s home is his mansion. Intrusion by police of private homes and properties could only be sanctioned by a warrant executed by a judicial officer. Prior authorization was a precondition for a valid search and seizure.

24. In enacting section 14A, which granted to the police the power to search without a warrant, the objective of Parliament was undoubtedly to ease 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.

25. Bearing in mind the objective of section 14A, the court should balance legitimate concerns for effective law enforcement with the common law right to security against unreasonable search and seizure. That balance can be achieved by strictly confining section 14A to very special circumstances. A similar approach was adopted by Sopinka J in the Canadian Supreme Court decision in R v Grant [1993] 3 SCR 223; which decided interalia the constitutionality of a provision in the Narcotics Control Act of British Columbia which authorized warrantless search, and whether the provision violated the Canadian Charter of Rights and Freedoms which secured citizens against unreasonable search and seizure.

26. Adopting the reasoning in R v Grant (supra), section 14A Narcotics Act 1967 should be narrowly construed. The powers conferred by section 14A to search without a warrant should only be exercised "where there exists an imminent danger of the loss, removal, destruction, or disappearance of the evidence sought in a narcotics investigation if the search or seizure is delayed in order to obtain a warrant." R v Grant (supra).

27. Exigent circumstances which render the prior authorization impracticable will undoubtedly vary on a case by case basis. The capability of a motor vehicle to move away rapidly and frustrate the investigation will not in all circumstances trigger the application of section 14A if the circumstances create a situation which make it practicable to obtain a search warrant. The exercise of police powers under section 14A should be narrowly restricted and be rarely exercised in the face of the common law rule against unauthorized intrusions onto private property.

28. When the police cited and followed defendant Feesago’s vehicle it was moving from the town area towards east. I accept the evidence of Chief Inspector Tanielu that his men were out of the office on other matters when he received the call that the police suspect was carrying methamphetamine. He relied on the traffic section of the police to locate and follow defendant Feesago’s car. He got two officers and drove the same direction whilst keeping constant contact with Detective Inspector Luatimu on the mobile phones.

29. Chief Inspector thought about a search warrant as the vehicle the defendant was driving has to be searched. When located the vehicle was outside a house inside the Meredith’s compound. There was no time to apply for a warrant. The suspected carrier of methamphetamine must be found otherwise as he feared, the evidence might be lost, hidden or disappeared.

30. If a warrant was to be applied for, as the defence suggested there was ample time to obtain one, it would mean the Chief Inspector would have to swear an affidavit in support of the application as he was the one who received the phone call from the informer; he would have to describe the house and its owner or occupants, which would mean making further inquiries as the house cannot be identified by a number or street name. It would also mean he has to leave the scene to swear the affidavit unless the affidavit was taken to him which also means the police would have to take along either a solicitor, registrar, judge or other persons described under section 14 Oaths Affidavits and Declarations Act 1963 to swear the affidavit. Undue delay detrimental to the investigation would be caused.

31. In my view exigent circumstances existed which made it impracticable for the Chief Inspector to apply for and obtain a search warrant. Given the limited resources available to the police, he acted in good faith when he reached the conclusion to search without a warrant. And in conducting the search, he first identified himself and his assistant, informed the defendants of the reasons for their entry without a warrant and the resulting search and seizure was confined to the room the defendants were found and the car driven by defendant Feesago.

Conclusion

In the circumstances I find the warrantless search to be both lawful and reasonable.

JUSTICE VAAI