Cannabis Court Case Ruling Has Major Implications
20 February 2002
Court Case Ruling Has Major
General Debate Speech
Nandor Tanczos - Green MP
Last Friday Judge Phil Gittos made a finding in the Auckland District Court that has significant implications for civil rights in this country.
Mr Chris Fowlie and Mr Carl Wanoa had been talking on a street corner at about 1.30am on 17 June, at the same time as a Team Policing Unit was conducting a 'sweep' of K Road in Auckland. The unit approached Mr Fowlie and Mr Wanoa, the police said, because of the way the two men looked at them.
Mr Fowlie says one of the officers asked him if he had anything in his pockets that he shouldn't.
"No," he replied.
"You won't mind me having a look in your pockets then?"
"Actually I do mind."
"Why, do you have something to hide?"
"No, but we are just standing here minding our own business. We shouldn't be subject to this sort of thing."
Sniff sniff... "Oh, I can smell cannabis."
"No you can't," said Mr Fowlie. "You're just making that up."
At this point one of the officers became verbally abusive, invoked the Misuse of Drugs Act and searched him, finding a tin with a tiny piece of cannabis.
In dismissing the charges, Judge Gittos said that:
"If the defendant's version of this encounter is accepted ... Constable Pennington's remarks indicate an intention ... to search the Defendant before any issue was raised as to there being a smell of cannabis, and that the issue was only raised by the Officers when the defendant declined to voluntarily summit to a search."
The Judge said that it is clear that no smell was coming from the tin and that there was no indication that the defendant had recently been smoking cannabis. The clear implication is that the officers fabricated the notion that they could smell cannabis in order to conduct a search.
For many years some people have had to endure arbitrary and humiliating searches in public without warrant by members of the police on the flimsiest of pretences. If you are young, brown or just different, the claim that an officer could smell cannabis was good enough reason. This finding says that it no longer is.
Dr Wayne Mapp asked during question time whether the police would still search people when they could smell cannabis. Very few members of this house will have ever been body searched by the police for no reason. I'm certain Dr Mapp hasn't. Of those few that have been, I predict that most of them are Maori members.
Lets be clear. Not all police use these powers in this way. Some clearly do. The problem is that such use has been tolerated for so long.
Greg O'Connor, President of the Police Association, admitted last year that the Misuse of Drugs Act gives the police arbitrary powers of search. He also said that the reason I had been searched so often as a young man was probably the way I looked led them to think I might have a knife.
He has since attempted to deny that he said it, despite the recall of many of us who were there and despite the Herald reporting his words verbatim.
In response to Judge Gittos, Mr O'Connor was reported as saying that police were justified to search Mr Fowlie and that the finding 'doesn't mean much at all - it doesn't change anything at all'.
Yet the judge's ruling was very clear. He said:
'The circumstances overall leave an uncomfortable perception that the conduct of ... a "sweep" by a Team Policing Unit may involve Officers engineering opportunities to conduct personal searches of persons minding their own business in a public street at random or on a purely speculative basis'.
The Minister of Police told the house today that the Auckland District Police Commander is re-examining practices to ensure the police comply with the law, and that advice being distributed to police throughout the country'.
We can only hope that the police in general hold the Bill of Rights Act in higher regard than the President of the Police Association.