Cultivation charge dropped as entry found illegal

Police have withdrawn a cannabis cultivation charge against a man whose house was illegally entered during a search and rescue operation.

Two Wanaka-based officers went to the defendant’s home on the night of November 23, 2015, after a friend reported  the man and his partner overdue from an overnight four-wheel-drive trip on the Old Man Range.

While searching the property for clues about the couple’s preparedness for a second night in the mountains, officers found a cannabis-growing operation in a spare room.

Defence counsel Fiona Guy Kidd told a pre-trial hearing in the Queenstown District Court this week the officers’ entry into the house, and the subsequent search, were unlawful.Therefore the evidence of cannabis cultivation, and a video interview with the defendant, were inadmissable in a trial.

The prosecution relied on section 14 of the Search and Surveillance Act, which gives police authority to enter a property or vehicle without a warrant when there are reasonable grounds to suspect a "risk to the life or safety of any person that requires an emergency response", and that entry is necessary to "avert the emergency".

The charge was withdrawn after three police witnesses gave evidence and Chief District Court Judge Jan-Marie Doogue conferred with Mrs Guy Kidd and prosecuting Sergeant Rob Mills.

Giving evidence, Sergeant Bruce Terry, of Cromwell, said he activated a search and rescue operation about 9pm, and two constables were sent to the defendant’s house tasked with gathering information about the couple’s intentions and equipment.

Search and rescue volunteers found the couple near their vehicle at 5.45am the next day. Constable Greg Nolet, of Wanaka, said the landlord "invited" him and his colleague into the house.

When the landlord opened the door to a spare room, he immediately smelled cannabis and felt heat radiating from inside.

He told the landlord they were invoking the Search and Surveillance Act to search the room without a warrant.

The room had a false wall made of plywood and a cut-out doorway covered by a blanket. Inside the chamber were 17 cannabis seedlings and five mature plants, with a combined weight of 954g, as well as heat lamps and extraction fans.

Judge Doogue said the prosecution could not rely on section 14, or common law powers, to justify the officers’ entry into the house.

The remaining issue was whether the landlord had given them "implied licence".

Mrs Guy Kidd said she would argue the officers had bullied the landlord into letting them in. They had entered the house unlawfully and  invoked another section of the Act, without reasonable grounds, to search the room without a warrant.

There had been no impediment to getting a warrant from a justice of the peace, and no reason to believe the evidence would be "destroyed, concealed, altered or damaged" unless they seized it immediately.

Justice Doogue told the defendant the two officers were "obviously worried about you and your partner" and the argument was about a technical illegality.

"I don’t want you to leave this courtroom with the perception that I’m critical of them."

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