Latu Selu was acquitted of charges, including possession of methamphatamine due to an unlawful search by Tonga Police, ruled a Supreme Court judge who found there was a deliberate disregard of the law.

Justice Langi in a verdict on February 15 acquitted the accused on two counts of possession and interference with evidence.

The alleged offence occurred on April 10, 2019.

The judge said, the first witness was Police Officer Vi, an experienced police officer for 13-years. He led the search without a warrant to a house of Siua Holani, where the accused was staying in Hala-'o-vave.

Officer VI said that at around 11:20am, police received information about the accused and illicit drugs.

He then put together a search team to go to this house. When they arrived at the house, the Tactical Response Group (TRG) first entered and Officer VI with the rest of the team followed.

The accused was inside the living room with a woman and two other men. The TRG made all of them lie down on the floor, before Officer Vi informed them that the police were there to conduct asearch without a warrant in relation to illicit drugs.

While Officer Vi was still talking, one of the officers shouted that there was something inside the accused's mouth. Officer Vi pried the accused's mouth open and managed to take out a small plastic bag containing methamphetamine.

He said that this was one of the reasons the police needed to act quickly and search without a warrant was so that drugs would not be destroyed.

The accused was asked what the contents of the bag were and he did not say anything. The accused was then informed he was charged with possession of methamphetamine.

The Court heard, police then carried with the search in the living room where they found small straws about an inch in length. Both sides of the straw were closed and he opened one side and found methamphetamine inside.

They found a total of 10 straws with drugs inside in the area where the accused had been sitting and when asked who the straws belonged to, he said that the straws belonged to him. 

Police also found a scale and empty packs on top of a table inside the living room. The illicit drugs found were recorded on the Search List.

Officer Vi reported the results of the search without a warrant to the Magistrate’s Court.

The judge said, in cross-examination Officer Vi said he did not remember the person who had given him the reliable information he had received.

He also could not remember whether the search was done during the week or in the weekend. 

When it was put to him tha tit was on a Thursday morning and that a warrant could have been obtained, he stated that at that time the Magistrate would have already been in court.

Upon further probing from the defence counsel, he hesitantly agreed that a warrant could have been obtained, if he had wanted to get a warrant. He also agreed that he had not cautioned the accused before asking who the straws belonged to, said the judge.

The accused did not give evidence or call evidence but his counsel Tu'utafaiva proceeded with closing submissions, that included that the search without a warrant, was unlawful.

He said police failed to ensure that the requirements of sections 23 and 24 of the Illicit Drugs Act were complied with. In addition, there was no evidence to justify the immediate exercise of the power to carry out a search without a warrant. 

The defence counsel submitted the Crown had also failed to provide any physical evidence or any photographs of the items seized during the search, and that the items seized should therefore not be allowed into evidence.

On the other hand, the Crown Prosecutor submitted that the search was lawful because police believed that they needed to act quickly.

He said in the evidence of a Police Officer 'Akau'ola, this was the nature of such information relating to drugs, which required the police to act quickly in case the drugs were destroyed.

Lawless search

The first issue in this case was whether or not the search carried out by the police was lawful or not.

The judge said, firstly, the protection of citizens from arbitrary searches is entrenched into the supreme lawof our country in section 16 of our Constitution, which states premises cannot be searched without a warrant.

In this case, the legislation relied upon by police to search without a warrant is section 24 of the Illicit Drugs Control Act, which states, 'search and seizure without warrant in emergencies'.

A police officer may exercise any of the powers in section 23 without a warrant, if the grounds for obtaining a warrant under that section exist. The critical requirement here is that there must be 'reasonable grounds' to suspect that there is in or on any place an illicit drug, she said.

However, in this case the judge was not satisfied that the police had 'reasonable grounds' to make the call to conduct a search without a warrant.

"Simply saying that an informant had said that the accused was selling illicit drugs is not enough to give the police a reasonable ground to make the call to conduct a warrantless search. Neither is saying that they had used this informer in previous cases where illicit drugs were found."

No evidence was submitted to support that statement. Police did not first check to see whether the information was true. No one had gone to carry out a surveillance of the area or the house.

Additionally, the call was received at around 1l:00am during working hours. Officer Vi and Officer 'Akau'ola conceded that this was a working day and the Magistrate’s Court was open. However, the excuse given for not getting a warrant was because the Magistrate was in court. There was no evidence that the police had checked to see& whether a Magistrate was available. The police had simply made the call to conduct the search based on a phone call stating that the accused was selling drugs, said the judge.

“I must say that I was not at all impressed with the conduct and demeanour of Officer 'Akau'ola, when he gave evidence and I did not find him to be a credible witness."

In cross-examination, he was asked whether he had recorded the information given to him in the action diary. He said no and was asked why he had not recorded it. He replied that it was up to him whether he wanted to record it or not.

"He was evasive and defensive, which I found quite unprofessional for an experienced officer."

The judge further said that Officer Vi's evidence also did not help the Crown's case. 

In cross-examination, he could not give a reasonable explanation as to why the police had failed to check whether the information given to them was correct before making the call to conduct a warrantless search. 

"At one point, he stated that the search was lawful because illicit drugs were found. This is wrong and the police need to understand that just because illicit drugs were found does not make the search 'without a warrant' lawful as that is subsequent to the decision to search without a warrant."

Officer Vi also conceded in cross-examination that a warrant could have been readily obtained. It is therefore puzzling why he did not obtain one if he knew that one could be have been obtained.

Police search

In addition, the judge said that a search warrant specifies the name of accused persons and the area that is to be searched.

Police cannot search other properties owned by the accused unless they had lawful reasons to do so. By being specific in what can be searched, the conditions of the warrant protects both the rights of the individual and the integrity of the investigation. 

A warrantless search on the other hand, gives the police much wider powers as to the areas they can search and, in my view, a more stricter approach should be taken to searches conducted without a warrant. There needs to be an appropriate balance between the need for police agencies to investigate crime and the protection of individual rights, said the judge.

"Unfortunately, Police in Tonga are now frequently using warrantless powers too readily, for example, by misapplying the reasonable grounds to believe threshold where that is required before a particular search may be conducted. 

Police need to understand the exceptional nature of warrantless searches and use them only in exceptional cases. 

Indeed, the heading of section 24 of the Illicit Drugs Control Act is 'search and seizures without warrant in emergencies', clearly tells us that the circumstances must be deemed an emergency. 

The underlying rationale for having warrantless powers is to allow enforcement officers to respond to urgent situations. In this case, I do not believe that the circumstances of this case can be deemed an emergency to justify a warrantless search, she said.

"However, it seems as if the police are still taking these exceptional powers to search without a warrant very lightly and which has resulted in the courts refusing crucial evidence.

This is rather disappointing as the work the police carry out, especially the Tactical Response Group and the Drugs Enforcement ;Taskforce is of vital importance for the protection of our community and the fight against this war on drugs that the country is currently facing."

The judge then ruled that the search without a warrant in this case was unlawful.

"I find that there was a deliberate disregard of the law and a search warrant could have easily been obtained."

While the judge accepted that the evidence is important and the possession of a Class A drug is a serious offence, she did not believe that this overrides the fact that the police in this case deliberately ignored the law and proceeded to carry out a warrantless search without reasonable grounds to do so. 

She then considered the evidence on the finding of methamphetamine should be excluded and the charges against the accused was therefore not proven. 

On the interference charge by trying to swallow evidence it was clear the accused was trying to destroy evidence, when put the item in his mouth and tried to swallow it. If the search was ruled lawful, I would have convicted him of this charge.

However, the search without a warrant was unlawful and consequently this charge must also fail, said the judge.

The accused was then acquitted on both counts.