The two constables acted unlawfully and were biased in targeting a specific profile, the judge said. (file picture) Photo: RNZ / Richard Tindiller
Serious charges against two young Māori brothers stopped and searched by police because they looked like gang members have been dismissed, and the officers' actions condemned.
Judge Greg Davis said the two constables acted unlawfully and they were biased in targeting a specific profile when they stopped the brothers and searched their car without a warrant.
The two brothers were reversing out of an Onerahi driveway in Whangārei on 2 January at the same time police were scouring the suburb following reports of a confrontation involving Black Power members and a firearm.
According to a decision by Judge Davis released to NZME, it was suggested over police comms a person suffered a broken hand in the incident and a vehicle description given was of a Mazda Atenza.
Police descended on the suburb and began conducting what was known as "areas", or a search looking for those who may be involved.
When constables A and B, whose names are suppressed, arrived at the scene, those involved in the altercation had left, so they decided to stop all vehicles in the area.
As two youths were reversing out of a driveway in a Hyundai, the police officers blocked their access to the road.
Constable A could not recall if the vehicle was in motion or not. However, he told the Whangārei District Court at a recent pre-trial hearing that he stopped the vehicle by pulling up behind it and preventing it from leaving the address.
The boys, whose names are also suppressed, handed over their licences. The car was found to be warranted and registered, and its occupants were of no interest to the police.
Constable A spoke to the driver through the driver's window, and while doing so, his evidence was that he noticed a bong in the front passenger seat and formed the belief it was used to smoke cannabis.
At that point, he invoked a warrantless search under the Search and Surveillance Act 2012.
During the course of that search, he found a bag under the front passenger seat which had a firearm and ammunition in it. He then invoked a second warrantless search for firearms.
The young men were arrested and charged, and it was the Crown case the firearms formed the basis of its evidence to proceed to trial.
The young men faced possession of firearms and ammunition charges and through their lawyers, Sumudu Thode and Adam Pell, pleaded not guilty.
However, the Crown hit a stumbling block when Judge Davis found a number of flaws and breaches of human rights in the police search.
Under the Land Transport Act, police have the power to stop a driver in order to pursue land transport-related investigations, but Judge Davis questioned the constables' stance that they were stopping "all vehicles".
Constable A acknowledged they were targeting the Black Power gang and acknowledged he had no legitimate reason to be stopping the vehicle under the Land Transport Act.
"I have my doubts every vehicle in Onerahi was being stopped that day," Judge Davis said in his decision.
"It is highly unlikely in my view that if Constable A were to come across a vehicle being driven by an elderly couple, that couple would have been subject to an arbitrary stop and questioning.
"... at what point was 'all vehicles being stopped' in essence all vehicles involving drivers that had certain characteristics being stopped?"
Counsel asked the officer whether it was fair to say the description given by police comms was of Māori men and the men he had pulled over were two young Māori males. The officer said he did not see their ethnicity.
The constable rejected the notion he was targeting Māori, but Judge Davis found he was targeting any person who he suspected might have gang connections.
"It is that bias that drew Constable A to the brothers and their vehicle," Judge Davis said in his decision.
"I do not accept in this instance that the constable was likely to stop every vehicle he came across.
"What was more likely was he would stop vehicles driven by occupants who seemed to fit a certain profile, namely someone he suspected to be a gang member."
He said whether a person was a gang member or not was largely irrelevant.
"In my view, there must be more than suspected affiliation to a gang in order for the police to prevent a citizen from going about their lawful business," Judge Davis said.
"While there can be legitimate Land Transport Act purposes for all vehicles being stopped, like an alcohol checkpoint, this does not fit that category.
"In my view, the impropriety here is significant. I do not accept the stopping of the brothers to be in good faith."
Although the brothers were charged with firearms possession charges, Judge Davis found it ironic police never brought a charge of possession of a bong.
"I accept that the current climate where there is a perception of firearms being prevalent in the community to be one that is of significant concern.
"Those concerns, however, must be balanced against the notion that the police have carte blanche power to stop law-abiding members of the public from going about their business as part of some greater good."
On that day, drivers of a particular profile were being stopped, the judge said.
"Those citizens who were not involved in the incident or for whom there was no reasonable cause to suspect they were involved (other than they happened to fit a certain profile) should not have their lawful rights to go about their business interfered with."
Judge Davis ruled the evidence was improperly obtained and could not be used.
NZME has asked the police for comment.
- This story was first published in the NZ Herald.