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Police v Silipa [2025] WSDC 3 (22 May 2025)

IN THE DISTRICT COURT OF SAMOA
Police v Silipa [2025] WSDC 3 (22 May 2025)

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

A N D :

SOLOMONA SILIPA of Vaivase-uta
Accused

Counsel: Corporal Ken Komiti for Prosecution
Mr. Q. Sauaga for the Accused

Hearing: 26 & 27 March 2025

Decision: 22^nd May 2025

RESERVED DECISION ON PRE-TRIAL ISSUE – SEARCH WITHOUT A WARRANT

Issue

1. This is a pre-trial challenge by the accused as to the legality of the search without a warrant conducted by Police pursuant to section 14A of the Narcotics Act 1967 (the ‘Act’).

The Law

Possession of Utensil

2. Section 13(b) of the Act provides;
   • 13. Miscellaneous offences - A person who:
     • (a)...
     • (b) has in his or her possession a needle, syringe, pipe or other utensil for any such purpose of the commission of an offence; or
     • (c)...
     • commits an offence and is liable to imprisonment for a term not exceeding 7 years or a fine not exceeding 200 penalty units or both.
3. Section 7(b) of the Act further provides:
   • 7. Possession and use of narcotics – (1) No person shall:
     • (a) knowingly be in possession of, or attempt to obtain possession of, a narcotic, or;
     • (b) knowingly procure, consume, smoke or otherwise use, a narcotic; or
     • (c) attempt to supply or administer, or supply or administer, a narcotic to or on any other person, or otherwise deal in the narcotic in any other manner, – unless expressly exempted under subsection (2).
4. The law as to search without a warrant has been discussed in several Supreme Court cases^[1] and appears to be settled but distinguished on the facts related to each case.
5. In Police v Feesago, Justice Vaai ruled the search without a warrant was lawful and reasonable. The brief facts are that on 5 December 2007 between 11am – 12pm, Chief Inspector Tanielu received information from a reliable Police informant about the defendant driving around in a white pick-up truck and had in possession methamphetamine. Jusice Vaai found that there were “exigent circumstances existed which made it impracticable for the Chief Inspector to apply for and obtain a search warrant”. For example, Police had no idea where the defendant was and where he was heading; when he was finally spotted, Police had no idea who owned the house nor who was inside taking into account the particular circumstances unique to Samoa.
6. Justice Vaai accepted the evidence of Chief Inspector Tanielu that “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”.
7. Justice Vaai took into account that a man’s home was his mansion and measures must be in place to protect the privacy of a man’s home from unreasonable search and seizure. In saying that, His Honour also had regard that Parliament enacted section 14A to assist law enforcement with the increase of narcotics offences and concluded:
   • 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...
   • 26. ...... 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).
8. In Kalekale v R^[2], the New Zealand Court of Appeal held that although the ‘warrant preference rule’ is best practice where it can be followed, a “realistic and practical approach is, however, required.” It appears that a realistic and practical approach was taken by Justice Vaai in assessing the circumstances and conditions particular to Samoa in concluding that the warrantless search was lawful:
   • 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.
9. Police found marijuana leaves in a plastic bag in the trouser pocket of Feesago as well as a plastic bag with marijuana leaves found inside pocket of the drivers door of Feesago’s pick-up. Mr Rankin questioned if there was a search warrant. Chief Inspector Tanielu informed him the search was authorised pursuant to section 14A. Mr Rankin was also searched and a packet of methamphetamine was found in a plastic bag inside his back pocket. There were four glass tubes found on a side table in the room where the defendants were found and marijuana leaves.
   
10. Justice Vaai made a point to emphasize that the search was limited to body searches, the one room where the two defendants were found and Feesago’s pick-up truck. This was perhaps to highlight that the nature of the actual search was evidence a search warrant may not have been necessary. Respectfully, I think it overlooks the fact that in order to get into a room of a house and do body searches, the officers would have to enter the house from any of its entry points. What happens at the point of entry into any premises, place or vehicle is where a search is questioned whether the warrantless search was lawful or not. It matters not, in my respectful view, whether only body searches were conducted and the whole house was not searched. The search of any person, premises or vehicle must be based on an empowerment by legislation to do so require via an authorized search warrant or a search without a warrant as provided under section 14A.
11. In Police v Posala, Justice Tuala-Warren found that a search without a warrant was lawful. The accused Posala and another known associate Panama Tevaga were suspected narcotics offenders under Police surveillance for some time. At 5pm on 21 August 2015, Inspector Samau received information, from a source he could not recall during the time of the trial, that the suspects were staying at one of the Craig family rental houses at Ululoloa. The Graig family compound is a well-known family location in the Ululoloa area. Inspector Samau mobilised his team to gather at 10pm and directed some of his team in civilian clothes to do surveillance and confirm which rental house the suspects were staying in. At about 3am, the accused was observed at one of the flats putting bags into a vehicle and drove out. He returned at about 5am to the same flat and it was then that Police entered the scene and conducted a warrantless search.
12. Justice Tuala-Warren accepted that the material time was 3am when the information was verified that the suspects were staying at a specific rental house in the Graig compound at Ululoloa. The Posala and Feesago cases are distinguished by these main facts:

Inspector Samau in Posala received information at 5pm from a source he could not remember and waited until 3 – 5am the following morning to conduct a warrantless search because he was waiting for information to confirm which rental house the suspects were staying in.

In Feesago, Chief Inspector Tanielu received information from a reliable Police informant between 11am – 12pm and conducted the search within an hour or two of receiving the information given the defendant Feesago was on the move in his truck which was suspected of carrying methamphetamine.

13. Inspector Samau testified that he did turn his mind as to whether or not it was practicable to obtain a warrant but was hindered by the fact there was not enough information as to which rental house in the Graig’s compound the suspects were occupying. However, considering the particular circumstances hindering the identification of Samoan residential properties as alluded to by Justice Vaai in Feesago, it was reasonably open to Inspector Samau to act on information, though from an informant he could not remember, to obtain a warrant immediately after 5pm. Otherwise, Inspector Samau could have also decided not to do anything given the information seemed somewhat unreliable.
14. However, the fact that Inspector Samau decided to act on the information, being familiar with the local circumstances, it did not matter in my respectful view, which of the Graig’s rental house at their Ululoloa compound the suspects were occupying. The facts suggest there was sufficient information placing the suspects in a specific location. It was reasonably open to Inspector Samau to turn his mind to apply for a warrant as there was time to apply for one given there was no good reason to fear that the evidence might be lost, hidden or destroyed.
15. The unreasonableness factor of the search without a warrant would have been a situation where Inspector Samau, not being able to identify the exact house, went about searching all the houses within the Graig family compound. That was not the case as Inspector Samau’s team were still conducting surveillance on the compound and would have reasonably waited to confirm the actual premises with the authorised search warrant in hand.
16. In Pesamino, Sergeant Lelei based at Fagamalo Police Post, received information via phone from an unidentified source in the early hours of the 8 June 2024 that the defendant Letasi Peter was in possession of illegal drugs at his home at Fatausi. Sergeant Lelei informed Assistant Commissioner Papalii Eneliko who gave the instruction to investigate the information. The defendant was a person of interest for a while and had been the local topic of conversation relating to illegal drugs.
17. They attended to the house of the defendant the same morning at Fatausi and knocked 4 times before Letasi opened the door. Sergeant Lelei informed Letasi of the reason for coming to his house. Letasi asked for a warrant and was notified that the search was done under legislative powers to search without a warrant for narcotics. The search found in Letasi’s premises methamphetamine.
18. Although I agree with the factual conclusion that there was time for Police to obtain a search warrant despite the fact that there was no resident judge in Savaii, I am of the view that Police had reasonable grounds to believe that there was located on Letasi Peter’s premises narcotics.
19. It is unfortunate that the information from the informant was relegated to trivial and unreliable on the grounds that the informant was not known to Police, had not left a phone number, that there was no evidence from the informant that the suspect was going to be tipped-off and that there was no evidence from the informant or otherwise of concern that the narcotics would be moved or disposed of. In most of the cases involving illegal substance including Posala cited above, Police receive anonymous tip-offs and it is best practice to attend whether it is credible or not to conduct an investigation.
20. The particular circumstances dictate as to whether a warrant is to be preferred or the circumstances do not permit a warrant to be practicable. In Feesago’s case, a warrantless search was deemed appropriate within about two hours of receiving the information. In Pesamino, there was time for a search warrant to be sought. However, I am not persuaded with the fatal assessment that the fact the informant was not known or not a usual reliable source to Police, did not leave a number, that there was no evidence from the informant or otherwise that the suspect was going to be tipped-off and/or was concerned that the narcotics was soon to be disposed of or moved was sufficient to conclude that there was no reasonable ground for Police to suspect that there was narcotic in the possession and/or control of Letasi Peter.
21. This led to the conclusion that it was insufficient for Police to formulate reasonable grounds to believe of the presence of narcotics despite the fact that the suspect was a known person of interest to Police. This evidence was watered down on the basis that it was mere village rumours, speculation and gossip. That may be so but it is still information that in many circumstances resulted in credible break-through in illegal substance cases. Given our circumstances in Samoa, it is not necessary for an informant reporting criminal activity to be known and reliable or even to identify themselves for whatever reason. It would be reasonable to pause and consider the information from an informant in making a determination as to act on it or not. But it is at the end a determination by Police especially if the suspect has been a person of interest and this was the breakthrough Police were looking for.
22. In the Pesamino case, the discovery of narcotics was exoneration of Police intuition and the credibility of the informants tip-off about the identity of the accused and the location. Unfortunately, the search was found to be unlawful and unreasonable because of the:
    • “... failure by police to appreciate the sanctity of a person’s home and their right to privacy. It shows a cavalier attitude towards people’s entitlement to not be subjected to undue disturbance, anxiety or coercion in their homes except on a proper legal basis”^[3].
23. It is to be pointed out that the sanctity of a persons home and their right to privacy is not absolute. The privacy of a home is not haven and should not be made a haven for criminal activity such as the possession, consumption or dealing in illegal substances. In paragraph 25, Justice Clarke said:
    • “Although methamphetamine was found by police, this does not obviate the finding that at the time, there was no reasonable and credible basis for police to believe there was “fualaau ma vailaau faasaina” on Peter’s property”.
24. Respectfully, I disagree. There was no good reason for Police to disregard the information because the defendant had been a known person of interest for some time. It is unfortunate that the extensive experience of Sergeant Lelei and his officers in narcotics matters was relegated and confined to a “lack of appreciation” and a “cavalier attitude”. Their reliance on the community to assist in law enforcement whether anonymous or not had been dealt a harsh blow. I am reminded of Justice Vaai’s words in Feesago: “The Court should not be seen to be interfering with the objective of Parliament to ease enforcement of law related to narcotics offences”^[4].
25. Respectfully, given the local circumstances particular to law enforcement in Samoa, there was reasonable and credible basis for Police to believe there was narcotics in the possession of the accused. There is no legal requirement that an informant has to be known or not as in the Posala case. Although it is ideal that the information be sufficiently credible, there is no legal requirement that it has to be beyond doubt bearing in mind that extra measures can be taken, given the circumstances of each case, to improve on the information.
26. Turning to section 20(2) of the Evidence Act 2015 whether to admit improperly obtained evidence, the conclusion to exclude the evidence was premised on the following facts:
    1. that the evidence of the discovery of the methamphetamine was “brief and general” but no evidence as to the circumstances concerning discovery nor the “quality” of the methamphetamine evidence and

2. the conduct of the search was not deliberate nor done in bad faith but was reckless and did not involve any apprehended or actual danger to Police or others or necessitate any urgency

27. Respectfully, unless the court finds on the evidence that the discovery of methamphetamine was doubtful, fabricated or appear to be fabricated, the fact that the Police evidence under oath was brief and general as to the discovery of methamphetamine need not matter so long as methamphetamine was discovered. The only question is whether the search without a warrant was lawful or not. If it was unlawful, should the evidence be excluded? It goes without saying that if no methamphetamine was discovered, then it can be said that the warrantless search was reckless and may have been done in bad faith.
28. Furthermore, the apprehension of or actual danger to Police or any other is but one factor that should be taken into consideration as to whether to exclude the evidence or not. This appeared not to be a factor in Pesamino. However, that is not to say that there was no danger to Police when it comes to illegal drug related crimes particularly when it involves financial profit. I am of the view that there must always be an apprehension of danger for Police given the nature of drug offences especially with methamphetamine and cocaine.

The evidence

29. Prosecution called Constable Alesana Makisi as their only witness for the voir dire. The defendant elected not to give evidence which was unusual for a voir dire that was prompted by the Mr Sauaga as defense counsel. Although I ruled dismissing the application, I advised Mr Sauaga and Prosecution during Constable Fossie Faolua’s evidence and again after the defendant elected to give evidence in the substantive hearing that I will take into consideration the relevant parts of Constable Faulua and the defendant’s evidence to reconsider my earlier ruling. Having completed the evidence, the subsequent evidence did not alter my ruling. These are my reasons.
30. On Saturday 20^th July 2024 at about 2-3pm, Constable Alesana Makisi, Constable Frazer Leituala and Constable Sisifo Siilatae attended to the hospital to investigate an assault case involving three male suspects named Faamanu, Roy and Carlos at Vaivase. Constable Alesana asked his superior for back-up from the Drugs Unit and Break Squad to assist with the investigation as there was concern with the three suspects putting up forced resistance. Constable Alesana testified that he was suspicious but had no good ground to believe that that there would be in Faamanu’s possession and control illegal substance at the place where they were going.
31. At about 5pm, Police arrived at Faamanu’s place at Vaivase. Upon arrival, Constable Alesana observed several men at the premises including the three suspects. Constable Alesana explained to Faamanu the reason as to why they were there to investigate an assault. However, the suspect later identified as Roy was observed acting suspiciously tearing up papers with what looked like prohibited substances in them. Roy was body searched and illegal drugs were found on him inside his pocket.
32. Alesana was worried after drugs were found on Roy as there were several men at the preises including the three suspects but only four of the officers. He asked Constable Fraser for his mobile phone to call their Commanding Officer Efo Moalele. They were instructed to use section 14A to search the place given illegal substances were found. Alesana testified that there was no time to obtain a search warrant as drugs were found and feared that suspects may tamper with the evidence if they left the scene. Carlos was found with illegal drugs in a piece of paper and “ice” substance. Faamanu was informed of the search and he said to Alesana to do their work. Police proceeded to search Faamanu’s house and the four cars parked outside.
33. Constable Fossie, Assistant Commissioner Efo Moalele, Constable BJ Sanele and Sergeant Su’e Mikaele arrived after Constable Alesana. AC Efo Moalele instructed Constables Fossie, Sisifo and Sanele to stand-by with the four men outside while Constable Alesana and others searched the house. AC Moalele then instructed Constables Fossie, Sisifo and Sanele to body search the four men and the vehicles.
34. Constable Fossie Faolua was instructed by Sergeant Su’e Mikaele to search the defendants car. The defendant was standing next to his car before the search. Constable Fossie asked the defendant if the black Rav 4 vehicle was his vehicle. The defendant said yes and Constable Fossie informed him that the vehicle was going to be searched. There was no opposition from the defendant. Constable Fossie obtained the car key from the defendant and opened the car. Underneath the drivers seat accessed from the back, Constable Fossie found a black bag which contained a glass pipe used to consume illegal drugs.
35. Under cross examination, Fossie agreed that “Chang” and “Teofilo” were present but not body searched. These were the two boys that the defendant knew and picked up from Samoa College Road. This is how the defendant got to Faamanu’s place as the two boys asked to be dropped off there. Fossie also confirmed that he asked the defendant as to who owned the box and the defendant said he did not know.
36. The defendant elected to give evidence in the substantive hearing. He testified that when Police arrived, he was sitting in the passenger seat talking to the other boys under the tree. He was told not to worry they came for Roy and the other boys. However, when illegals substances were found on Roy, Constable Fossie told him to come out of the car. The defendant then got out and locked the car. He was then told by Constable Fossie that he was going to search him and the car and he did not question the search. The defendant gave the key to Constable Fossie and was asked to stand next to the car while the search was conducted. Constable Fossie found a black bag under the drivers seat and asked the defendant what it was and who owned it. The defendant said he did not know.

Discussion

37. Mr Sauaga’s core argument is that when Constable Alesana asked the assistance of the Drugs Squad before heading to the hospital, this was evidence that he did turn his mind that there was a high likelihood that illegal substances may be present at the premises in the possession and control of Faamanu for which a warrant would be necessary. Therefore, rather than risk a warrantless search, Constable Alesana should have applied for a warrant and had enough time to do so as there was no urgency and there was no threat that the suspects would be tipped off or the evidence being tampered with, disappeared or destroyed.
38. The prosecutions case is premised on the fact that they were only concerned about apprehending Faamanu, Roy and Carlos in relation to an assault where the victim was in hospital for treatment of his injuries. It was during the course of apprehending the suspects that Roy was observed as trying to get rid of evidence of illegal substances that led to the need to do a 14A warrantless search on the spot as Police observed a crime being committed, possession of illegal substance and disposal of evidence.
39. It could be said that the defendant may have been in the wrong place at the wrong time. However, was it lawful and reasonable for Police to conduct an immediate body search of the defendant and his vehicle? I believe in the circumstances, it was. There were about 7 or 8 Police officers at the scene. Upon arrival, Constable Alesana noticed about 8 young men including Faamanu, Carlos and Roy. The three suspects were to be apprehended and questioned for an alleged violent assault and the presence of illegal substance heightened the personal safety concern of the Police officers given the presence of at least four other men including the defendant, Chang and Teofilo.
40. The circumstances warranted that a warrantless search be conducted immediately as there was no time to apply for a search warrant given the concern that evidence may be moved, destroyed or not secured relating to illegal substance, firearms, etc. There was in my view reasonable apprehension for the safety of the Police officers given the number of potential suspects present and the likelihood that the situation could get out of control. This concern was expressed in the evidence of Constable Fossie. It was reasonable for Police to conduct immediate body searches as well as on the four vehicles present to secure and control the site.
41. It is not necessary in my view to consider whether there was reasonable ground for Constable Alesana to believe the presence of narcotics. This is because the finding of narcotics was incidental to the original purpose as to why Police were there in the first place. In Feesago, Posala and Pesamino, the investigating officers turned their minds to the fact that illegal substance was involved and feared that the evidence may be lost, removed, destroyed or disposed of. In this case, there was no time for Constable Alesana to turn his mind to consider a warrant as the handling of illegal substance was being committed in their presence.
42. Given my conclusion that the warrantless search was lawful, the circumstances on the evidence that I have accepted follows that the search of the defendant’s vehicle was not unreasonable.
43. Mr Sauaga further emphasized subsection 14A(5) as having not been satisfied by the Prosecution evidence. I accept the Prosecution did not produce evidence in support of this issue. However, the requirement for reporting a warrantless search to the Commissioner of Police within 72 hours is administrative rather than a mandatory element of compliance. It would be an absurdity that Police would comply with all the elements of section 14A in terms of a warrantless search and yet fail on an oversight to reporting to the Commissioner just to state the reason and result of the search.
44. I am not persuaded that Constable Alesana turned his mind to the possibility that narcotics may be found at Faamanu’s premises as the reason why he sought the assistance of the Drug Squad. I am satisfied that Constable Alesana needed backup given the number of suspects that they were going to encounter not only from the Drug Squad but also from the Break Squad. Constable Alesana’s concern was verified given the number of persons that were at Faamanu’s premises upon arrival.

Conclusion

45. The search without a warrant was lawful.

JUDGE MATA’UTIA RAYMOND SCHUSTER

^[1] Police v Feesago [2009] WSSC 115 (9 November 2009); Police v Posala [2016] WSSC 122 (21 June 2016); Police v Pesamino [2024] WSSC 128 (18 December 2024)
^[2] [2016] NZCA 259 at [44]–[45].
^[3] [2024] WSSC 128 (18 December 2024) paragraph 28
^[4] [2009] WSSC 115 (9 November 2009) paragraph 24