Search and sleazure
In June 2001 Fowlie was arrested for possession of 0.7 grams of bud after police stopped him in the street and searched him without justification. Fowlie had been at a caf? with a friend, and they were saying their goodbyes at around 1:30 am, when they noticed two cops looking for something on the pavement. The cops had been turning someone else over, but had not found any evidence, and apparently didn’t like being observed in their unsuccessful search. One of the officers even admitted to searching Fowlie and his friend Carl Wanoa just because the two men were looking at them.
Here’s how Fowlie recalls their conversation: “A police officer asked me if I had anything in my pockets that I shouldn’t. I replied ‘No.’ ‘You won’t mind me having a look in your pockets then?’ he asked me. ‘Actually, I do mind,’ I said. ‘Why, do you have something to hide?’ he asked me. ‘No,’ I said, ‘but we are just standing here minding our own business. We shouldn’t be subject to this sort of thing.'”
Then the officer suddenly claimed he could smell cannabis.
“No you can’t,” said Fowlie. “You’re just making that up.”
Fowlie claims that at this point one of the officers became verbally abusive, saying “Don’t you fucking tell me what I can fucking smell, you fuckwit.”
The officers invoked the Misuse of Drugs Act, which allows a search without a warrant if police have “reasonable grounds” to suspect a person may possess illegal drugs.
One of the cops made Fowlie undo his trousers and shined a flashlight down his boxer shorts. He eventually found Fowlie’s tin, containing the 0.7 gram fragment of bud, in the pocket of his hemp trousers. Ironically, Fowlie claims he had not had a toke that day, having just returned from the Wellington hearings of the cannabis law reform inquiry. There he had heard the Deputy Commissioner of Police claim that officers no longer went out of their way to arrest personal users.
Fowlie was then arrested and put in a paddy wagon with four other people, all busted for possession of cannabis. On the way to the police station Fowlie says they saw two men fighting in the street, which the cops did nothing about.
After his arrest, Fowlie was determined to fight the charge all the way. He pleaded not guilty and insisted on his right to a defended hearing. As it was his first arrest ? despite his high profile as a NORML campaigner, and even lighting up on TV ? he was entitled to a “diversion.” This involves pleading guilty in exchange for police withdrawing the charge, and avoids the need for a court appearance.
Most Kiwi tokers, if it was their first arrest and for such a small amount, would have gone along with a diversion to avoid legal hassles. The police seemed genuinely surprised that Fowlie would fight it. They offered him diversion twice, but refused to withdraw the charge.
Fowlie declined the offer both times, saying “I am not a criminal or guilty of anything that should be a crime, and I was searched unreasonably and unlawfully.”
When the trial finally took place, on February 8, 2002, in the Auckland District Court, plenty of NORML activists turned out in support ? so many that they had to move the case to a larger courtroom. The hearing, scheduled to start at 10 am, finally got under way at 10:55. It was Fowlie’s fourth court appearance for the sake of 0.7 grams.
Three police officers appeared to give evidence. They had great difficulty recalling details of the search and arrest, but testified under oath that there was a “very strong smell” of pot ? which must have been escaping through the lid of the tin in Fowlie’s pocket. The cops also failed to file a report on the incident, as they are required to do under the Misuse of Drugs Act.
At the end of the day, Judge Phil Gittos reserved his decision ? itself a good sign, as it meant he intended to address the issues of unreasonable search and violations of the Bill of Rights.
When court was adjourned, it was 4:20 pm. The significance of the time was not lost on the NORML crew, who assembled on the steps of the courthouse ? only to find that nobody had brought any pot! So a tobacco cigarette was rolled to look like a big joint and everybody posed for photos.
Hemp for victory
A week later Fowlie was back in court to hear the decision… Not guilty! In dismissing the charge, Judge Gittos said “The circumstances overall leave an uncomfortable perception [of]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… In my judgement the search conducted of Mr Fowlie was unreasonable and the evidence obtained thereby should be regarded as inadmissible.”
For Fowlie, the decision was a major victory, a vindication of his resistance to an unjust law and police bully-boy tactics. The case had tremendous publicity value for NORML, gaining front-page headlines in New Zealand’s leading newspapers.
It was also a relief for Fowlie to be free from the clutches of the legal system ? he had faced the possibility of up to three months in jail. As he said, “I would rather risk that than co-operate with a law that is in itself criminal.”
Commenting on the decision, Fowlie explained that “police will no longer be able to say they smell cannabis to get around the right to be free from unreasonable search. More than thirty people are arrested every day for possession of cannabis, and many are the result of similar unreasonable searches”.
New Zealand minister of police George Hawkins said the decision would not be appealed by the police, describing it as “a timely clarification of the law.”