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NQ judge: Police drug search at traffic stop unlawful

A large quantity of drugs found secreted down the pants of a North Queensland motorist stopped for driving a defective vehicle has been excluded as evidence at his trial by a judge who deemed a police search to be unlawful.

Cairns Supreme Court Justice Jim Henry last month ruled evidence relating to Jonathon Robert Aloia’s possession of 33.6 grams of the illicit drug MDMA – known colloquially as Ecstasy or Molly – at Innisfail be excluded from his proposed drug possession criminal trial.

Justice Henry said Aloia’s case was “very concerning” and highlighted the obligation of police to “obey the law” when conducting searches of people using “laws designed to protect citizens”.

The court was told Aloia was charged with possessing dangerous drugs in excess of two grams in the wake of a traffic stop about 9pm on 27 August 2020 during which he challenged a police constable about whether he had a warrant or legal right to search him.

Lawyers for Aloia applied for the exclusion of all the drug evidence at his trial on the grounds it had been unlawfully obtained – including an admission by Aloia he had earlier purchased the MDMA while in Tully, 53km south of Innisfail, for $1800.

Aloia was initially stopped by two officers tasked with a “to be on the lookout” direction for a Blue Holden Commodore which had been reported as having some major defects.

“It is not disputed the vehicle had some defects,” Justice Henry said. “Nor is it disputed police were entitled to intercept the vehicle to inspect it and to administer roadside alcohol and breath tests upon (Aloia).”

However, it was ensuing actions of police which the judge deemed unlawful.

While awaiting the results of Aloia’s drug test, one officer conducted a police database check which revealed “intelligence” and a “number of drug related occurrences” linked to the motorist.

Justice Henry said a police recording of the ensuing conversation between Aloia and an officer had been provided to the court.

Constable: Is there anything in the car that you shouldn’t have. Is there any drugs, weapons, money, anything like that?

Aloia: No.

Constable: I’m gonna detain you for a search of the vehicle. So I’ll just get you to jump out. Now before I do a search, what I’m gonna do is conduct a search of yourself as well.

Aloia: May I see a warrant, please?

The court was told the officer replied he didn’t need a warrant to conduct a search.

Aloia replied: I’m pretty sure you do.

Constable: No, I don’t, if I have a reasonable suspicion then I don’t need a search warrant.

In finding the search unlawful, Justice Henry said: “The bare fact (Aloia) had used illicit drugs in the past and was once caught in possession of illicit drugs did not provide reasonable grounds to suspect that he was in possession of something which may be an illicit drug then and there, at the scene of the vehicle intercept on the night in question.

“There was nothing about the innocuous factual circumstances at the scene which could rationally have elevated the force of the police information to grounds that were reasonable in the circumstances for suspecting the applicant was then in possession of something that may be an unlawful drug.

“The requisite reasonable suspicion was not held. The search of the applicant was unlawful.

“I am prepared to accept the unlawfulness was not deliberate and was likely an ill-considered reaction to seeing the police database entry ‘Drug user – search at every opportunity’. Yet that feature of the case is also very concerning.

“Police in the field need to know an instruction of that kind in a police database does not negate their obligation to obey the law. It is critical to laws designed to protect citizens serving their purpose that police apply their independent minds in making an assessment which must be made by them, not by an entry in a database.

“In this case such an entry seems to have been so determinative that having seen it the officer did not even bother to wait for the outcome of the drug test he had administered.

“In my conclusion the undesirable effect of this court being seen as tolerating the circumstances prompting the unlawful search in this case materially outweighs the public interest in the conviction and punishment of (Aloia).”

In October 2021, Justice Henry made a similar ruling in a case involving teenager stopped and searched by police after he was seen walking quickly through the Cairns CBE at 1.50am on 2 July 2020.

Read the Aloia decision.

Read the QLS Proctor article from the October 2021 case.

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