Greg Nunez v Commissioner of Police

• Jurisdiction: Belize
• Judge: Westmin R.A. James
• Judgment Date: 19 June 2021
• Court: Supreme Court (Belize)
• Docket Number: CLAIM NO. 773 OF 2020

IN THE SUPREME COURT OF BELIZE A.D. 2020

Before:

Hon Westmin R.A. James

CLAIM NO. 773 OF 2020

CLAIM NO. 49 Of 2021

Between:

Greg Nunez

Claimant

and

Commissioner of Police

First Defendant

Attorney General of Belize

Second Defendant

Between:

Bryton Codd

Claimant

and

Commissioner of Police

First Defendant

Attorney General of Belize

Second Defendant

Appearances:

Ms Leslie Mendez and Mr Anthony Sylvestre for the Claimants

Mr Kileru Awich and Mr Jorge Matus for the Defendants

1 This consolidated matter surrounds a prevalent practice of Belizean police officers in stopping and searching of citizens in Belize and the photographing of their identification cards. The searches of the Claimants in this case occurred on the same day, at different times, at different locations and by different police officers. Yet still, the claims are strikingly similar. Both claims impugn searches carried out by police officers conducting mobile patrols on the 4 ^th of August 2020, which end with the taking of the Claimants' information and photographing of their identification cards. Both claims assert constitutional breaches of Sections 9 and 14 of the Constitution. Both seek declarations, damages and other constitutional relief for the violations of their rights.

2 The Claimants commenced their claims for the following reliefs:

• a. A Declaration that the search of the Claimant's person carried out by officers of the Belize Police Department, on the 4 ^th of August 2020, in the absence of any reasonable suspicion of criminal activity, contravened Section 9 of the Belize Constitution and is unlawful being disproportionate and in excess of any statutory authority to search the Claimant's person;

• b. A Declaration that the photographing of the Claimant's identification card constitutes an unlawful and disproportionate interference with the Claimant's right guaranteed under Section 14 of the Belize Constitution to not be subjected to arbitrary or unlawful interference with his privacy, except under the authority of a law which makes reasonable provision in accordance with Section 9(2) of the Constitution;

• c. A Declaration that the retention of the photograph of the Claimant's identification card further constitutes an unlawful and disproportionate interference of his right guaranteed under Section 14 of the Belize Constitution to not be subjected to arbitrary or unlawful interference with his privacy, except under the authority of a law which makes reasonable provision in accordance with Section 9(2) of the Constitution;

• d. A Declaration that the actions of officers of the Police Department, on the 4 ^th of August 2020 failed to recognize and treat the Claimant with even a bare modicum of the dignity and respect required by Section 3 of the Belize Constitution; (only in Claim 773 of 2020]

• e. An injunction restraining the Defendants, their servants or agents or otherwise from taking and retaining photographs of persons not charged or convicted with an offence in the absence of any law authorizing and regulating the same;

• f. An injunction ordering the Defendants, their servants or agents or others, to destroy the photograph of the Claimant's identification card; and

• g. Damages for constitutional relief, including vindicatory damages;

3 The issues for determination as seen by the Court are as follows:

• a) Whether the searches of the person and property of the Claimants were unlawful and in breach of sections 3 and 9 of the Constitution?

• b) Whether the taking and retaining of the photograph of the Claimants' identification card breached the Claimants' right to privacy as guaranteed under Section 14 of the Constitution?

• c) If so, what are the appropriate remedies which the Court should order?

Arbitrary Search

4 A search of one's person especially without judicial oversight involves an affront to the dignity and privacy of the individual and is really an incursion on the rights which citizens have to generally go about their lawful business unhindered by the State authorities. The Constitution protects the citizens from having their freedom interfered with unless it would be lawful to do so.

5 Section 9 of the Constitution guarantees that:

9.–(1) Except with his own consent, a person shall not be subjected to the search of his person or his property or the entry by others on his premises.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes reasonable provision–

• (a) that is required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilisation of mineral resources or the development or utilisation of any property for a purpose beneficial to the community;

• (b) that is required for the purpose of protecting the rights or freedoms of other persons;

Consent

6 The Defendants argued that the Claimants consented to the searches and therefore falls outside of Section 9. They argued that there was no evidence that the Claimants did not consent. In relation to Greg Nunez, they argued that he anticipating the search complied and he merely asked the reason for the search. He told the officers that ‘they did not have any probable cause to search…’ he told the officer that he ‘did not have no drugs or guns’ he ‘asked the officers for their names. In relation to Bryton Codd in his affidavit, PC Tzul states that “ the five male persons all allowed me to search their person and the heavily tinted Gold Toyota Corolla.”

7 I find this argument disingenuous, compliance with a police officer's instructions especially when the officers did not ask for consent cannot be considered consenting. If that was the case then no search by a police officer could be impugned unless a person resists the police. This is in a context where, if a person resists the search or protest, could be subject to detention or a charge of resisting arrest or interfering with a police officer in the course of executing their lawful duties. The Claimant's don't have to prove they did not consent, the Defendants have the burden to show that they got consent. The Claimant, Greg Nunez, expressly objected to others being searched he himself said they had no probable cause to search him if that isn't considered objecting, I do not know what anyone could do.

8 From the evidence presented to the Court, it is clear that officers took no steps to determine or ensure that they had the true consent of the Claimants. In their Affidavits, the Defendants assertions that the Claimants consented was not borne out by the evidence. They provide no information to Court on the manner in which consent was sought or obtained, the language the officers used in the encounter, and their general demeanour towards the Claimants I agree with the Claimants could not in any way be considered to be requesting or even cared about consent.

Reasonable suspicion and Reasonable belief

9 The Defendants argued that the searches were conducted pursuant to Sections 25(2) of the Misuse of Drugs Act and Section 22 of the Firearms Act which provide officers with search powers and therefore constitutional. Here, it would be useful to look at relevant provisions:

10 Section 25(2), the Misuse of Drugs Act reads:

(2) If a member of the Belize Police Department has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act, or of any regulations made thereunder, the member of the Belize Police Department may, subject to subsection (3)–

(a) search that person, and detain him for the purpose of searching him;

11 Section 22 of the Firearms Act provides:–

22. Any police officer may arrest without warrant any person whom he believes to be in possession of, or to be using or carrying a firearm or ammunition in contravention of any of the provisions of this Act, and may search that person and, whether arresting him or not, may seize and detain any firearm or ammunition in his possession, or used or carried by him.

12 The main issue to be resolved here therefore was whether the officers had reasonable grounds for suspicion or reasonable belief and whether those grounds were justified.

Test

(a) Misuse of Drugs Act

13 The provision permit police officers to, without a warrant, search persons they reasonably suspect to be in possession of illegal drugs. The police can only do so on reasonable grounds: Brazil v Chief Constable of Surrey [1983] 3 All E.R. 537. The test for whether the officers had reasonable grounds to suspect the Claimant of being in possession of a controlled drug is an objective one. In Cedeno v O'Brien (1964) 7 W.I.R. 192 Wooding CJ said those words imposes the condition that “there must in fact exist reason to suspect known to the officer, and not merely speculation or conjecture or even suspicion harboured or entertained by him, before he can validly exercise the authority.” The test must relate to the standards of a reasonable man and not whether this police officer believed he had reasonable grounds for suspicion, since as experience tells us, some people's suspicions are easily aroused.

14 The mind of the officer is relevant and the matters creating the suspicion in the Police Officer's mind must reasonably give rise to such suspicion and they must be both honestly held in the officer's mind and reasonably believed by the officer: O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 All ER 129.

15 In the recent decision of the Privy Council, Betaudier v the Attorney General of Trinidad and Tobago [2021] UKPC the Board affirmed the test set out in O'Hara for reasonable suspicion. At paragraph 11, the Board states:

11. In the present case the trial judge, des Vignes J, and both Mendonca JA and Rajkumar JA in the...