Appeal against admissibility of evidence obtained from ‘unlawful’ search refused

It was argued that since the search had been found to be “unlawful” the judge had been wrong to allow the evidence to be admitted, but the Appeal Court of the High Court of Justiciary upheld the judge’s decision that the police had entered the room “lawfully” and that the key was not recovered during the search.

Lady Paton, Lord Menzies and Lord Turnbull heard that the appellants Alam Sadiq and Omar Sadiq, along with two others, were indicted to a preliminary hearing in the High Court at Glasgow facing charges of being concerned in the supplying of class A drugs between at the Radisson Blu Hotel Glasgow and at nearby Oswald Street.

The evidence led disclosed that at around 11pm on the night of 23 July 2015 Mr Rankin, the security manager at the Radisson, became aware of CCTV footage which that two male visitors to the hotel had attended at room 441 and that two guests who had earlier checked into that room had then made their way to a Mercedes car parked nearby in Robertson Street.

These two men were seen to be putting a white powder substance in a container in the central console of the vehicle, which led Mr Rankin to call the police as he suspected that there might be a drug deal going on.

Police officers arrived and having viewed the CCTV footage for themselves, PC Corkindale decided that he and his three colleagues should go to room 441 to speak to the other males who were still there as he was concerned that they might be in possession of drugs, but he did not seek a search warrant as he was concerned about the preservation of evidence.

However, there was a struggle to gain entry to the room and the door had to be forced open, following which the second appellant and co-accused Hassan Malik were taken into custody.

PC Corkindale told the court that when he returned to the room two of his colleagues had already begun to conduct a search, with certain items of drug paraphernalia having been gathered up and placed on a table in the room.

In addition to these items, an Audi car key and a token for a nearby NCP car park were seen on the same table.

PC Corkindale instructed the search to be stopped in order to seek a warrant.

Additional police officers attended and the senior officer present instructed two others to go to search the NCP car park in Oswald Street for the Audi motor car as soon as possible as he was aware that the other two men had not been apprehended.

The same officer telephoned the on duty procurator fiscal to ask about obtaining a search warrant for the room but was told that hotel staff could provide consent and a warrant was not required.

Consent was then obtained from Mr Rankin and the police officers searched the room.

Each appellant lodged a preliminary issue minute objecting to the admissibility of evidence arising from a search of the hotel bedroom.

An evidential hearing took place after which the judge upheld the objection taken in part and excluded the evidence of the search of the hotel room but permitted evidence to be admitted of the recovery of the Audi car key.

However, the appellants appealed against the decision to admit evidence of the recovery of the car key.

The first instance judge had concluded that search of the hotel bedroom without a warrant was unlawful as there was no urgency once the officers had gained entry to the room.

He also held that the advice which had been given by the procurator fiscal to the police officer was erroneous and, putting all of the factors which he considered relevant together, he declined to excuse the irregularity and refused to admit evidence of what had been recovered during any search of the room.

But the judge also concluded that the police officers did have good reason to go to the room and ask the occupants questions about what they had observed on the CCTV footage.

He also concluded that the occupants of the room had created a situation in which the officers felt they had no option but to force entry in order to ensure the preservation of evidence and in particular to prevent the disposal of any drugs.

The judge further found that the key and token were lying on the table when officers first entered the room and that there was an urgency in finding and securing the car, therefore the recovery of the key was admissible in evidence.

The appellants argued that, correctly interpreted, the first instance judge’s opinion made it plain he had decided that the forced entry to the room was illegal and that everything which had been recovered from the room thereafter had been taken in what should properly be called a search, which was also illegal.

Refusing the appeal, the appeal judges agreed with the approach taken by the first instance judge.

Delivering the opinion of the court, Lord Turnbull said: “It is clear from what he said at paragraph 29 of his opinion that he considered the question of whether a situation of urgency existed, such as would permit the officers to force entry, and considered this question separately from that of any subsequent search. He decided that entry was lawful on the basis of urgency and, in our view, he was correct to do so. The police actions were urgent in nature and, viewed objectively, justified. On considering the question of search separately, for the reasons which he gave, the first instance judge concluded that the search was unlawful. He considered whether he ought nevertheless to admit evidence of the items recovered on the basis of the excusal of an irregularity, but decided not to do so.”

On the decision of the first instance judge to permit evidence to be admitted of the recovery of the car key, Lord Turnbull added: “It was agreed by joint minute that the car key was on a table in plain view when the officers entered the bedroom. It was not recovered in the context of the limited search which took place before permission was sought from Mr Rankin or during the search which took place thereafter. We cannot accept the submission advanced that the unlawful search encompassed everything which was seen by the police officers. The car key was simply observed by the police officers who gained lawful entry to the room in the circumstances described.”