Police enter home unlawfully to breath test man

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This story was originally published on Stuff on 29 April 2018.

A High Court Justice has ordered an Auckland photographer’s conviction be set aside because a police officer unlawfully entered his bedroom at Sir James Wallace’s mansion and breath tested him.

She has also called for clarification of the law to make it clear police have no legal right to breath test people in their homes.

The photographer, Lee Torres Calderon, said he was relieved by the appeal decision, and wanted to speak out to let others know about their rights.

Lee Torres Calderon was the artist in residence at Rannoch House, a mansion owned by Sir James Wallace in Auckland’s Epsom, when the incident occurred. “This outcome is important for people. The basic point is that it was quite an unfair situation,” the 29-year-old said.

Torres Calderon was found guilty at a judge-alone trial in the Auckland District Court in 2016 of driving with excess breath alcohol. He was convicted and ordered to pay a fine of $650 and court costs of $130, and his driving licence was disqualified for six months.

Torres Calderon appealed the conviction to the High Court at Auckland. Justice Ailsa Duffy’s judgment was made on April 19 and released this week.

She ordered his conviction be set aside, saying the police officer had no authority to be in his bedroom and the law needed to be changed to inform people of their rights.

“There is an implicit power dynamic [between police and civilians] that the case law does not directly address,” she said. “Many citizens may not know they can demand the officer leave at once, and if she does not do so, she will then be a trespasser.”

Torres Calderon is originally from Lima, Peru, and has been in New Zealand since 2014 on a series of work visas. In January 2016, he was the artist in residence at Rannoch House – a four-storey mansion in the upmarket Auckland suburb of Epsom.

The 100-year-old building is owned by the philanthropist Sir James Wallace and is run by the Wallace Arts Trust as both a residence and gallery for modern New Zealand art.

On the evening of January 10 2016, Torres Calderon went out for dinner, where he shared a bottle of wine and a meal with a companion before driving home, Justice Duffy’s judgment said.

“It was the second anniversary of the death by suicide of his former partner . . . he was emotionally upset on his return to Rannoch House.”

In the early hours of the morning of January 11, Torres Calderon crashed his car into the rock wall at the entrance of the property, bordering the garden. He sustained a cut to his knee, but was able to make his way inside. No other vehicles were involved.

A fellow Rannoch House resident called St John Ambulance, while another gave Torres Calderon a large glass of red wine. The photographer said he was grateful for the wine because he was “shaking and really upset” following the crash. A paramedic arrived and tended to his wound, which did not require hospitalisation.

“Then the police showed up. I just thought it was to help, or something like that. I had a clear conscience – I didn’t have any fear.”

Justice Duffy said in her judgment it was not clear if someone at Rannoch House had called the police, or whether the call to St John prompted them to attend.

A police constable then entered Torres Calderon’s bedroom through a back door. Justice Duffy’s judgment said the constable believed he had authority to enter the bedroom and question the photographer.

Once he learned Torres Calderon had consumed alcohol before driving, he asked him to undergo a passive breath test, then a breath screening test. “I said, ‘I had the accident two hours ago, I’ve been drinking after the car accident, I don’t think you should breathalyse me’,” Torres Calderon said.

“They said, ‘You need to do this or we’re going to arrest you’. And I was like, ‘OK’. I’m in a foreign country and I didn’t know too much what the rules are here. “Of course I was very focussed that [I was] still alive. I just wanted it to be over.”

In his evidence to the High Court, Torres Calderon said he did not realise he could ask the constable to leave, or refuse to take the test. He said he thought the constable had “total authority”.

After the screening test, Torres Calderon was taken to the police station, where he blew 534 micrograms of alcohol per litre of breath. The legal limit is 250mcg after it was lowered from 400mcg in 2014.

Justice Duffy said in her judgment police had implied licence to enter a property, but that extended no further than was necessary to communicate with the occupant.

The owner or occupier of the property had to then give them permission to go any further. Torres Calderon had not given consent to the constable to enter his bedroom, which meant the breath test was unlawfully obtained, she said.

The photographer had “innocently” drunk a large glass of wine in the nearly two hours between the crash and the breath test, and there was no evidence to suggest he was over the legal limit when the incident occurred, she said.

Torres Calderon said the conviction had made travelling and applying for New Zealand work visas more complicated, and had caused him a great deal of anxiety.

“It’s important to tell people that they can ask [the police] to leave. I also think it’s important for the police to have a clear procedure, because at this stage it’s been two years and it’s been a lot of time and energy and stress that I’m not going to get back.”

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