Searching questions on ethnic targeting
Within 12 months, police made 9435 searches without a warrant to do so – nearly twice as many as recorded in the year before. Ma¯ori and Pasifika people were many times more likely to be the subject of these searches. A months-long investigation today lif
Of all the tools available to the police, there are some we see all the time, and then those that seem to go under the radar.
The police helicopter, Eagle, with its whirring blades in the Auckland skies is hard to miss. Tasers, dogs, batons and handcuffs – they’re things we’re all familiar with.
But there’s one that many people will hardly know about, if they’re lucky. It’s like a superpower for police officers who believe they’ve detected crime; Superman has the ability to leap tall buildings in a single bound – police have the ability to leap right over the Bill of Rights.
It’s a power police say they wield responsibly and within the law.
But it’s a tool which leaves a gnawing knot in the stomach of those who worry about how justice is meted out in Aotearoa. And it’s leaving people feeling dehumanised and angry.
Every day, police carry out dozens of warrantless searches. A Sunday News investigation into the powers of the police to stop and search people has uncovered:
A 90 per cent surge in the reported use of powers to carry out searches without awarrant.
A vast racial disparity in the identity of people subjected to warrantless searches: Ma¯ori are four times more likely to be targeted and Pasifika 1.2 times more likely, compared with Pa¯keha¯.
The locations of 41 stations across the country where Ma¯ori are subject to warrantless searches at even higher rates than the national disparity.
The outcome, say many lawyers and justice advocates, is evidence of an attack on human rights.
‘‘The Bill of Rights has been totally degraded,’’ says Green MP Golriz Ghahraman, a former human rights lawyer who took a landmark case involving race and the use of warrantless searches.
‘‘It’s become a culture of police going on fishing expeditions to see if they can find something. I hate it.’’
Others, too, are adamant something has to change.
John Tamihere, chief executive of social services provider Te Wha¯nau o Waipareira Trust, accuses the police of going on ‘‘fishing expeditions on brown people’’.
‘‘The culture of the police needs to change from believing that every brown person is a suspect and every brown person is a possible perpetrator of a
crime.’’
Police Commissioner Andrew Coster admits the raw data is ‘‘appalling’’. But he says it’s a complex area where police need to understand the ‘‘drivers’’ of what is causing the disparity.
‘‘We need to be confident that we are operating fairly and appropriately to all groups of people in the parts of the process that we control. And that’s where we’re digging into to understand at the moment.’’
Even if you’ve never had any personal experience with the police, and all you know about them is through cop drama shows on TV, you’ll know the phrase: ‘‘Open up, it’s the police – we’ve got a warrant!’’
A warrant is an official document which gives the police authority to search for evidence of a crime. In New Zealand, they can be issued by a judge, justice of the peace, community magistrate or court registrar when convinced the police have reasonable grounds to believe an offence has been (or is being) committed. It’s a formal process,
with oversight.
But there is awhole other category of searches where there is often no immediate independent oversight – warrantless searches, the power of a police officer to enter a property or stop someone and search them on the spot under certain circumstances.
The reported use of warrantless searches is climbing. Between 2018 and 2019, they almost doubled, from 4942 to 9435 – a 90 per cent increase.
Police say the leap since March last year is because of the introduction of a new system for recording them, via their iPhones. The change, says the police’s manager of strategy and capability, Kathryn Wilson, means there is amore accurate picture of the use of the powers, including when multiple searches are carried out during the same incident. Wilson does not believe it ‘‘represents significant change in the actual use of warrantless search powers by our people’’.
The law which empowers police to act is the Search and Surveillance Act. The main
situations covered include when police believe there are drugs or firearms offences, where officers need to carry out an arrest, or to preserve evidence that might be destroyed.
The data shows there has been an increase across the board.
In 2018 and 2019, drug searches were the biggest reason cited for awarrantless search, followed by firearms.
Digging out information about warrantless searches has been a drawn-out process. Initially, police said they did not have a breakdown by ethnicity for warrantless searches.
Eventually, police released to Sunday News other details about warrantless searches carried out in 2018 and 2019.
Analysis of those 14,000 searches showswhere they were carried out, based on police station locations.
On the raw numbers alone, Christchurch stood out, particularly after the mosque terror attacks of March last year, when police activity stepped up,
Our people turn up to do a good job, and they don’t turn up to deliberately disadvantage particular groups of people.’ POLICE COMMISSIONER ANDREW COSTER
particularly through Operation Whakahaumanu. Stuff reported this year that there were 600 people of interest in Canterbury alone, with hundreds of properties searched in the district as part of the operation. Three searches, including at least one in Canterbury, were ruled unlawful by the Independent Police Conduct Authority.
Other stations which were associated with hundreds of searches were Wellington, Hastings, Whanga¯rei, Timaru, and Hamilton Central. Four of the top 10 were in Auckland: Henderson, Manurewa, ta¯huhu and Mt Wellington.
To get ameasure of where there might be disparities, we introduced crime data too. Was there any correlation between reported crime and warrantless searches?
Our analysis showed some stations serving communities with a higher share of Ma¯ori and Pasifika residents were more likely to see higher numbers of warrantless searches when compared with stations of similar crime rates.
This was particularly the case when examining drug crime and drug-related searches (sections 19 and 20).
A vastly disproportionate number of warrantless searches have been carried out in Henderson, despite the
Auckland suburb being proportionally one of the 10 safest in New Zealand. Henderson is home to a considerable contingent of minorities. In Auckland’s west, further west even than the unofficial westie capital of Henderson, is the suburb of Ra¯nui.
A strip of main shops is surrounded by houses squeezed beneath the Waita¯kere Ranges. In the middle of the township is a train station and a local primary school. More than 80 per cent of the students identify as Ma¯ori or Pasifika.
Sit down with youths from the suburb and they’re almost perplexed why you would bother talking to them about being stopped by the police: for them and their wha¯nau, it’s not an uncommon occurrence. So why the fuss?
One, an 18-year-old, tells us he’s been stopped about six times, often just while out walking with friends. The day before we spoke, he was pulled over after doing a U-turn on his way to a course in the morning.
The police car had been following him for awhile, when he realised he’d missed a turn and had to go back to get to a shortcut he knew.
‘‘They turned the lights on, and I thought: ‘Oh, s...’ They thought I was up to something sketchy.’’
The 10-minute conversation with the officer went nowhere in the end, but it did hold him up, making him late for his course. And it added to his perceptions of why he gets stopped by police.
‘‘Probably the way I dress, or the way I walk or something – or my colour.’’
A 15-year-old from Ra¯nui, too, tells us he’s been stopped about ‘‘six or seven times’’.
Once, when he lived on the North Shore, he was sitting in a bus stop after school when police pulled up and spent 40 minutes asking him about a stolen car. He says he had no idea about the stolen car and doesn’t know why the police would quiz him.
Again, the exchange went nowhere, he says.
But it left him feeling, once more, that he was being judged unfairly.
‘‘It just pissed me off, annoys me, makes me mad.’’
Until last week, Sunday News’ analysis of the available data had shown a clear rise in the use of warrantless searches and evidence of racial bias in who was subject to them. Coster fronted for an interview about it.
Coster, who took over the job in April during the coronavirus lockdown, had had a busy day: a police dog had been shot in Northland, with officers shooting the alleged offender; and staff at headquarters were working through the royal commission’s report into the mosque terror attack. Policing is never easy.
Nevertheless, Coster says he appreciates the scrutiny of this investigation, though ‘‘hopefully coverage can reflect the complexity of the issue because there’s a lot of positional stuff that’s very simple, on both sides actually, but the truth is in the middle and needs to be understood’’.
He defends his staff, as you’d expect: ‘‘Our people turn up to do a good job, and they don’t turn up to deliberately disadvantage particular groups of people.’’
But – and there is a big but – he acknowledges there is a problem: the system.
‘‘We need to acknowledge that practice evolves over time and it doesn’t always evolve appropriately over time ...I guess at some level you have to accept the proposition that the system is getting very poor outcomes for some people, particularly Ma¯ori, and therefore the system is not operating appropriately.’’
We talk about Henderson and Manurewa, areas that stand out, places where people in the community feel they are the victims of ‘‘fishing expeditions’’.
Coster says he ‘‘acknowledges those feelings’’, but adds both of those areas are high-crime areas, with weapons particularly an issue.
‘‘But we need to be reminded that we don’t generate all the searches by proactive policing activity. There’s also a decent chunk of them which are connected with calls to service where police are called to a location because an assault has occurredO¯ or someone has been observed dealing drugs or whatever.’’
It’s what he means when he talks about the ‘‘drivers’’ of searches. ‘‘Unpicking’’ what was behind a search, and then taking into account the possibility of crime in other areas not being detected because police aren’t looking in that direction means ‘‘it’s not a straight-forward situation to address’’.
During the interview, Coster discloses something unexpected. Since March 2019, he says, police have in fact been able to analyse ethnicity data. Data analysts have discovered that the change in the reporting system means police are now able to crossreference search data with other databases. ‘‘We do have nine months of data we can share with you, from 2019.’’
There are still some issues with the data, he says, and ‘‘there’s not 100 per cent reliability, but it will give you a broad outline anyway’’.
When it lands, it sure does – the disparities are stark and immediately obvious.
Across the country, about 40 per cent of the warrantless searches carried out were of Ma¯ori, and 41 per cent were of Pa¯keha¯. Those figures are significantly out of whack with population data: Ma¯ori make up just 16 per cent of the population, Pa¯keha¯ about 70 per cent.
In other words, there is a 24-point difference between the proportion of searches of Ma¯ori compared to the proportion of Ma¯ori in the country.
In some parts of the country, that disparity is significantly worse. Excluding locations with very few searches, at 41 out of 284 stations – 14.5 per cent – the difference between searches and population is worse than the national 24-point difference.
More than 130 stations have a higher proportion of warrantless searches on Ma¯ori than the proportion of Ma¯ori in the community that station serves.
Stations that stand out include: Wairoa, po¯tiki, O¯ Flaxmere, Tu¯rangi, Gisborne, Whakata¯ne, Rotorua, Kamo, Te Puke, Lower Hutt, Havelock North, Johnsonville, Wellington Central and Auckland Central.
It’s the same for Pasifika (who make up only 8 per cent of the country’s population) in 26 stations, including Avondale, Onehunga, Glen Innes,
Balmoral, Beachlands and Newmarket. For 56 stations around the country, Pasifika people are more likely to be searched than Pa¯keha¯.
There is only one station in the country (Dunedin North) where Ma¯ori have been searched at a rate lower than their proportion of that community’s population.
An almost exactly opposite picture applies when examining the figures from a Pa¯keha¯ perspective: almost all stations carry out warrantless searches of NZ European people at a rate lower than their population in the community.
There are 40 stations around the country where Ma¯ori are five times more likely to be subject to awarrantless search than Pa¯keha¯.
If we exclude stations with fewer than 100 searches, there isn’t a station where Ma¯ori are less likely to be searched than Pa¯keha¯.
No matter which way you cut the figures, Coster’s assessment that the raw data is ‘‘appalling’’ rings true.
Nelson lawyer Steven Zindel, a spokesman for the Criminal Bar Association, points out that human rights law prevents racial profiling. But that doesn’t mean it doesn’t happen. It’s just how things are worded.
When questioned about why they chose to stop someone, no officer will directly identify race.
‘‘Policemen will swear in the witness box: ‘I didn’t stop him because he was Ma¯ori. It was just because I was concerned about his erratic behaviour’. Who notices erratic behaviour? Amiddle-class person looking a bit erratic might not be stopped.’’
Kingi Snelgar, defence lawyer and former Crown prosecutor, has taken cases trying to have evidence gathered through warrantless searches thrown out, examining the reason for the initial interaction between his client and police.
‘‘We’re trying to pull the layers back,’’ he says. ‘‘Like often you’ll hear police say the reason was there was some suspicious behaviour. But when you pull the layers back about what is it that was suspicious, for me anyway, there is this underlying current of race being a ground for warrantless searches.’’
Other words that get used are ‘‘shifty’’ or ‘‘jumpy’’, he says.
‘‘But when you focus on what are the characteristics of the person besides that, it’s often that they are young brown people.’’
Every time he’s challenged a search, police have strongly opposed. But Snelgar remains convinced that, as an institution, the police culture is biased against Ma¯ori and Pasifika.
‘‘I think that unconsciously there’s still an assessment made by the police that young brown people are more likely to be committing crimes and of course that’s a prohibited ground under the Human Rights Act.’’