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[2008] ZAWCHC 38
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S v De Vries and Others (67/2005) [2008] ZAWCHC 38; 2009 (1) SACR 613 (C) (11 June 2008)
REPORTABLE
Republic
of South Africa
IN THE HIGH COURT OF SOUTH
AFRICA
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
Case number: 67 / 2005
In
the matter between:
THE
STATE
versus
SELWYN WINSTON DE VRIES
Accused number 1
VIRGIL LENNITH DE VRIES
Accused number 2
JULIAN MICHAEL VAN HEERDEN
Accused number 3
VERNON NOEL VICTOR
Accused number 4
ALEX ANNA
Accused
number 5
GARY WILLIAMS
Accused
number 6
LLEWELLYN SMITH
Accused
number 7
FRANCIS JAMES NGARINOMA
Accused number 8
EDWARD MOAGI
Accused
number 9
DARRYL PITT
Accused
number 10
ACHMAT MATHER
Accused
number 11
REASONS
DELIVERED ON 11 JUNE 2008
(ORDER
GIVEN ON 30 JANUARY 2006)
BOZALEK,
J:
[1] This is a ruling on the
admissibility of certain evidence following a trial within trial. The
eleven accused in this matter are
standing trial on 25 charges
including some under the
Prevention of Organised Crime Act, 121 of
1998
which deals with racketeering. The charges revolve principally
around three armed robberies of delivery vehicles, two of which took
place in the Western Cape in June and August 2003 and one outside
Port Elizabeth in October 2003.
[2] In each instance a delivery
vehicle belonging to BATSA (British American Tobacco Company)
carrying a consignment of cigarettes
was stopped outside an urban
centre en route to its destination through being pulled off the road
by one or more persons dressed
as police or traffic officials. Such
persons would be driving a white Volkswagen
Polo
of
Golf
equipped with a flashing blue light thus gulling the BATSA trucksâ
occupants into believing that the stopping was official. Once
the
vehicle had stopped firearms were produced by those manning the
roadblock and the vehicleâs driver and his assistant were placed
in
another vehicle and driven from the scene. In the meantime the
cigarettes were unloaded onto another vehicle. Once this operation
was complete the driver and his assistant were released. In each case
a number of vehicles were used by the gang members who also
used cell
phones to communicate with each other during the robberies.
[3] The first robbery took place
nearby Rawsonville on 24 June 2003 and the second nearby Darling on
12 August 2003. Little progress
was made in the investigation until
shortly after the second robbery when information was received by the
police from an informant
regarding the identity of certain persons
allegedly involved. This information led the police to seek and
obtain subpoenas in terms
of s 205 of the Criminal Procedure Act, 51
of 1977 (âthe Actâ) requiring certain cell phone companies to
furnish written records
of calls made and received using specific
cell phone numbers at the time of the robberies. Once obtained these
records were analysed
in relation to data from the satellite tracking
system fitted to the BATSA vehicles involved in the robberies which
records the precise
whereabouts of the vehicles during their trips
from BATSAâs depot in Cape Town to outlying areas as well as other
relevant information.
The records furnished by the cell phone
companies revealed the approximate geographical location of the cell
phone being used at
the time of each call made and received as well
as the number to which or from which each call was made. In this
manner a picture
was built up of the whereabouts and use of the
relevant cell phones on the day of the robberies and the days
preceding and following
them.
[4] On 7 October 2003 a successful
application was made to the magistrate in Cape Town for warrants of
arrest in respect of accused
numbers 1, 2, 3, 6 and 7. All these
accused appear to reside in Ennerdale, Gauteng and in the early hours
of 9 October 2003 a large
team of police officials executed a
co-ordinated raid on eleven addresses in the area in order to execute
the warrants. All five
accused were found and arrested and at the
same time the premises in which they were found were searched. A
variety of objects was
seized, most notably cell phones, motor
vehicles and in one case a bag of what appeared to be items of police
clothing and rank insignia.
[5] Early in the trial notice was
given on behalf of the aforesaid accused that they contested the
admissibility of the cell phone
data procured under the section 205
subpoenas, the validity of the warrants of arrest as well as the
ensuing searches and thus the
admissibility of the various items
seized from the accused and/or their premises. In the result a
trial-within-a-trial was held to
determine the admissibility of such
evidence. The State led a considerable number of witnesses but none
of the accused elected to
testify nor did they place the evidence of
any witnesses before court.
GROUNDS OF THE OBJECTIONS
[6] In order to focus the
trial-within-a-trial counsel were asked to set out the principal
grounds of their objection to the admissibility
of the disputed
evidence. Counsel for accused 1, 2, 6 and 7 contended that the phone
records had been illegally, wrongfully and unconstitutionally
obtained in that there had been no reasonable grounds for the issue
of the subpoenas. They contended that the warrants of arrest
were
unlawful and invalid in that the authorizing magistrate had lacked
territorial jurisdiction to issue the warrants. Furthermore,
it was
contended, information placed in front of the magistrate had been
incomplete or misleading and, finally, that the warrants
had not been
executed in terms of the order. As regards the search and seizures
effected pursuant to the arrests, it was contended
that these had
been unlawful and the evidence unconstitutionally obtained in that
the police had not been armed with search warrants
and had had no
reasonable grounds to search and seize. Furthermore, the warrant of
arrests being defective, all seizures flowing
from the searches
effected pursuant to the arrests were themselves unlawful and
unconstitutional. Counsel for accused number three
also relied on the
above arguments relating to the warrant of arrest but contended
further that there had been no evidence linking
accused number three
to the cell phone number, the use of which had been attributed to
him.
ONUS
[7] In accordance with the general
rule, the onus of proving both facts and conclusions relevant to an
enquiry into the admissibility
of evidence rests on the State and
must be discharged beyond reasonable doubt. See
inter
alia
S
v Zuma
and others
[1995] ZACC 1
;
1995 (2)
SA 642
(CC). Different considerations may apply where s 35(5) of the
Constitution of the Republic of South Africa Act, 108 of 1996 (âthe
Constitutionâ) comes into play. It provides that evidence â
obtained
in a manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence would render
the trial
unfair or otherwise be detrimental to the administration of justice
â.
To the extent that the defence avers the existence of a
constitutional right and its infringement the burden of proving same
is borne by the defence. See
S
v Naidoo and Another
1998
(1) SACR 479
at 523A â B. Different views have been expressed as to
who bears the onus of proving that the admission of evidence would
render
a trial unfair or otherwise be detrimental to the
administration of justice and the standard of such proof. See
S
v Gumede
1998 (5) BCLR 530
(D) and
S v Mfene
and another
1998 (9) BCLR 1157
(N). It would seem anomalous that the State is in
effect required to prove a negative proposition, namely that the
admission of the
evidence would not render the trial unfair or in no
other way be detrimental to the administration of justice,
propositions furthermore
which involve a value judgment to a lesser
or greater degree. Nonetheless, for the purposes of this ruling I am
prepared to accept
that the State bears the onus of proving the two
requirements in s 35(5) of the Constitution.
THE SECTION 205 SUBPOENAS
[8] I turn first to consider the
admissibility of the evidence obtained from the cell phone companies
by virtue of the s 205 subpoenas.
This evidence comprises detailed
billing records pertaining to a total of 17 cell phone numbers
including calls made and received
and the location of the phone being
used over the period of March to September 2003. Only five of these
numbers related to the accused
on whose behalf the objection was
taken. The evidence reveal that their numbers were first furnished to
the police by an informant,
one Mentoor, who claimed that he had
information implicating them in the first two robberies.
[9] On the strength of this
information a subpoena was prepared which
inter alia
covered
certain telephone numbers attributed to accused one (072 460 6755),
two (072 221 2408) and three (072 565 6571). It was authorised
by the
magistrate, Cape Town on 22 August 2003. On 18 September 2003 a
second subpoena was authorised by the selfsame magistrate
and
contained
inter alia
a telephone number relating to accused
number six (072 373 1856). No trace can be found on either subpoena
of the telephone number
attributed to accused number seven (072 270
1704).
[10] The subpoenas call upon the cell
phone companies to appear before a magistrate and give the
information sought in respect of
the cell phone numbers,
alternatively, to furnish such information in the form of records to
the investigating officer. The subpoenas
conveyed further that
information was sought in regard to an armed robbery but did not give
the identity of those who allegedly used
the cell phone numbers in
question. The first of the relevant subpoenas related to the armed
robbery near Darling and the second
to that committed near
Rawsonville. The concluding paragraph of the subpoenas advised the
witness that failure to meet the conditions
of s 205 would subject
such person to a fine not exceeding R1500,00 or imprisonment not
exceeding a period of three months. The subpoenas
were signed in the
first instance by Adv. Niehaus, the deputy-director in the office of
the Director of Public Prosecutions, Cape
Town.
[11] The final witness called by the
State in the trial within the trial was a senior magistrate of the
district of the Cape, Mr.
HJ Venter who had authorised the issuance
of the subpoenas. Not unsurprisingly Venter had no independent
recollection of considering
the applications for the subpoenas. He
stated that the general procedure which he follows in such instances
is to consider the written
statements in the docket placed before him
by the investigating officer together with the application. He checks
to see whether the
application is made by the director of public
prosecutions or a person authorised by him and, if satisfied with the
application,
grants authority for the issue of these subpoenas. It is
doubtful, however, whether this was an accurate description of the
magistrateâs
modus operandi
in the present matter since when
the contents of the relevant statements from the dockets were put to
him in cross-examination, he
had to concede that they made no mention
at all of the cell phone numbers in question, let alone any persons
who may allegedly have
used such numbers in connection with the
commission of any crime. It also became apparent that the fact that
the subpoenas had been
sought under the signature of Adv. Niehaus
weighed heavily with the magistrate and in truth this factor appeared
to be the main determinant
of the magistrateâs attitude to the
applications. Upon re-consideration, Venter stated that he would not
have authorised the issue
of the subpoena in one instance but would
have granted the other since the statements, upon his reading of them
in the witness box,
made several references to persons involved in
the Rawsonville robbery making use of cell phones.
[12] The State contended in the first
place that the accused had no standing to challenge the admissibility
of the evidence obtained
pursuant to the subpoenas because their
right to privacy was not infringed. As I understood this argument the
contention was that
because the records or data were not in the
accusedsâ possession, only the witness i.e. the cell phone company,
could challenge
the validity of the subpoena. Another leg to the
Stateâs argument in this regard was that no accusedâs right to
privacy was involved
since the content of telephone conversations or
text messages was not involved. I disagree. The simple fact that the
cell phone companyâs
records relate to the use of cell phone
numbers allegedly used by the accused gives them a sufficient
interest in the subject matter
to object to its admissibility. The
fact that the records do not reveal the content of telephone calls or
text messages does not
mean that the accusedsâ right to privacy is
unaffected. Information regarding to whom cell phone calls are made
or from whom they
are received, is, in the normal course, personal
information which may be protected under oneâs right to privacy.
Although a suspect
or an accused person may, in practice, have no
initial right to object to such information being disclosed by a
third party under
a s 205 subpoena to a court or the prosecuting
authorities, there can be no reason in principle why, as and when
such evidence is
tendered at trial, such person cannot raise an
objection to the admissibility thereof.
[13] The magistrateâs approach to
the applications for the subpoenas reveals, in my view, an
unsatisfactory state of affairs. Section
205 contains far-reaching
provisions for the procurement of information from potential
witnesses. Failure to comply with the subpoena,
directed at persons
âlikely to give material or relevant information as to any alleged
offenceâ, exposes the recipient to the
fine or imprisonment
previously mentioned - although s 205(4) does provide that no person
shall be sentenced to imprisonment unless
the presiding officer
concerned is âalso of the opinion that the furnishing of such
information is necessary for the administration
of justice or the
maintenance of law and orderâ.
[14] The reported cases dealing with s
205 are testimony to the conflicting interests and values which can
be thrown up when its provisions
are used, indiscriminately or not.
Apart from the obvious conflict between media interests and the
demands of the criminal justice
system, a s 205 subpoena can raise
not only the issue of the right to privacy of the witness,
particularly in cases where documentation
is concerned, but that of
the
suspect
concerned. Recognizing these conflicting interests
and the potential inroads upon basic rights, the courts have held
that the function
of the issuing magistrate (or judge) involves the
exercise of a judgment as to whether the circumstances warrant the
issue of a subpoena.
The issuing magistrateâs function is decidedly
not that of a ârubber stampâ. See
Haysom v Additional
Magistrate, Cape Town and Another, S v Haysom
1979 (3) SA 115
(C)
at 158F â G and
Matisonn v Additional Magistrate, Cape Town and
Another
1980 (2) SA 619
(C) at 65. The provisions of s 205 passed
constitutional scrutiny in
Nel v Le Roux N.O. and Others
1996
(1) SACR 572
(CC) where it is was held that they were âas narrowly
tailored as possible to meet the legitimate State interest of
investigating
and prosecuting crimeâ (at 583G â H). In concluding
that there was no substance to the various constitutional challenges
mounted,
the court had regard to the context of the s 205 proceedings
as a whole. It noted that the subpoena is obtained at the request of
an attorney general (now the Director of Public Prosecutions) or an
authorised public prosecutor and can only be issued at the instance
of an independent judicial officer. This observation underlines the
importance of the issuing magistrate giving proper consideration
to
whether a case has been made out that the potential witness âis
likely to give material or relevant information as to any alleged
offenceâ¦â.
[15] The approach seemingly adopted by
the magistrate in the present matter to the application for
subpoenas, namely, granting them
largely on the strength of the
reputation of the applicant and not considering the merits of the
application, is impermissible. Whilst
it would not be irregular, in
my view, to consider such an application by having regard to no more
than the contents of witness statements
in the docket, a preferable
procedure would be for the investigating officer to set out in an
affidavit the grounds on which the
subpoena is sought and, if
appropriate, identify therein the particular witness statements upon
which the application is based.
[16] Ms. Booysen, for the State, cited
the evidence of the informant and the various police officers who
interacted with him in an
effort to persuade the court that the
subpoena was necessary and justified upon the information then
available to the investigating
officer. In my view there is no point
in considering this evidence since none of it was placed before the
issuing magistrate. His
failure to exercise a judicial discretion as
to whether the subpoenas were warranted in law was so complete that
the proceedings
cannot and should not be salvaged by this court
considering,
ex post facto
, whether, if the available
information had been placed before the magistrate, the issuance of
the subpoenas would have been justified.
[17] In the circumstances I ruled that
any information obtained from the cell phone companies pursuant to
the two subpoenas and relating
to the relevant cell phone numbers in
question i.e. those attributed to accused numbers 1, 2, 3 and 6, were
inadmissible.
THE WARRANTS OF ARREST
[18] The main ground of attack upon
the warrants of arrest relating to accused 1, 2, 3, 6 and 7 was the
authorising magistrateâs
lack of territorial jurisdiction to grant
same. The warrants of arrest state that the accused were to be
arrested in connection with
an armed robbery which took place in
Darling in August 2003 i.e. the second of the armed robberies. It is
common cause that the location
of this armed robbery fell within the
territorial jurisdiction of the Malmesbury magistratesâ court.
Uncontested evidence was that
by early October 2003 the investigating
team were of the view that they had sufficient information
implicating the accused to justify
seeking warrants of arrest. They
decided to approach the magistrate in Malmesbury to apply for the
warrants but, as a result of a
telephone conversation with the
control prosecutor there, they were referred to the Cape Town
magistrateâs court. As a result the
application for the warrants
was ultimately brought before chief magistrate Jooste in the Cape
Town magistrateâs court. This was
the evidence of one of the
investigating officers, Inspector Jonker. Notwithstanding that his
first step had been to approach the
Malmesbury magistrate for the
warrants, the witness equivocated somewhat when taxed with the
question of whether the magistrate in
Cape Town had jurisdiction to
issue the warrants.
[19] In this regard the provisions of
s 43 of the Act are clear. A magistrate may issue an arrest warrant
upon the written application
of
inter alia
a police officer
when three jurisdictional requirements have been met. One of these is
that the written application must at least
allege that the offence
for which the warrant is sought was committed within the area of
jurisdiction of such magistrate or, where
the offence was not
committed within such area, which alleges that the person sought to
be arrested is known or is suspected be within
the area in question.
It is common cause that the statements which were placed in front of
the Cape Town magistrate in support of
the application did not rely
on the second qualification. Mr Jooste, who authorised the warrants,
had no independent recollection
of the application. As chief
magistrate of Cape Town he had administrative jurisdiction over a
number of other magisterial districts
in the Western Cape but no
documentation describing the limits of such authority was put before
court.
[20] Jooste testified that the normal
procedure which he follows is to consider the written application for
an arrest warrant, which
is completed on a J50 form by the police
officer, together with supporting documentation such as sworn
affidavits. He also sometimes
relies on information supplied to him
informally by the investigating officer. If satisfied that the
requirement of s 43 are met
he signs the warrant/s. He added that if
the alleged offence was committed in a district other than the Cape,
the warrants were normally
issued by the magistrate of such district.
If he himself was in doubt about whether he had jurisdiction he would
not sign the warrant.
[21] Once again, unfortunately, the
evidence reveals that the magistrate must have failed to apply his
mind to a fundamental requirement
for the authorisation of a warrant
of arrest, namely, whether the offence was alleged to have been
committed within his courtâs
jurisdiction or not. Had he done so he
would undoubtedly have reached the conclusion that the matter fell
under the jurisdiction
of the Malmesbury magistrate. The State
initially sought to counter this defect in the warrants by arguing
that the magistrateâs
extended jurisdiction, in terms of
s 2(2)
of
the
Magistratesâ Courts Act, 32 of 1944
, entitled him to issue
warrants in respect of offences committed in other magisterial
districts falling under his administrative
control and, secondly,
upon the basis that theft, a conviction for which is a competent
verdict on the charge of armed robbery, was
a continuing offence. In
this regard it was contended that the evidence revealed that the
planning and execution of the armed robbery
extended into the Cape
Town magisterial district.
[22] I understood the State to
ultimately abandon these arguments, correctly so in my view.
Section
2(2)
of Act 32 of 1944 makes provision for the creation of an
administrative region âfor administrative purposesâ. There is no
basis
for interpreting this section as extending a magistrateâs
judicial powers to include authorising arrest warrants in regard to
offences
committed in other magisterial districts. The other leg to
the Stateâs argument is similarly without substance. Whilst theft
is
a competent verdict on a charge of armed robbery, no case was made
out either in the evidence in the trial-within-a-trial or, more
importantly, in the application for the warrants of arrest that the
theft had commenced or continued into the Cape Town magisterial
district. The robbery took place near Darling and what became of the
cargo of cigarettes is quite unclear. Nor was there any suggestion
that this approach was considered by chief magistrate Jooste when he
considered the original applications.
[23] The conclusion is thus
inescapable that the arrest warrants were technically defective by
reason of having these sought from
and authorised by a magistrate
lacking jurisdiction to do so. It is worth noting that had the
witnesses Jooste and Venter been called
early in the lengthy
trial-within-a-trial proceedings they could have been substantially
shortened.
[24] Counsel for the accused also
contended that the warrant was defective by reason of having not been
executed in terms of the order.
The wording of the warrants required
the arresting official to keep the accused in custody and, in
accordance with the provisions
of s 50 of the Act, to bring them
before the Cape Town magistrateâs court. After their arrest in
Gauteng on 9 October 2003 the
accused appeared the following day in a
local magistrateâs court whereupon the matter was postponed and, in
accordance with certain
warrants, they were transferred to the
district court in Malmesbury. From that court they were eventually
remanded to the regional
court in Cape Town. Having regard to the
provisions of s 50 of the Act which deals with the procedure to be
followed after arrest,
it would appear that the accusedsâ
appearance in the Germiston magistratesâ court was unnecessary. It
was the Stateâs obligation
to transport them to the Cape Town court
as soon as reasonably possible. Strictly speaking the accused should
first have appeared
in the Cape Town magistrateâs court, as the
warrant decreed, and their appearance in the Malmesbury magistrateâs
court in the
first instance seems to represent a belated recognition
that the warrants of arrest should have been issued out of that
court. Notwithstanding
these further technical defects in the
execution of the warrant, I can see no reason why they should have
any bearing on the lawfulness
of the warrants in the first place, or,
more importantly, on the lawfulness of the search and seizure
operations conducted immediately
after the accusedsâ arrest.
[25] The third ground upon which the
validity of the warrants was challenged rests, as I understand it
upon a dual basis. In the first
place it was contended that the
evidentiary material placed before chief magistrate Jooste in support
of the application of the warrants
was either misleading or
incomplete to such an extent that the warrants should never have been
issued. Allied to this argument was
the contention that in any
consideration of whether the warrants should have been authorised,
all evidence emanating from the s 205
subpoenas served upon the cell
phone companies in respect of the accused had to be disregarded.
[26] Section 43 provides that the
written application for an arrest warrant must state that â
from
information taken upon oath there is a reasonable suspicion that the
person in respect of whom the warrant is applied for has
committed
the alleged offence
â. The correct approach to the discretion to
be exercised by the magistrate considering the application for the
warrants was set
out more than 50 years ago in
May v Union
Government
1954 (3) SA 120
(N) at page 125B in relation to a
similarly worded clause: ââ¦
s 34 does not prescribe, as an
essential prerequisite of the issue of a warrant, that all the
material facts necessary to obtain a
conviction should have been
deposed to on oath. The section requires only reasonable grounds of
suspicion but these reasonable grounds
must appear from the sworn
informationâ¦
.
I have no doubt that the sworn information
must be looked at in its context of all the known facts of the
situation, whether deposed
to on oath or not. Nor have I any doubt
that, in forming his suspicion the official concerned is not obliged
to accept the sworn
information as true. He may believe some of it
and disbelieve some; he may even, perhaps, disbelieve it all.
Information on oath
he must have and from that information, looked at
in its proper context, he must be able to form a reasonable
suspicion
.â
[27] It was common cause that the
application before magistrate Jooste was founded upon three
affidavits, namely, those of the investigating
officer at that stage,
Heydenrich, one of his assistants, Speed, and an investigator in the
employ of BATSA, one Cottle. Furthermore,
Cottle attended before the
magistrate and made a presentation showing the routes that the BATSA
vehicles took immediately prior to
the robberies in July and August
and demonstrating simultaneous cell phone usage of the various cell
phone numbers attributed to
the accused. This presentation was based
on the cell phone records obtained in terms of s 205 of the Act and
the tracking devices
fitted to the BATSA vehicles. The general effect
thereof was to produce strong circumstantial evidence indicating the
involvement
of the cell phone numbers, and in turn their alleged
users.
[28] In the light of the ruling that
the information obtained pursuant to the subpoenas is inadmissible,
the question which must
first be answered is what weight it can be
given in a determination of the validity of the warrants of arrest.
In my view, to accord
any weight to it would have the effect of
indirectly rendering it admissible. Without purporting to subscribe
unreservedly to a âfruits
of the poisoned treeâ approach, as was
urged by defence counsel, I regard it as inappropriate to place such
evidence in the scales
when considering the validity of the warrants
of arrest because of the egregious nature of the irregularity in the
s 205 process.
In any event the rigid exclusionary doctrine embodied
in the aforementioned doctrine does not form part of our law. See
S
v Melani and Others
1996 (1) SACR 353e
,
S v Malefo en Andere
1981 (1) SACR 127
(W) and
S v Marx and Another
1996 (2)
SACR 140
(W).
[29] Senior Inspector Heydenrychâs
affidavit relied heavily upon the cell phone data in implicating the
accused in the Darling robbery.
If such information is excluded it is
doubtful whether on the strength of this affidavit a judicial officer
would have been justified
in issuing warrants of arrest. The second
affidavit placed before the magistrate, that of Inspector KD Speed,
although concerned
principally with how the cell phone numbers (of
the accused) were obtained from the informant, revealed more
substantial grounds
for identifying accused numbers 1,2 6 and 7 as
involved in the robbery. Speed had travelled to Gauteng and
interviewed the informant,
Mentoor, who had previously communicated
with the police only telephonically. According to Speedâs
affidavit, Mentoor had furnished
him with cell phone numbers for the
aforementioned four accused, whom he identified as persons he
believed, on undisclosed grounds,
to be involved in the commission of
the robberies. On this affidavit alone it is doubtful whether the
issuing of arrest warrants
would be justified since there is little
if any substantiation of the informantâs belief that the suspects
were involved in the
robberies.
[30] Apart from the above shortcoming
various attacks were launched on the informantâs claim to knowledge
of the involvement of
the accused in the robberies. To a large extent
these attacks were based upon a comparison of the evidence of
Mentoor, who testified
in the trial-within-a-trial, and Cottle
regarding what Mentoor told him prior to the application for the
warrants. This challenge
was entirely misconceived. I can see no
basis upon which a discretion exercised by a magistrate considering
an application for an
arrest warrant can be tested against evidence
which emerges in a subsequent trial casting doubt on the contents of
the affidavits
on which the magistrate originally relied. The
exercise of the magistrateâs discretion can properly and logically
only be tested
against the contents of the affidavits placed before
such official and on which he/she relied. The only (apparent)
exception to this
approach which comes to mind is where evidence is
presented that the official applying for the arrest warrant
mala
fide
put false or misleading information before the judicial
officer. I can conceive that in such a case the fact that the
judicial officer
acted bona fide may not necessarily render the
warrant immune to challenge. However, no case was made out that the
investigating
officer and/or Cottle had deliberately put false or
misleading information before the magistrate.
[31] Finally, also put before the
magistrate was the sworn affidavit of Cottle. He was the first person
to interview Mentoor and had
discussions with him on several
occasions regarding to the identity of the persons allegedly involved
in the BATSA robberies. Cottleâs
affidavit describes in some detail
his dealings with the informant who had advised him that the five
accused in question were known
by him to be directly involved in the
robberies. Further, the informant is reported by Cottle as having
himself heard two of the
accused planning the second robbery. He
furnished the names and telephone numbers of the five accused to
Cottle. Using this information
Cottle had independently established
that three of these persons could well have been directly involved in
the third BATSA robbery
which had just taken place in Port Elizabeth.
Accordingly, even excluding the evidence obtained pursuant to the s
205 subpoenas,
there was material on oath before the magistrate
which, on the face of it indicated âa reasonable suspicionâ that
the accused
were involved in the robberies. I do not regard it as
fatal to the application that the informantâs information or
allegations
were themselves not on oath. In my view it was sufficient
that his allegations of the accusedsâ involvement appeared from the
affidavit
of two responsible officials who had interviewed him and
who considered such information to be credible and, in Cottleâs
case,
had followed up such information.
[32] In summary then, I find that,
even entirely excluding any evidence obtained from the s 205
subpoenas, there was enough information
on oath before the magistrate
for him to have formed a reasonable suspicion that the accused were
involved in the Darling robbery.
The warrants were defective only in
so far as the issuing magistrate did not have the territorial
jurisdiction to authorise them.
THE SEARCHES AND SEIZURES
[33] It is appropriate now to
consider, in more detail, the challenge to the admissibility of
evidence obtained pursuant to the search
and seizures following upon
the arrest of the accused. In broad terms it is contended on behalf
of the accused that, no search warrants
having been authorised, there
were no reasonable grounds to search the premises of the arrested
persons and seize material. In addition,
in as much the search and
seizures were made pursuant to the arrests, it is contended that
since the warrants of arrest were defective
all seizures flowing from
the arrests were âunlawful, wrongful and unconstitutionalâ. It
was also contended that the searches
were âat variance with the
Constitution and the guidelines as set down by case lawâ. This last
contention appears to derive from
criticism of the manner in which
the police performed the individual searches.
FACTUAL BACKGROUND TO THE
SEARCHES
[34] The arrest warrants were obtained
from the Cape Town magistrate on 7 October 2003. On the following day
several members of the
Cape Town investigating team arrived in
Johannesburg and renewed contact with the head of the East Rand
Serious and Violent Crimes
Unit, Superintendent Du Plessis, who had
previously been involved in aspects of the investigation.
Arrangements were made for an
operation in the early hours of 9
October to arrest the five suspects, co-ordinated by Supt. Du
Plessis. To this end he assembled
40 to 45 police officers who met at
the offices of the Brixton Murder and Robbery Unit on the night of 8
October and were briefed.
The group was divided into 15 sub-groups.
Du Plessis also met the leaders of the sub-groups to discuss the
execution of the warrants.
Present as well were three members of
BATSAâs security staff including Cottle. Although there were
warrants of arrest for five
persons, Du Plessis had a total of eleven
addresses for the suspects. BATSA security staff had played a large
role in compiling the
eleven addresses and preparing maps and
directions for each group. According to Du Plessis the BATSA
employees were asked to avail
themselves to help find the addresses
and were also there to identify any cigarettes which might be found.
Du Plessis tried to arrange
a police photographer but was
unsuccessful and therefore his deputy, Captain Botha, was asked to
take along a camera. One of the
BATSA officials also volunteered to
use his camera. Each group had at least one vehicle and were assigned
different tasks. Some were
required to patrol the relevant areas in
the event of a possible escape whilst eleven of the groups were each
assigned an address.
[35] At the briefing the
modus
operandi
involved in the armed robberies was explained and the
leaders were instructed to be on the look-out for certain types of
vehicles
reported as being involved in the robberies as well as cell
phones, firearms and police uniforms or insignia since these too had
been involved in the robberies. Each group was handed forensic bags
to store any evidence they might find and were instructed to
call
Supt. Du Plessis to seal the forensic bags himself. Du Plessis held
the originals of the warrants of arrest and handed out copies
of the
warrants to the various groups who were assigned to search a specific
address with a view to arresting a particular suspect.
After leaving
Brixton the group assembled at a central point and from there left
for the different addresses with instructions to
reach each one at
02h30 a.m. In the result all the suspects were found and arrested and
evidence seized from their residences. Du
Plessis, at the request of
his subordinates, attended at the scene of a number of the searches
during the night, most notably that
of accused number oneâs
premises.
[36] Relying on
Park-Ross v
Director: Office for Serious Economic Offences
1995 (2) SA 148
(C) at 172 it was contended on behalf of the accused that the search
and seizures of the accusedâs premises should only have taken
place
in terms of a search warrant. In terms of the Act there are, however,
various circumstances in which are the police entitled
to search the
persons and/or their premises without a warrant. S 22(a) of the Act
authorises a police official to search â
any person or container
or premises for the purposes of seizing any article⦠if the person
concerned consents to the search for
and the seizure of the article
in question, or if the person who may consent to the search of the
container or premises consents
to such search and the seizure of the
article in questionâ¦
â.
[37] Section 22(b) of the Act provides
that a police official may search without a search warrant â
if
he on reasonable grounds believes⦠that a search warrant will be
issued to him⦠if he applies for such warrant; and⦠that
the
delay in obtaining such warrant would defeat the object of the
search
â. In addition, s 23(1) of the Act provides that an
arresting officer may â
â¦search the person arrested and seize
any article⦠which is found in the possession of or in the custody
or under the control
of the person arrestedâ¦
â.
[38] In terms of s 20 the articles
which may be seized fall into three classes. Two of them are relevant
to the present matter, namely,
an article:
â
(a)
which
is concerned in or is on reasonable grounds believed to be concerned
in the commission or suspected commission of an offenceâ¦
which may
afford evidence of the commission or suspected commission of an
offenceâ¦
â.
Finally, s 29 of the Act provides that
a search of any person or premises shall be conducted â
with
strict regard to decency and order
â¦â.
[39] Du Plessis testified that since
they only received the eleven addresses that night they did not have
time apply for search warrants
because they had to get to the
addresses as quickly as possible. As he understood the situation he
would have to have made application
to a magistrate in another
district. There does not appear, however, to be any compelling reason
why the arrests and searches had
to be effected that very night. Du
Plessis testified that he had not previously applied for search
warrants and, in my view, the
more likely reason why search warrants
were not applied for was that such a procedure would take some time
and was not usually followed
whereas the police were eager to arrest
the suspects and conduct any searches as soon as possible.
[40]
Park-Ross
is not authority
for the proposition that every search conducted other than in terms
of a warrant issued by a judicial officer is
unlawful or is in breach
of the subjectâs constitutional rights. Tebbut Jâs declaration
that s 6, as it then read, of the Investigation
of Serious Economic
Offences Act, 107 of 1991, must be seen in its context, namely, the
special provisions which allowed the director
of the Office for
serious economic offences to conduct search and seizures without any
judicial warrant. I am unaware of any direct
challenge to the
constitutionality of the search and seizure provisions in
s 22
or
23
of the
Criminal Procedure Act. In
Investigating
Directorate:
SEO v Hyundai Motor Distributors
[2000] ZACC 12
;
2001 (1) SA 545
, the
Constitutional Court held that the successor to the search and
seizure section considered in
Park Ross
,
s 29(5)
, was
constitutional in that it provided sufficient safeguards against an
unwarranted invasion of the right to privacy and that the
limitation
of the privacy right was reasonable and justifiable.
Section 29(5)
appears to have been enacted in response to
Park-Ross
and made
provision for any search and seizure operations to require prior
authorisation from a magistrate or a judge on application
under oath.
Langa DP, as he then was, referred in passing to
ss 20
and
21
of the
Criminal Procedure Act but
nowhere suggested that any search and
seizure effected without a warrant is
per se
unconstitutional.
[41] Although it clearly is desirable
that, wherever practicable, searches should be conducted pursuant to
a judicially authorised
search warrant, search and seizures in the
circumstances envisaged by ss 22 and 23 of the Act remain lawful and
do not necessarily
breach the constitutional rights of persons
subjected there to. I do not propose to go into a full constitutional
analysis of these
sections since no direct argument or challenge was
launched by the accusedsâ counsel against their constitutionality.
Suffice it
to say that ss 22 and 23 contain partial safeguards
against an abuse of the powers of a search and seizure for which they
provide,
namely, consent on the part of the person being searched,
urgency and, in the case of s 23, its limitation to the situation
where
a suspect is being arrested. The ultimate safeguard is, of
course, the discretion of the trial court to receive such evidence or
not having regard to the particular circumstances of the search and
seizure. In my view taking into account these and other factors,
the
provisions of ss 22 and 23 of the Act represent justifiable
limitations upon the right to privacy as envisaged in s 36 of the
Constitution.
[42] It is thus necessary to consider
in each case of the five separate searches whether the accused did in
fact consent to their
personal premises being searched and at the
same time to consider various other objections raised concerning the
manner in which
the searches were conducted.
ACCUSED NUMBER ONE
[43] Snr. Insp. Lemmer led the group
which arrested accused number one, who is wheelchair-bound, at his
residence and searched it.
Two cell phones were seized and a box in
which one of the cell phones had apparently been bought. Lemmer
testified that he identified
himself as a police officer, showed a
copy of the warrant of arrest to the accused and explained the
purpose for his visit. Accused
number one afforded him access to his
residence and consented to it being searched. Accused number one did
insist upon seeing the
original of the warrant of arrest and Lemmer
therefore made contact with Supt. Du Plessis who eventually arrived
with the original
warrant. Only after the original warrant was shown
to accused number one by Lemmerâs colleague, Insp. De Lange, was he
informed
of his rights and arrested. According to Lemmer, apart from
having to scale the locked gate to the premises no force was used in
gaining entry to the house.
[44] Du Plessis testified that he had
searched a red Jetta with a bullet hole on accused number oneâs
premises but found the cubby-hole
locked. Accused number one had
given him permission to search the vehicle and gave him the keys to
the vehicle. Upon enquiry, however,
Du Plessis was told that there
was no key to the cubby-hole. Finding this strange he proceeded to
break open the cubby-hole looking
for a fire-arm. This was the only
damage done in the course of the search.
[45] Various propositions were put by
accused number oneâs counsel both to this and other witnesses
involved in the arrest and search
taking issue
inter alia
with
evidence that the accused had consented to the search or was shown
the original of the warrant of arrest. Further allegations
were made
concerning the propriety of the search and alleging that it
constituted an unjustifiable invasion of the accusedâs right
to
privacy. However, there was no evidence from the accused himself or
any witness on his behalf to substantiate these allegations.
[46] Certain aspects of the search
which were not in dispute were also criticised; one such area was the
presence and role of two
or three BATSA officials in the searches. I
do not regard their presence as materially affecting the lawfulness
and orderliness of
the searches. These officials were under the
control of the police at all times and, apart from the stand-in
photographer who took
some photographs, they appeared to have been
largely passive observers.
[47] In several instances it was also
contended that the police had acted outside their powers in seizing
two cell phones when told
by an accused that one belonged to his wife
or companion. This does not seem to have been contentious or objected
to at the time
of seizure and there was no evidence or proof of
ownership or exclusive use being raised by the other party at any
point. Given that
cell phones pass easily from hand to hand, the
central role which they played in the offences and the data which
might be forthcoming
therefrom, I am persuaded that the police were
within their rights to seize both phones in such circumstances.
[48] Since the evidence furnished by
the arresting and searching officers relating to what happened at
accused number oneâs premises
was, on the face of it, acceptable,
there is no basis for rejecting their version of the arrest and
search. I find then that accused
number one did in fact consent to
the search of his premises and his motor vehicle.
ACCUSED NUMBER TWO
[49] The team which attended at
accused number twoâs residence to arrest him and conduct a search
was led by Inspector D Khutoane.
Another member of the party,
Sergeant Smith, also testified regarding the circumstances of the
arrest and search. Smith testified
that they were given access to
accused number twoâs residence by a woman who appeared to be the
accusedâs wife and to whom they
identified themselves to as police
officials. The accused was on crutches as a result of a gunshot wound
to his right leg. He was
arrested and consented to his premises being
searched. Upon enquiry the accused pointed out two cell phones, one
apparently his and
the other his wifeâs. Both phones were seized
and eventually placed in forensic bags.
[50] An unlocked outside room was
brought to the attention of Smith and Khutoane and they asked accused
number twoâs wife to accompany
them in a search thereof since
accused number two was not mobile. She refused to do so. When the
room was searched a black plastic
bag was found containing a variety
of items of police uniform and insignia. When confronted therewith
accused number two denied any
knowledge of the bag or its contents.
He also refused to sign documentation confirming the seizure thereof
by the police. Both policemen
testified that no force was used nor
damage done during the search and that it was conducted in an orderly
manner.
[51] In cross-examination various
allegations were put to the police suggesting that the search was
conducted in a disorderly fashion,
without the accusedâs consent
and that access to the premises had been gained by force including
the tranquilising or killing of
one or more dogs which patrolled the
premises. All these allegations were denied by the policemen involved
and no evidence was led
by the accused or any witness on his behalf
to substantiate them. In the circumstances and given that the
evidence of the police
was, at face value, quite acceptable, I find
that the accused consented to the search of his premises and ensuing
seizures and further
that the police were entitled to seize the cell
phones and police insignia given their potential relevance to the
crimes involved
in the investigation.
ACCUSED NUMBER THREE
[52] The group which arrested accused
number three and searched his premises was led by Inspectors Berends
and Serg. Ramolobeng. The
accusedâs cell phone was seized as well
as a white
Volkswagen Golf
which apparently belonged to him. Both policemen testified that they
were given access to the house by the accusedâs female companion.
Upon their request and after identifying themselves to him and
advising him of the arrest warrant, the accused handed them his cell
phone. The accused however prevaricated about his identity and it was
only when a cell phone number attributed to him was dialled
causing
his cell phone to ring that an end was put to any doubt concerning
his true identity. After seizing the accusedâs cell
phone,
permission was sought from him and from his companion to search the
house which permission was duly given. Nothing further
was found
apart from the vehicle outside the premises. That vehicle was seized
on the basis of information given at the prior briefing
that a white
Golf
had been involved in the armed robbery of the BATSA vehicles.
[53] In cross-examination it was put
to the police witnesses that the door of the house had been broken
down and that a large amount
of cash had been stolen from the accused
during the search as well as a watch and neck chain. Other
allegations were also made relating
to the details of the search but
since neither the accused nor any witness gave any witness on his
behalf and given the
prima
facie
acceptability of the
police evidence, these allegations can be given no weight.
[54] I find then that the accused
and/or his companion consented to the search of the premises.
ACCUSED NUMBER SIX
[55] The accused was arrested by a
team led by Insp. Ngobeni who seized the accusedâs cell phone after
a search of his room. Ngobeni
testified that the accused opened the
door to the dwelling whereupon they identified themselves to him and
confirmed his identity.
The accused was shown the warrant for his
arrest which was explained to him and whereupon he was arrested. The
police asked the accused
to point out his bedroom which he duly did
giving permission to them to search it. The accused pointed out his
cell phone when asked
if he had one. This was seized and the accused,
again upon request, furnished Ngobeni with his pin number for the
phone.
[56] Ngobeni denied allegations put to
him in cross-examination that the police had broken down the safety
gate and the door, violently
arrested the accused and had neither
shown the warrant to the accused nor asked for permission to search
his room. These allegations
were not substantiated by evidence from
either the accused or any witness called on his behalf. In the
circumstances the police version
of events must at this stage be
preferred and I find that the accused consented to the search of his
room where his cell phone was
found.
ACCUSED NUMBER SEVEN
[57] Inspectors Van Vuuren and Strydom
led the team which arrested accused number seven and searched his
premises. Both testified
as to the circumstances of his arrest, the
search of his premises and the seizure of a white
Volkswagen
Polo
and a white
BMW
vehicle found on the premises as well as two cell phones and
documentation relating to the vehicles.
[58] Van Vuuren testified that they
had gained access to the premises when the door had been opened by
another occupant of the house.
The police identified themselves and,
upon confirmation by the accused of his identity, showed him a copy
of the warrant for his
arrest and advised him of his rights whereupon
he was arrested. The accused, together with a woman, was occupying a
room. He identified
one cell phone in the room as being his and the
other as belonging to his woman companion. Both cell phones were
seized. The accused
identified the vehicles found on the premises as
belonging to him and handed their keys to the police at their
request. The vehicles
were seized on the basis of information
received at the briefing that similar vehicles were involved in the
armed robberies. Both
witnesses testified that no force or violence
was used during the arrests or during the search.
[59] There was evidence that the
police also arrested another occupant of the house after he, at their
request, showed them a silver
firearm belonging to him. This was done
despite there being no warrant of arrest for this person and no other
indication, as far
as can be ascertained, of any connection on his
part to the robberies. This person was later released and had his
firearm returned
to him.
[60] In cross-examination it was put
to the witnesses that the accusedâs dogs had been shot in order to
effect the arrest, that
no copy of the warrant had been shown to the
accused and that he denied giving permission for the house to be
searched. These allegations
were denied and were not substantiated by
evidence from the accused or any witness. In the circumstances I find
that the search,
insofar as it affected accused number seven, was
conducted in an orderly fashion and that the accused gave consent.
ANALYSIS OF THE EVIDENCE
[61] There are, in my view, only two
grounds of any substance challenging the lawfulness of the search and
seizures which followed
upon the arrest of the accused. The first is
that the police, although able to do so, did not conduct their
searches under the authority
of a search warrant in terms of s 21 of
the Act whilst the second ground flows from the invalidity of the
arrest warrants.
[62] Although the lack of search
warrants was undesirable, for the reasons I have given this did not,
of itself, render the search
and seizures illegal or
unconstitutional. The question then is whether the searches fell
within the provisions of s 22(a) or (b)
of the Act. In regard to the
latter section, which provides for dispensing with the need for a
warrant in cases of urgency, the evidence
was that the police were
conducting an arrest and search and seizure operation involving five
accused and eleven addresses. Having
just obtained warrants of arrest
for suspects whom they believed to be implicated in a series of three
armed robberies (although
the warrant referred to only one), the last
of which had taken place only a week before, they were understandably
eager to make arrests
and search for evidence. Whilst obtaining
eleven search warrants would have been quite possible, it would in
all probability have
delayed the arrest and search and seizure
operation and certainly rendered it more complicated. Nonetheless,
the State failed to
make out a case satisfying the requirements of s
22(b) and it must therefore fall back on the provisions of s 22(a) of
the Act.
[63] I have found that on the evidence
all the accused consented to the searches of their premises. There is
no evidence that they
explicitly consented to the various articles
being seized but nor is there any evidence that any of them objected
thereto. It appears,
in the circumstances, that the accused tacitly
consented to the seizures. I conclude, therefore, that the searches
and seizures fell
within the provisions of the exception created by s
22(a) of the Act to the general rule that a search must be authorized
by a search
warrant.
[64] If I am incorrect in this
conclusion, the only possible lawful basis for the searches is s 23
of the Act which provides for searches
of persons arrested without
the authority of a search warrant. However, the arrest warrants were
invalid and unlawful by reason of
the lack of jurisdiction on the
part of issuing magistrate. To what extent, then, did this render the
search and seizures unlawful
or unconstitutional? In our
constitutional democracy the ultimate test for the admissibility of
evidence is governed by s 35(5) of
the Constitution which provides as
follows:
â
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.
â
[65] At the very least an unlawful
search would breach the subjectâs right to privacy in terms of s 14
which includes the right
not to have oneâs person or home searched
or oneâs possessions seized. More fundamentally, however, the
accused rights would
be infringed by virtue of the breach of the
principle of legality inherent in acting upon warrants of arrest
which were invalid in
law. This principle is of foundational
importance in our law. See
Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para 58. It does not follow, however, that simply because
the arrest warrants were defective the articles seized are
inadmissible
as evidence. This result follows only if the admission
of such evidence would render the trial unfair or otherwise be
detrimental
to the administration of justice.
[66] Only limited argument was put
before this Court, particularly concerning the first of these two
qualifications. Simply because
the accusedsâ right to privacy may
have been infringed does not necessarily mean that the admission of
the disputed evidence would
render their trial unfair. The question
of the effect of admitting such evidence is fundamentally one of
fairness but is not one
which can be asked or answered in a vacuum.
Guidance is to be found in several recent cases dealing with this
issue.
[67] In
S v M
2002 (2) SACR 411
(SCA) it was held that real evidence which obtained by illegal or
improper means is generally more readily admitted than evidence
so
obtained which depends upon the say so of a witness, the reason being
that it usually possesses an objective reliability. It does
not
âconscript the accused against himselfâ in the manner of a
âconfessional statementâ. In the case of all five accused
all the
evidence seized and objected to was real evidence in the form mainly
of cell phones, police insignia and uniforms and motor
vehicles.
[68] In
S v Pillay and Others
2004 (2) SACR 419
(SCA) the court reviewed authorities dealing with
evidence unconstitutionally obtained being excluded where its
admission would render
the trial unfair or otherwise bring the
administration of justice into disrepute. It concluded that the
Canadian courts have moved
in recent years towards an approach where
evidence, whether real or derivative, which is derived from
conscriptive evidence i.e.
self-incriminating evidence obtained in
violation of a constitutional right, will be excluded on the grounds
of fairness if it is
found that but for such conscriptive evidence
the derivative evidence would not have been discovered. The court
held that the question
whether the admission of evidence will bring
the administration of justice into disrepute requires a value
judgment which inevitably
involves considerations of the interests of
the public. Some of the factors which should be considered in such an
enquiry are the
nature of the evidence obtained, what constitutional
right was infringed, was such infringement serious or merely of a
technical
nature and would the evidence have been obtained in any
event.
[69] In the present case, assuming in
favour of the accused proof of an infringement of their rights to
privacy or legality, the search
of their premises and resultant
seizures cannot be described as minor. However, the infringement
occurred solely because the arrest
warrants were invalid. This did
not involve any
mala fide
action on the part of the police but
was simply the result of a technical defect in the warrants. The
investigating officer was initially
intent upon applying to the
Malmesbury magistrate for the warrants but was incorrectly advised by
an official of that court to approach
the Cape Town magistrate. There
is no suggestion that the investigating officer sought to gain any
unfair advantage by doing so or
that he was aware at the time that
that magistrate had no jurisdiction. The evidence reveals furthermore
that none of the other police
officers involved in the matter,
including those involved in the search and seizure operations in
Gauteng, had any inkling that the
warrants were not valid. There can
be little doubt that had the investigating officer applied to the
Malmesbury magistrate for the
warrants of arrest the application
would have been successful and searches pursuant thereto would also
have brought to light the
articles seized.
[70] A second important consideration
is that the accused were not conscripted into furnishing evidence
which would not otherwise
have been available to the police. All the
evidence seized was real evidence and was found without the active
co-operation of the
accused. Save for the bag of police uniforms and
insignia, the articles seized were in plain view. There was no
evidence that the
search and seizures were conducted in an
unreasonable, disorderly or unlawful manner (apart from the
underlying invalidity of the
warrant of arrest). Unlike
Pillayâs
case, admitting the impugned evidence in this case is most unlikely
to create any incentive for law enforcement agents to disregard
an
accused personâs constitutional rights and in that sense will do no
harm to the administration of justice.
[71] Particularly in the light of the
technical nature of the defect in the warrants, I can see no basis
for finding that the admission
of the evidence will render the
accusedsâ trial unfair. On the contrary, I am of the view that
should the evidence seized be held
inadmissible by virtue of this
technical defect, the accused will gain an unjustified advantage in
the trial and the administration
of justice will be brought into
disrepute in the eyes of reasonable members of the public in our
society. Finally, I should add that,
even if the search and seizures
in terms of s 22(a) infringed the accusedsâ constitutional rights,
I would still hold the evidence
to be admissible for the selfsame
reasons.
[72] For these reasons I ruled that
the evidence derived from the section 205 subpoenas relating to the
four telephone numbers attributed
to the accused was inadmissible but
that all the evidence seized pursuant to the arrest and searches of
the accused and their premises
was admissible.
_________________
LJ BOZALEK, J