Between finding evidence and getting a search warrant: illegal police occupancy of premises

A recent decision illustrates problems that arise because of a gap in the law. It also illustrates how judicial reasoning can be uninformative.
When a statutory power of warrantless search for drugs has come to an end, but stolen property has been discovered, the need for a search warrant to seize that property creates a gap in the continuity of lawful police action if they remain, without permission of the occupier, on the property pending grant of the search warrant. The consequences of this hiatus for the admissibility of the evidence of discovery of the stolen property was considered by the NZCA in R v H 25/8/04, CA233/04. On the facts of that case, the actions of the police in remaining in a garage attached to a dwellinghouse and sorting through property found there while they waited for the search warrant to be obtained, was held to be unlawful but reasonable. The Court held that even if the conduct was unreasonable the evidence would be admissible under the Shaheed balancing test as no adverse consequences flowed from the unreasonable conduct. What had occurred was merely a technical failure in the means used by the police to secure and preserve the evidence.
Plainly the decision is correct on the facts of the case. Readers may wonder what the Court meant when it said that no adverse consequences flowed from the conduct of the police. The Court does not elaborate, but presumably it envisages situations where police presence caused some loss to the accused, such as inability to earn a legitimate income during that period, or perhaps some extra-ordinary disruption to the legitimate daily routine of the occupier.
Shaheed requires that exclusion of the evidence should be a proportionate response to the misconduct. The difficulty that arises in judicial reasoning when the court proceeds to consider what the consequences would be if the search had been found to be unreasonably conducted, is that there are no facts in the case to illustrate such a finding, because the conduct that was found to have occurred was reasonable. To say that if the court had found the search to have been unreasonable, the balance would nevertheless favour admission of the evidence, tells us nothing about how the balancing exercise works because there are no illustrative facts.