019- Search And Surveillance Flashcards
What is the purpose of the act section 5?
Modernise law of search and seizure
Rules
recognise rights and entitlements
Ensure investigative tools effective
Define RGTS?
Sound basis for suspecting circumstance/situation exists
Define RGTB?
Sound basis for believing a circumstance/situation exists
In relation to search define what a lawful search is?
Search using:
Search warrant
Warrantless power
Consent
In relation to search define what a reasonable search is?
Complied with S21 NZBOR 1990 considers:
Nature
How intrusive
Where/when of search
If practicable you should apply for a search warrant. To use a warrantless search power You must have RGTB it is not practicable to apply for a warrant, what considerations can be applied and what should you do re these?
Time - to apply and approve warrant app
Securing scene (117)
Staff and resources - to minimise risk
EM at risk
Location and persons present
Record decision log in your NB
3 reasons why it’s preferred to use a search warrant?
- ensures judicial oversight
- protection for police/public
- reporting/recording of results
Section 92 - purpose of consent search? (4 reasons “ippp”)
“IPPP”
- prevent commission offence
- investigate if offence committed
- protect life/property
- prevent injury/harm
Before undertaking a consent search advise the person of?
Reason for search
They may consent or refuse
After consent is given for a consent search can consent be withdrawn?
Yes, may withdraw consent at anytime
What is the age limit for a consent search of a P V or T? And do you have to report a consent search?
14 or older to consent and no requirement to report
Evidential material means?
Evidence of offence, tangible/intangible and of relevance to the investigation of the offence
Define tangible in relation to evidence?
Something may be touched
Define intangible? (In relation to EM)
Unable to be touched, no physical presence
What is CADD?
Concealed
Altered
Damaged
Destroyed
Examples of CADD?
Concealed - buried items
Altered - remove serial #
Damaged - cut out firewall of stolen car
Destroyed - nom nom food/drugs
Section 131 - what ID/notice obligations are you required to give?
“RAIN advice”
Reason for search
Act - used for search
Intent - to enter and search
Name - ID self
Provide copy of warrant or act and reason if warrantless.
BOR to detained people for search
Outline exceptions to ID and notice requirements on search power?
(3 things)
Have RGTB:
No one present
Endanger any persons safety
Prejudice entry or ongoing investigation
Section 110 authorises you to?
“search powers”
Enter and search
Search item
Use reasonable force for search
Seize
Request assistance with entry/search
Use equipment/dog/handler
Copy document/intangible material
Access computer system
Take photos/vids
Outline section 116?
Secure PVT to be searched or if RGTB person obstruct/search; Exclude person or give direction
Section 118?
(“Additional search powers”)
Detain ppl, determine if any connection to object of search
Section 119?
(“Additional search powers”)
Search people if:
RGTB EM on person
RGTS possession dangerous item posing threat to safety and immediate action needed
Section 120?
(“Additional search powers”)
“Powers when suspect pursued”
fresh pursuit, RGTB EM on person may enter any place to apprehend and search P or V
AWOCA?
Ask - to comply
Why - reasons for action
Options - present them
Confirm - understand options
Action - arrest
Recognised privileged material is material from communications with?
Legal advisers
Ministers
Medical practitioners
Psychologists
Informers
Journalists
Practical procedures with privileged material?
Ensure person/rep present when searched
Give reasonable opportunity to claim privelege
They must list what claimed is privileged
Police inventory docs seized
Person may copy docs before taken
What must you satisfy and do before applying for a warrant?
RGTS imprisonable offence has/is/will committ
RGTB find EM of offence at PVT
Check target NIA for other applications/outcomes
Assess risks
Initial approval from supervisor
In terms of risk, risk must be:
Identified
Assessed before app and after
Consider in plan
Define section 117?
If SW app about to be made or waiting for approval, and RGTB EM may CADD before SW issued you may:
- enter and secure PVT
- secure any item there
- direct any person to assist with above
Power ceases when:
- expiry 6 hours when power used
- warrant available for execution
- warrant app refused
Who can be an issuing officer?
Judge (district/high)
Person authorised by A.G. Such as:
JP, magistrate, registrars
What restrictions can an issuing officer place on warrant?
- Restrict time can be reasonably executed
- require occupier to provide reasonable assistance to executing officer
- require report on warrant in specified time
What to do when search warrant is refused?
-reasons for refusal
- Consider issues and re draft
- resubmit
If issues can’t be addressed
- further inquiries
- TBC continue investigation w/o search
- if reasons not signing not justified submit report to legal services
Who may execute a warrant?
The person directed or any constable
How long is a warrant valid?
No more, 14 days from date issue as specified or no more than 30 days from date issue if justified why necessary and issuing officer satisfied
When can a SW be executed?
Anytime reasonable in circumstances or
At a restricted time required by issuing officer
When is a SW considered executed?
When have seized the EM specified OR
Leave the PVT searched and do not return within 4 hours
Thinking of risk, and preparing a SW execution you must?
Review/assess risk
Plan how to manage/minimise risk
Determine how risk management be communicated
Section 134?
(Application to postpone compliance with notice obligations)
If notice compliance would endanger safety of person or prejudice ongoing investigation then
Present application to postpone notice obligations to judge:
At time of SW application
Before 7 days passed after search warrant execution
GSMEAC?
Ground
Situation
Mission
Execution
Admin
Control command
Section 19?
If executing SW for drugs (MODA offence) may search any person found I. Place or vehicle
When you exercise a power to search a person you may?
“DUSS”
Detain
Use force
Search any item
Seize
Section 121?
Power to stop vehicle, satisfied grounds for search to exist may 3T to:
Execute warrant
Use warrantless power
Section 127?
“Executing SW for vehicle”
If RGTB veh there , enter place to:
Locate V to execute SW
Section 112?
Carrying out lawful search, not reasonably practical determine whether item can be lawfully seized may remove items to examine to determine if can seize lawfully
Eg: determine if large bag of unknown powder is drugs in drug warrant
Section 112, what is a lawful search under items of uncertain status powers?
If you are:
Exercising search power
Lawful search of a person
Lawfully in a place or vehicle
Section 123
Seize item, plain view when searching or observe if:
RGTB could have seized item under search warrant or power
(Eg: S8 entry to arrest a person, check a cupboard for them hiding in and locate bag of meth)
What section are production orders issued under?
Section 74
What section and duration for a production order?
Section 76, no more than 30 days after date order is made
What grounds does a district approver consider before approving a PO app?
Grounds met
Benefit investigation
Info not unreasonable/unnecessary
What 3 matters must an issuing officer be satisfied exist to allow an oral app for a PO be made and then if allowed what must be done?
- Written app result in delay that compromise effectiveness of search
- Whether order is to be issued can be determined orally
- all info reqd supplied
If allowed then:
- Issuing officer record grounds for application asap
- Applicant complete application form with grounds asap within 24hrs
Hearsay evidence (usually CHIS) can be used to outline grounds for applications if it is highly reliable. Indicate reliability of the hearsay by stating?
Info to prove reliability of hearsay
Informants reliability and whether given reliable info in past
Whether this hearsay has been confirmed by other means
Compensation for damage to property will seldom be paid if?
Execution of search power is justified by outcome and resulting loss/damage suffered by subject of search
(Good result at target address)
OR
Execution of search not justified by outcome but grounds for execution sound
(Negative result @ target add)
2 situations where compensation may be available for damage to property from search?
- Unjustified damage caused
- Search executed at wrong address
Policy on damage to property during search outlines what police employees must not agree to?
Must not indicate or incur any undertaking on behalf of police to rectify damage
Policy outlines if a claim is made or likely made re damage to property from a search the OC should address what points in a report to the DC?
- circumstances of execution
- grounds for execution
- damage caused
- outcome of search
- details of owner/occupier
- nature basis of claim
- any steps taken to prevent further loss/damage
After a forced entry premises mustn’t be left unsecured. Generally this will
Mean police do the following?
- liaise with owner to secure property
- owners request engage contractor at owners expense
- staff effect temp repair
Define what surveillance is?
Planned/directed activity, open or covert for purpose of:
- Observing/recording ons of PVT or places
- Track location of thing/person
- Intercept private comms
What is a surveillance device?
Device that assists/enhances normal capabilities to surveil.
3 types or kinds of surveillance device (SD)
Visual SD
Interception device
Tracking device
What is a visual surveillance device?
Electronic, mechanical, optical, electromagnetic, electrooptical (EMOEE)
apparatus, equipment, instrument, other device (AEIO) used to observe and record private activity
Section 46, activities for which surveillance device warrant required.
subsections a-e
a) ID for private comms
b) use of TD exclude if for sole purpose ascertaining if thing opened
c) obs private activity, private premises and any recording of obs by VSD
d) SD involves trespass to land/goods
e) obs private activity in curtilage of private premises if obs or recording by means of VSD
And exceeds:
3 hours in 24 hour period
8 hours in total
Private premises definition?
Private dwelling house, marae, any other non non private premises
(Why don’t they just say other private premises….!)
Non private premises def?
Premises where members of public frequently permitted to have access
Define private activity?
Participant in activity reasonably expect activity in private premises is private
In relation to private activity define what is the test for “ought reasonably expect”?
Objective test, what any person would expect
What is a private communication?
Comms made under circ”s reasonably indicate party to the comms desires it to be confined to the parties to the comms
What is trespass surveillance?
Surveillance that involves trespass onto land or goods
Surveillance devices may be used under warrant for trespass surveillance but will only be authorised for obtaining what and for what type of offence?
Obtaining evidential material of a serious offence - 7 years plus imprison
Curtilage
Land immediately surrounding house or dwelling including closely associated building and structures.
Defines boundary in which reasonable expectation of privacy and where common daily activities occur
What does intercept include in relation to private communication?
“ HLRRAM”
Hear, listen, record, monitor, acquire or receive communication when taking place or while In transit
What is an interception device?
Electronic, mechanical, optical, electromagnetic, electrooptical (EMOEE)
Apparatus, equipment instrument other device (AEIO) used to intercept/record a private communication
What is a voluntary oral communication?
Comms between 1 or more persons where atleast 1 person consent to comms being recorded
What is a tracking device?
Device help by electronic means to ascertain either/both:
- Location of thing or person
- whether thing opened/tampered
What type of offence can a surveillance warrant be obtained for to use a tracking device?
ANY imprisonable offence
1st ingredient of section 48?
Entitled to apply:
Would be entitled to make app for SDW as situation is serious criminal activity
2nd ingredient of section 48?
Impracticable in circumstances:
Need use device urgently, not practicable to obtain SDW
Surveillance w/o warrant in emergency permitted when what offences or situations exist?
- punishable 14 years plus and believe use of SD obtain EM of offence
OR
Arms act offence
Drugs offence
OR situ:
Likely cause injury surveillance necessary to prevent offending OR
Risk to life surveillance necessary as emergency response
Time limits on section 48 emergency surveillance?
Period not exceeding 48 hours
Who must approve an emergency S48 warrant?
D-I unless:
Immediacy doesn’t allow
Statutory criteria met
Ottorpunity arises to obtain EM would be lost otherwise
Reporting timeline for warrantless surveillance powers exercised?
Notification to judge within 1 month of last day or surveillance
How long may a SDW be issued for? What if it needs extending?
60 days.
Apply for a new one
