1. S&S - Search and Surveillance

Question 1

What is the purpose of the Act (s5)?

Answer 1

to facilitate the monitoring of compliance with the law and investigation and prosecution of offences in a way that is consistent with human rights values by:
• Modernising the law of search, seizure and surveillance, taking into account technology and regulating the use of technology
• Providing rules that recognise the rights and entitlements affirmed in other enactments
• Ensuring investigative tools are effective and adequate for law enforcement needs

Question 2

What will Police do to ensure they meet their objectives and obligations under the Act?

Answer 2

• Ensure they have lawful authority to conduct such activities
• Conduct risk assessments when using powers and mitigate risks to protect the safety of the public and employees in carrying out the Acts powers
• Only seize what are lawfully entitled to seize
• Provide appropriate announcements and identification in the exercise of these powers
• Satisfy requirements detailed in the Act

Question 3

Define RGTS and RGTB and reasonable grounds

Answer 3

RGTS – means having a sound basis for suspecting that a situation or circumstance exists.
RGTB – means having a sound basis for believing that a situation or circumstance exists.
Reasonable grounds – when you have formed a belief or suspicion you must be able to clearly describe your reasons (your reasonable grounds) for holding this belief or suspicion.

Question 4

What is the definition of a lawful search and a reasonable search?

Answer 4

Lawful search – one that is conducted with a SW, under a warrantless search power, or with the persons consent.
Reasonable search – one that complies with s21 of the BOR and considers factors such as the nature of the search, how intrusive it is, and where and when it takes place.

Question 5

What is meant by practicable in the circumstances regarding a SW? What are some considerations?

Answer 5

it at all practicable, you should apply for a SW in the first instance. If a SW is not obtained, this should be based on RGTB that it is not practicable to apply for a SW in the circumstances. Some considerations for this include:
• Is there time to gain approval and apply for a SW?
• Can the scene be secured?
• Are reasonable resources available?
• Is the EM at risk?
• Location of the search and who might be present

Question 6

Why should a SW be used?

Answer 6

a SW ensures judicial oversight, provides greater protection for Police and the public, and requires recording and reporting of results. This process provides a series of checks and balances to protect both the Police and the public.

Question 7

Before conducting a consent search, you must determine that the search is for one of the what reasons?

Answer 7

• To prevent the commission of an offence
• To investigate whether an offence has been committed
• To protect life or property
• To prevent injury or harm

Question 8

What must you advise someone whom you are going to conduct a consent search? What is the exception?

Answer 8

must advise the person of the reason for the search and that they may consent or refuse to consent to the search.

The exception is a person under 14 years who is unable to consent to the search of a place, vehicle or thing (unless they are driving with no passenger of or over 14 years).

Question 9

Define EM, tangible and intangible

Answer 9

Evidential material – means evidence of the offence, or any other tangible or intangible item, of relevant to the investigation of the offence.
Tangible – means something that may be touched.
Intangible – means ‘unable to be touched, not having a physical present’

Question 10

Provide some practical examples of CADD

Answer 10

Concealed - by burying or hiding items in another place or removing items
Altered - by changing or removing serial numbers from stolen property to disguise it
Damaged - by cutting out the firewall of a stolen car to remove an identifying feature
Destroyed - by consuming alcohol or drugs, burning clothing

Question 11

What are your obligations under s131?

Answer 11

You must:
• Identify yourself by name or unique identifier
• Announce your intention to enter and search
• State the name of the Act
• Give notice by providing a copy of the SW
• Caution any detained people

Question 12

What is required under obligation reason?

Answer 12

if using a warrantless search power you must state the reason for your search, provide a warrantless search notice to the occupier (POL1275), provide an inventory of items seized, report your use of certain powers, consider privilege.

Question 13

What are exceptions to identification and notice (s131)?

Answer 13

not required to comply with identification, intention and notice requirements on initial entry if:

• have RGTB that no one is present
• would endanger any persons safety
• prejudice the successful use of the entry and search power
• prejudice ongoing investigations.

Question 14

What should you do regarding obligations if no one is at home?

Answer 14

may use reasonable force to entre is RGTB no one is lawfully present. Must as soon as possible, and within 7 days, provide POL1275 and inventory of items seized.

Question 15

What additional powers of search does s110 authorise?

Answer 15

• Enter and search the place, vehicle or other thing, that you are authorise to enter and search
• Search any item or items found in that place, vehicle, or thin
• Use reasonable force in respect of any property for the purpose of carrying out the search and lawful seizure
• Seize anything that is the subject of the search or anything else that may be lawfully seized
• Request assistance with entry and search
• Bring and use any equipment found on the place, vehicle or other thing
• Bring and use a trained law enforcement dog and its handler
• Copy any document, or part of a document, that may be lawfully seized
• Access a computer system or other data storage device
• Copy intangible material e.g. computer data
• Take photographs, sound and video recordings and drawings

Question 16

What can you do if your search is impeded by any person?

Answer 16

if your search is impeded by any person, or if you have RGTB that any person would obstruct or hinder your search, can use s116 to exclude that person and give any reasonable direction to that person

Question 17

What are some additional powers available under s116-s120?

Answer 17

• S116 – can secure a place, vehicle or other thing to be searched and exclude any person from there if RGTB they will obstruct or hinder your powers
• S118 – can detain people when searching places and vehicles for the purpose of determining if there is any connection between a person at the place/vehicle and the object of the search
• S119 – can search people found when searching place/vehicle if RGTB that EM that is the object of the search is on that person, or if RGTS the person is in possession of a dangerous item that poses a threat to safety and immediate action in needed to address the threat
• S120 – if in fresh pursuit, and with RGTB that relevant EM is still on the person, have the power to enter any place to apprehend the person and search the person/vehicle.

Question 18

What is privileged material?

Answer 18

privilege allows the holders of particular information to refuse to disclose this info. No privilege applies if the info is for a dishonest purpose or to enable or aid any person to commit an offence. Includes info gained through communication with legal advisers, ministers of religion, medical practitioners, clinical psychologists, informants, and journalists.

Question 19

What are practical procedures for privilege?

Answer 19

you must ensure that the person or their representative is present when the search is undertaken and given the person a reasonable opportunity to claim privilege. Be aware that the person may make a copy of any document before you seize it, and they may object to the seizure of any document.