4. S&S Act & BOR Act Flashcards
How is “Evidential Material” defined according to the S&S Act?
In relation to an offence or suspected offence, means evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence.
Define “Reasonable grounds to Believe” according to the S&S Act
Having a sound basis for believing that a situation or circumstance actually exists, eg reasonable grounds to believe that the search will locate evidential material relating to that offence
Define “Reasonable Grounds to Suspect” according to the S&S Act
Having a sound basis for suspecting that a situation or circumstance is likely to exist, e.g. reasonable grounds to suspect that an offence has been committed.
What is a “Tracking Device” according to the S&S Act?
Tracking device means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
• the location of a thing or a person:
• whether a thing has been opened, tampered with, or in some other way dealt with, but
does not include a vehicle or other means of transport, such as a boat or helicopter.
What is an “Interception Device” according to the S&S Act?
• Any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but
• does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.
This definition covers all manner of listening devices, from sophisticated devices used to intercept communications through to simple audio recorders.
What is the definition of “Visual Surveillance Device” according to the S&S Act?
• Any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but
• does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
• This is a wide definition. It includes photographic and video cameras and binoculars, and it encompasses anything else that enhances normal vision.
Section 5 states that the purpose of the Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values. How is this done? (3)
(a) modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies
(b) providing rules that recognise the importance of the rights and entitlements affirmed in other enactments, including the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the Evidence Act 2006
(c) ensuring investigative tools are effective and adequate for law enforcement needs
What are two alternative search powers that might be appropriately exercised immediately upon arrest or when detained under a statutory power of detention?
~ a rubdown search, under sections 85-87, and
~ a warrantless search under section 88.
Note: A search may be carried out under one of these provisions before the search conducted under section 11 when people are locked up.
When should a person be searched under S11?
You may search a person who has been taken into lawful custody and is:
• at a Police station, or
• in other premises, or in, or about to be placed in a vehicle being used for Police purposes, and
• is, or is to be, locked up (pending a decision on bail or for any other reason).
What is the purpose of a search under s11?
The primary purpose of the section 11 search is not to look for or seize evidential material but to protect the detained person’s property and remove items that might be used to harm themselves or others.
You may take any money or other property found during the search.
(s11(4))
This power may be exercised before the person is locked up.
(s11(2))
Define “Locked up” according to the S&S Act
“Locked up” means a person taken into lawful custody and being placed behind a closed or locked door that prevents them from leaving. Examples are a cell or charge room at a Police station or a vehicle used for Police purposes (other than being placed in a Police vehicle only for the immediate purposes of transport)
When may a person be searched after being locked up?
After a person has been locked up they can only be searched if:
• they were not searched before being locked up, or
• since being searched before being locked up, they have been in, or are reasonably suspected of having been in, close proximity to:
− a person who was not locked up in Police custody (other than an enforcement officer or a searcher), or
− another person who was eligible to be searched after being locked up but was not, or
there are reasonable grounds to believe the person is in possession of anything that may be used to harm themselves or others.
(s11(3))
Explain the importance of timing for a section 11 search.
Apart from an immediate rub-down search of an arrested or detained person under section 85, or a warrantless search under section 88, avoid searching people under section 11 immediately after their arrest. If you do so, a further search under section 11 cannot be conducted after the person arrives at the police station unless one of the situations in section 11(3) exists.
If it is necessary to search a person in transit to remove valuable items to prevent the property from being stolen or to prevent an assault, then you should remove all property from the person.
When can a prisoner be searched more than once under S11?
If a prisoner undergoes a s11 custodial search and is locked up, a further s11 search can only be conducted if the exceptions in s11(3) apply.
If a prisoner has undergone a s11 custodial search at one station and is later transported to another station (having previously been “locked up”), a further s11 search can only be conducted if the exceptions in s11(3) apply. If you are certain that another search is required, you should undertake that search under s85 or s88 (eg to ensure the prisoner is not carrying anything that may be used harm any person, or facilitate their escape). The rationale for using the s85 or s88 search power is the power of detention that is being exercised at the destination station.
If not practicable to conduct the search under s85 or s88 you may consider a second search under s11 on the grounds that while the prisoner in transit they are no longer considered to be “locked up” until they reach the next place of detention where they are to be again “locked up”. However, this rationale has not been tested in court. Therefore, there is a risk of the search being found to be unlawful.
Any search must be reasonable in the circumstances.
When is a search warrant required?
Unless it is impracticable in the circumstances, you must obtain a search warrant before searching a place, vehicle or other thing.
Where it is impractical to obtain a search warrant, you may exercise a warrantless power to enter and search under the Search and Surveillance Act 2012, if the statutory requirements are met and the use of the power is reasonable in all the circumstances.
What does a search warrant authorise?
A search warrant may authorise you to enter and search any place, vehicle or other thing, for evidential material in respect of an offence punishable by imprisonment.
Who may apply for a search warrant?
Any constable may apply for a search warrant.
Other persons (eg an enforcement officer such as a customs officer) are authorised to apply under other enactments. If those enactments are specified in column 2 of the Act’s Schedule, the provisions of the Act governing how search and seizure powers are to be exercised apply to them.
(s97)
Note: Private individuals, eg private investigators, cannot apply for a search warrant. They may instead make a complaint of an offence to you. If you are satisfied that there are sufficient grounds for obtaining a search warrant, then you may apply for the search warrant for Police execution.
When can an application for a search warrant be made?
You can apply for a search warrant if you have reasonable grounds to:
• suspect an offence punishable by imprisonment has been, is being, or will be committed, and
• believe that the search will find evidential material in respect of the offence, in the place, vehicle or other thing specified in the application. (s6)
See the definitions for the meaning of “reasonable grounds to suspect” and “reasonable grounds to believe” and the difference between the two.
What must be submitted with a request for authorisation from your supervisor for a search warrant?
A ‘Planned Action Risk Assessment and CARD prompt’ must be submitted to the supervisor at the time of seeking authorisation.
With prior approval from the issuing officer, if it is impracticable to make a personal appearance, what may be done? (2)
If it is impracticable in the circumstances, you may, with prior agreement of the issuing officer:
• make an application orally, e.g. by telephone or personal appearance, or
• have your written application considered without a personal appearance before and/or without oral communication with the issuing officer
(s100)
When are oral applications for search warrants allowed?
An issuing officer may allow an application to be made orally (eg in person or by telephone call) and excuse an applicant from putting all or part of the application in writing if satisfied that:
• requiring a written application would result in a delay that would compromise the effectiveness of the search, and
• the question of whether the warrant should be issued can be properly determined on the basis of an oral communication or personal appearance, and
• all the required information (ie that required in a written application) is supplied to the issuing officer.
(s100(3))
If an oral search warrant application is made, what must be done in the S&S system and why?
When an oral application is made to the issuing officer, the applicant must enter (ie back capture) the application and the outcome(s) of the search warrant(s) as soon as practicable in the online search and surveillance system
Back capturing oral applications early, enables:
• the target history details to populate on any relevant future applications on the same target; and
• compliance with statutory requirements under the Act.
An issuing officer may allow an application without a personal appearance or oral communication if satisfied that … (3)
• the question of whether the warrant should be issued can be properly determined on the basis of the applicant’s written communication, and
• the information required for the application has been supplied to the issuing officer, and
• there is no need to ask questions of, or seek further information from, the applicant.
(s100)(4)
List the 12 steps in the process of applying for a search warrant
- Obtain initial approval - Where practicable, obtain approval from a supervisor of or above the position level of sergeant before completing a search warrant application
- Set up a NIA Case - Set up a NIA Case reference if one does not already exist. Note: Avoid identifying target addresses for forthcoming warrant applications in the narrative of the NIA case as this may compromise the security of subsequent warrant execution.
- Assess Risks - Consider the risks associated with executing the warrant if it is issued and what will be necessary to mitigate any risk of harm to Police and others. Note: A ‘Planned Action Risk Assessment and CARD prompt’ must be completed before the search warrant is executed and where practicable, before the application is authorised.
- Assess Community Impact - Assess the impact of executing the search warrant on vulnerable people, community and interest groups. Plan to eliminate or minimise compromising or undermining wider community support, confidence and reassurance. A Community Impact Assessment form (in Police Forms) must be completed before the search warrant is executed, and where practicable, before the application is authorised. Mentally update this as the situation changes during execution of the search warrant.
- Complete the application - Complete a search warrant application. Following the guidance on the application form will ensure the information required by sections 98 and 103 in all warrant applications and search warrants is provided. Note: The Search and Surveillance system permits multiple warrants to be created from a single application.
- Complete de-confliction - The Search and Surveillance system manages any de-confliction by sending email messages to owners of applications which share the same NIA target (e.g. two investigators who each have a search warrant for the same address). If you are advised of a conflict, you must act to resolve the potential conflict. Seek advice from your supervisor as necessary.
- Application history - The Search and Surveillance system searches the system for other search warrant applications made during the previous 3 months. The online system will automatically populate the details of previous applications on your target in the last 3 months. If application history exists, but the information is ‘closed’ the other applicant (document owner) will be notified of the new application and is responsible for determining whether or not to disclose historical information for inclusion.
- Complete NIA checks - Check your target in NIA for details of any other previous applications made under these enactments in the previous 3 months, which are not recorded in the Search and Surveillance system:
• Criminal Proceeds (Recovery) Act 2009
• Films, Videos and Publications Classifications Act 2007
• Mutual Assistance in Criminal Matters Act 1992. Note: If any previous applications within the 3 month period are relevant to your target, you must comment in the “other
- Record other applications - Record details of any other applications in the previous 3 months that you are aware of that are not recorded in the system (eg applications obtained by an agency other than Police). Record the details in the “other information” field of your application.
- Seek on-line approval - Submit your search warrant application online to a sergeant or above (normally your supervisor) for approval of the content of your application. (Your supervisor may seek legal advice if considered necessary). Review and revise the application as required.
- Print and sign the warrant application - Once approved by a supervisor, print out the search warrant and application and sign the application.
- Seek issue of warrant - Take your application to an issuing officer.
Include these documents with your application:
• a draft search warrant for the issuing officer’s signature
• a copy of the draft search warrant and notice to the occupier
• all documents tendered in support of the application (annexes).
Define “Informant” according to the S&S Act
Under section 3 of the Act, ‘informant’ has the same meaning as in section 6(1) of the Criminal Disclosure Act 2008, i.e. any person who provides verbal or written information, whether or not in recorded form, to a law enforcement officer.
‘Informant’ is not restricted to Covert Human Intelligence Sources (CHIS).
Can names and other details of informants (not registered CHIS) be withheld from search warrant applications?
Yes
The names and other identifying details of informants who are not registered as CHIS may be withheld but care must be exercised to ensure they are informants rather than witnesses, i.e. that they gave information with an expectation that their identity would be protected (refer R v Williams - see Law Notes - 30 May 2007 & R v Kissling).
NOTE:While the issuing officer may require you to supply further information concerning the grounds on which the warrant is sought, they must not, in any circumstances, require you to disclose the name, address, or any other identifying detail of an informant unless, and only to the extent that the information is necessary for them to assess:
• the credibility of the informant, and/or
• whether there is a proper basis for issuing the warrant.
(s98(2)(b))