4. Search and Surveillance Flashcards
What is evidential material?
Means evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence.
What is the difference between RGB and RGS?
RGB - believing that a situation or circumstance actually exists
RGS - suspecting that a situation or circumstance is likely to exist
What does unlawfully at large mean?
person as an arrest warrant
prison breaker or escapee from lawful custody
a special or restricted patient who has escaped or failed to return - mental health
a care recipient or special care recipient who has escaped or failed to return
a young person who is subject to an order made under S311 of OT act and who is absconding from custody
What is the search hierarchy?
If you conduct a search, or seize evidence without a warrant where you had the opportunity to obtain one, any subsequent court proceedings may deem the search unreasonable and any evidential material obtained as a result of the search and seizure may be deemed inadmissable. You may also lose any evidence you discover about any other offence.
S7 - Entry to arrest person unlawfully at large
RGS that a person is at large, and
RGB the person is in a place or vehicle
You may enter the place or vehicle without warrant to arrest the person
S8 - Entry to avoid loss of offender or evidential material
RGS that a person has committed an offence punishable by imprisonment and for which they may be arrested without warrant, and
RGB that the person is in a place or vehicle, and
RGB that if entry is not effected immediately, either the person will leave to avoid arrest and or evidential material will be CADD,
you may enter that place/vehicle without warrant and search for and arrest the person you suspect has committed the offence.
NOTE: can only enter and search for and arrest a person. Can’t search for evidential material unless an arrest is made and you search incidental to the arrest (ss83-88)
S14 - Entry to prevent offence or respond to risk of life or safety
RGS an offence is being, or is about to be committed, that would likely cause injury to any person, or serious loss of or serious damage to any property, or
there is a risk to the life or safety of any person that requires an emergency response
You may enter the place or vehicle without warrant, and
take any action you have RGB is necessary to prevent the offending from being committed or continuing or avert the emergency.
NOTE: only provides power of entry, not search
S15 - Entry and search of places to find and avoid loss of evidential material
RGS an offence punishable by 14 years imprisonment or more has been, is being, or is about to be committed, and
RGB that evidential material relating to the offence is in a place and if entry is delayed in order to obtain a SW the evidential material will be CADD,
You may enter and search the place without warrant.
NOTE: is about urgency. if it has passed and scene is secure a warrant should be obtained.
May be appropriate to use 117.
S16 - searching people in public place for evidential material
RGB that a person in a public place is in possession of evidential material relating to an offence punishable by 14 years imprisonment or more,
You may search a person without warrant.
S17 - Entry and search of vehicles in a public place for evidential material
RGB that evidential material relating to an offence punishable by 14 years imprisonment or more is in or on a vehicle in a public place
you may enter and search that vehicle without warrant
NOTE: if vehicle is parked in a place other than a public place, use S15 to enter and search that vehicle.
S18 - Arms in places or vehicles
RGS that there are arms in any place or vehicle in respect to which a category 3/4 offence or an offence against the arms act has been, is or about to be committed, or
that there is evidential material in relation to a category 3/4 offence or offence against the arms act
you may without warrant enter the place or vehicle, search it, seize and detain any arms or licence found there
S28 - searching vehicles for offensive weapons
RGS a person travelling in a vehicle or has run from it is committing an offence in public place against s202A of the crimes act, and
the vehicle contains a knife, offensive weapon, or disabling substance,
you may without warrant search the vehicle.
S29 - Searching vehicles for stolen property
RGB any stolen property is in or on any vehicle, you may search the vehicle without warrant.
NOTE: vehicle must be in public place
S83 - Entry and search of places after arrest
RGB that evidential material relating to the offence is at a place, and
If entry is delayed to obtain a warrant, evidential material will be CADD
You may enter the place to search for evidential material relating to the offence (whether or not the person was arrested there) without warrant
s84 - entry and search of a vehicle after arrest
RGB that evidential material relating to the offence for which they were arrested is in a vehicle
you may enter and search that vehicle without warrant.
NOTE: should occur ASAP after arrest
S92 - purposes for which a consent search may be undertaken
to prevent the commission of an offence
to protect life or property, or to prevent injury or harm
to investigate whether an offence has been committed
any purpose in respect of which you could exercise a power of search conferred by an enactment, if you held a particular belief or suspicion specified in the enactment
NOTE: must advise the person of the reason for search and that they can refuse to consent to the search
What are the circumstances where search by consent is unlawful
is is not for a purpose set out in s92
fail to give the required advice set out in s93
you undertake a search relying on consent given by a person who does not have authority to give that consent
s95 - restrictions on persons under 14 years to consent
a person under 14 cannot consent to the search of a place, vehicle or thing.
Exception: is when they are found driving a vehicle and there is no passenger of or over the age of 14 with authority to consent to the vehicle’s search.
NOTE: it does not prevent a person under 14 from consenting to a search of themselves or anything in their immediate control
What is implied licence?
Members of the public, including Police, can enter private property (go to the door of a private premises) so far as is necessary to make an inquiry of an occupier, for any reasonable purpose or in the course of a lawful enquiry
What actions are authorised by search powers (s110)?
Enter and search,
request assistance
use reasonable force in respect to property
bring and use equipment including using electricity from the place, vehicle or thing
bring and use a trained law enforcement dog
copy documents that may be lawfully seized
access a computer system or other data storage device
copy intangible material
take photographs, sound and video recordings, and drawings
S117 - power to secure
If a search warrant application is about to be made in relation to a place, vehicle or thing, or has been made but not yet granted or refused by an issuing officer:
You may at any time that is reasonable in the circumstances enter and secure the place, vehicle, or thing, and
Secure any items found there, and
Direct any person to assist with the entering and securing of items in it
If you believe that evidential material may be CADD or removed before a decision is taken to grant/refuse the issue of a SW
NOTE: Only have 6 hours to get a warrant
S118 - Powers of detention incidental to searches of places and vehicles
If exercising a search power on a place or vehicle, you may detain any person to determine whether there is a connection between them and the object of the search if the person was there at the start of the search or arrives at the place or stops at, enters, or tries to enter, the vehicle while the search is being carried out.
You may use reasonable force to effect and continue the detention.
As soon as you have detained someone you must take active steps to determine whether there is a connection between them and the search.
Once they have been excluded and cleared of suspicision they should be informed they are free to go.
S119 - Powers to search persons at place or vehicle
If you are searching a place or vehicle, you may search any person found at the place or in vehicle, or who arrives at the place, or who stops at, or enters, or tried so enter into or onto a vehicle,
If you have RGB that evidential material that is object of the search is on that person, or
RGS the person is in possession of a dangerous item that poses a threat to safety and you believe that immediate action is needed to address that threat.
EXCEPTION: if search is for drugs, you can search the person at the scene under S19 or 21.
S120 - Powers of search when suspect pursued
If you intend to search a person or vehicle, but that person or vehicle leaves before you are able to start or complete the search,
You may apprehend the person or enter any place to apprehend the person or vehicle,
IF YOU HAVE been freshly pursuing the person from the intended search location until apprehended, and
You have RGB that relevant evidential material is still on the person or in the vehicle
NOTE: only the officer fresh in pursuit can effect the apprehension or undertake the search, unless you are acting as that officers assistant under S113
S127 - Search warrants to enter and search vehicles
If a search warrant authorises the search and entry of a vehicle, you may enter any place where you have RGB the vehicle is to locate and search it.
S131 - identification and announcement requirements on entry
before initial entry announce your intention to enter and search the place, vehicle or other thing, identify yourself.
Provide occupier of the place, or person in charge of the vehicle or other thing a copy of the search warrant
or for warrantless search or securing the scene state the name of act
What can be searched?
you can only search for items specified in a search warrant or which are permitted under a warrantless power, and only in places that could contiain them.
A vehicle can be searched if it is on the premises, but a vehicle parked on the street must be specified in the warrant.
What can be seized?
you can seize anything that is subject of the search or that may lawfully be seized.
If you find evidence of an offence other that the one specified in teh warrant or covered by your warrantless power, you cannot seize it unless:
you obtain another warrant or
you exercise plain view seizure S123
Items of an uncertain status can be removed under S112 for analysis
S121 - stopping vehicles with or without warrant to search
you may stop a vehicle to conduct a search under a power to search
without a warrant if you are satisfied that grounds exist to search the vehicle
with a warrant if you are satisfied that the warrant has been issued and is in force
S129 - duty to provide information to the vehicles driver
immediately after stopping the vehicle you must
identify yourself to the driver
state name of act and the reason for the search
s9 - stopping vehicles without warrant to effect arrest
you may stop a vehicle without warrant to arrest a person if you have
RGS that a person is unlawfully at large or has committed an offence
RGB the person is in the vehicle
s10 - Powers and duties after vehicle stopped
if you stop a vehicle under section 9 you may:
require any person in the vehicle who you have RGS is unlawfully at large or committed an offence to supply their details
Search the vehicle to locate the person if you have RGB they are in the the vehicle
search the vehicle to locate property that is evidential material in relation to any offence in respect of which the vehicle was stopped, if the person has been arrested or is seen fleeing.
S30 - obtaining authorisation for a warrantless road block
If you are a sergeant (or acting sergeant) or above you may authorise a road block if you have
RGB that in or on vehicle there is a person you have RGS has committed and offence or is unlawfully at large, and
RGS the vehicle will travel past the place where it is proposed the road block to be established.
NOTE: only valid for 24 hours, may be renewed by judge. if authorise road block keep written record of the location and period for and grounds on which authorisation was granted/renewed.
S16 - Warrantless searches of people in public places for evidential material
You may search a person in a public place without warrant if you have RGB that they are in possession of evidential material relating to an offence punishable by 14 years imprisonment or more
S27 - warrantless searches of people for offensive weapons
RGS the person is committing an offence against S202A(4)(a) Crimes Act
S11 - searching people who are, or are to be, locked up in Police Custody
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 decision on bail or for any other reason).
You may take any money or property found in this search
S85 - rub down searches of arrested/detained people
you may carry out a rub down search of a person who is arrested or detained under any enactment, to ensure the person is not carrying anything that may be used to harm any person or facilitate an escape
s88 - warrantless searches for evidential material
if you have arrested or detained a person you may search the person if you have RGB that there is anything on or carried by the person that
may be used to harm any person
may be used to facilitate an escape
is evidential material relating to the offence for which the arrest was made
What are examples of when samples from a persons external body may be seized
a swab to remove blood from the victim of an assault on the arrested persons neck
fingernail scrapings from the fingers of an arrested rape offender that may link offender to the victim by DNA
a swab of an arrested persons skin for gunshot residue
penile swabs
NOTE: must be lawful, reasonable, and approved by a sergeant
Can a rub down search include a visual examination
Yes - can include visual examination of mouth, nose and ears, but must not include the insertion of any instrument.
