4. Search and Surveillance Flashcards
What is evidential material?
Evidential material means evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence in the circumstances
What is reasonable grounds to believe?
Having a sound basis for believing that a situation or circumstance actually exists e.g. reasonable grounds to believe that the search will locate evidential material relating to that offence
What does reasonable grounds suspect mean?
Having a sound basis for suspecting that a situation or circumstance is likely to exist
All searches must be what?
Lawful and reasonable
What does unlawfully at large mean?
In relation to a person means a person who has a warrant to arrest, Unlawfully at large, A prison breaker, an escapee from lawful custody, a Special patient, a care recipient and a young person under the various acts.
NOTE:it does not include someone who is on home detention.
What is the search hierarchy?
Always obtain a search warrant unless not practicable, Consider using a warrantless search power - must make decision logs
What are your obligations when conducting a search In relation to identification and notice?
- Identify yourself
- authority for searching
- reasons why a search has been conducted
What must force be when gaining entry to any Place vehicle or other thing?
Reasonable in the circumstances And in a reasonable manner
What must you consider when undertaking a risk assessment when planning a search for taking action?
- Mitigate risks to protect the safety of the public and employees carrying out the search
Searches can be hazardous. prior to a search what should you include in your briefing?
Safety precautions and note in decision log
What should search and seizure be?
Witnessed by another member and documented/accounted for
What does implied license mean?
Police can Enter Private property to make an enquiry, but the implied license can be revoked by the occupier at any time
Consent to searches extends to what items?
Any item that the person is wearing or carrying or is in the person’s physical possession or immediate control provided the person consents to these items being searched
What are the disadvantages of using consent searches?
- The person being searched can withdraw their consent at any time
- If a search power is involved after withdrawal of consent, the initial request may be seen to be token and meaningless
- The existence of validity of any consent given maybe challenged in court
Statutory notification on the exercise of warrantless powers - you must notify commissioner of what?
- Summary of the circumstances surrounding the exercise of the power and the reason
- With any evidential material was seized or obtained
- Whether any criminal proceedings have been brought or been considered as a consequence of the seizure evidential material
When are you not required to notify the commissioner?
- A search by consent
- Warrantless entry to prevent offence or respond to risk of life or safety - s14
What is s7 S & S Act 2012 - Entry to arrest unlawfully at large
- RGT suspect that a person is unlawfully large and believe that person is in a place or vehicle
- Enter Place or vehicle without warrant to search for an arrest the person
What is S8 - Entry to avoid loss of offender or evidential material?
RGT suspect - That a person has committed an offence punishable by imprisonment and they can be arrested without warrant
- and believe that person is in a place or vehicle and believe that if entry the person will leave the place/vehicle to avoid arrest and CADD occur
- Enter that place or vehicle without warrant and search for an arrest the person you suspect has committed their offence
Can you search for evidential material under s8?
Only if an arrest has been made and a search is incidental to that arrest
What is s14 entry to prevent offence or respond to risk to life or safety?
- RGTS in relation to a place or vehicle and offence is being/about to be committed and would likely cause injury to any person or serious loss of or serious damage to any property or
- There is risk to life or safety of any person that requires an emergency response
- Enter place or vehicle without warrant and take any action you have RGB to prevent the offending from being committed or continuing or advert the emergency
What is s15 entry and search of places to find/avoid loss of evidential material?
RGT suspect an offence punishable by 14 years imprisonment or more has been is being is about to be committed and
- Believe that evidential material relating to the offence is in the place
- if entry is delayed in order to obtain a search warrant CADD will occur
- search the place without a warrant
Take any action s14 means?
Means any action that is reasonable in the circumstances
- no power of search or detention
S15 is about urgency. Once the urgency has passed, what should you consider?
Obtaining a search warrant. Can also consider section 117 (secure scene)
What is s16 -searching people in public place for evidential material?
RGTB A person in a public place is in possession of evidential material relating to an offence punishable by 14 years imprisonment or more
- Search that person without a warrant
What is s17 - entry and search a vehicle in public places for evidential material?
RGTB That evidential material relating to an offence punishable by 14 years imprisonment or more is in or on a vehicle in a pubic place
- enter and search that vehicle without a warrant
What is s18(1) and (2) -Firearms?
RGTS a person is carrying firearms or is in possession of them or has them in their control and
- The person is in breach of the Arms Act 1983 or
- The person by reason of their physical or mental condition
- Is incapable of having proper control of the firearms
- May kill or cause bodily injury to any person or
That under the family violence act 2018
- A protection order or police safety order is enforce against that person or there are grounds to apply for a protection order against them
May
- Search the person
- Search anything in their possession or under their control, including a vehicle
- Enter a place or vehicle to carry out the search
- And detain any firearms found any license found under the Arms Act 1983
Note: they do not need to be in the persons immediate possession
What is s18(3) Arms in places or vehicles? Seek Sgt approval first.
RGT suspect that there are firearms in any place or vehicle
- In respect of category three or four offence or an offence against Arms Act 1983 has been, is being or is about to be committed or
- There may be evidential material in relation to a category three or four offence or an offence against Arms Act 1983.
- Enter WW place or vehicle
- Search it
- Seize and detain any arms or licence under the Arms Act 1983 found there.
When can you search a person for evidential material s119?
Answer:
You can search any person found at, arrives at or stops/enters the place or vehicle if you have reasonable grounds to believe that evidential material is on that person, or (s119(1))
suspect that the person is in possession of a dangerous item that poses a threat to safety and you believe immediate action is needed. (s119(2)(a) - (b))
What is the period you can hold under s117?
A
Answer:
Secure scene while search warrant is pending up to (6 hrs) from when power is first exercised.
- unless a warrant is available for execution at that place, vehicle or other thing.
- the application for the search warrant is refused
What are some examples of when samples from a person’s body may be seized as evidential material pursuant to S88 search?
- swabs to remove blood on the arrested person
- fingernail scrapings
- penile swab (to obtain victim’s DNA from offender relating to a sexual violation)
- swab for gunshot residue off hands of offender.
For the purpose of this section, the search must be lawful, reasonable
What does s88 allow you to do - Searching for evidential material
If you have arrested a person or detained them under a statutory power, and have reasonable grounds to believe that there is anything on or carried by the person that:
may be used to harm any person
may be used to facilitate the person’s escape
is evidential material relating to the offence for which the person is arrested or the person detained.
You may search that person
What is s28 - Searching vehicles for offensive weapons
-RGT suspect a person in a vehicle is committing an offence in a public place against S202A CA 1961 and
- The vehicle contains a knife, offensive weapon or disabling substance
May
- Without a warrant search the vehicle
What does disabling substance mean?
Any anaesthetising or other substance produced to use for disabling a person or intended for such use by the person who has it with them