4. Search and Surveillance Flashcards
1
Q
What is Evidential material?
A
Evidential material, 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.
2
Q
Must Know - What is reasonable grounds to believe?
A
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.
3
Q
Must Know- What is reasonable grounds to suspect?
A
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.
4
Q
What does unlawfully at large mean?
A
- has an arrest warrant (excluding a fines warrant)
- has escaped from prison or is absent without leave
- has escaped from lawful custody, e.g. police cells or police car
- is a special or restricted patient and has escaped or failed to return from leave
- is a care or special care recipient (with an intellectual disability) and has escaped or failed to return from leave
- is a young person who is the subject of a Youth Court “Supervision with residence” order and they are absconding from CYF custody. (This definition is adapted from the definition in section 3 of the Act).
5
Q
Describe lawfulness and reasonableness
A
All searches must be lawful and reasonable.
If the search is unlawful because it was conducted without a warrant, then it is very likely to be unreasonable as well.
However, take note of R v Jefferies [1994] 1 NZLR 290 which states: “Lawfulness is not inevitably determinative of reasonableness, or unlawfulness of unreasonableness”.
If particular evidence would still have been discovered if the unlawful search had not been conducted, then the evidence may still be deemed admissible.
6
Q
Must Know - Describe what is meant by search hierarchy?
A
You must observe the search hierarchy.
If you conduct a search, or seize evidence without a warrant where you had the opportunity to obtain a warrant, any subsequent court proceedings may deem the search unreasonable and any evidential material obtained as a result of the search or seizure may be deemed inadmissible.
You may also lose any evidence you discover about any other offence.
7
Q
Describe what is meant by a decision record
A
You must record your reasonable grounds to suspect and/or believe that were known at the time a warrantless power was used. You may need to rely on this record in court.
8
Q
Describe what is meant by Identification and notice
A
The owner / occupier/ or person in charge of a place, vehicle or thing being searched has the right to know who is searching, the person’s authority for searching and the reasons why they are conducting a search, unless there are good reasons for not providing this information.
9
Q
The force used against property must be….
A
Any force used to gain entry to any place, vehicle or other thing for the purpose of carrying out your search always be reasonable in the circumstances.
10
Q
Search or seizure should be witnessed by whom?
A
Any search of a place, vehicle or other thing, or any removal or seizure of property during the search, should be witnessed (if practicable) by another Police employee, enforcement officer from another agency or person assisting with the search.
11
Q
Seized property must be……
A
documented. All property removed or seized from a place, vehicle and other thing must be appropriately documented and accounted for.
12
Q
How must i conduct a search for it to be both lawful and reasonable?
A
exercise a warrantless power, or execute a warrant power, or conduct the search, examination or inspection with the person’s consent.
13
Q
What is the pitfall of a consent search?
A
When a statutory power exists to search, you should use that power rather than relying on a consensual search, as consent may be withdrawn by the person at any time.
14
Q
When a statutory power exists to search, you should use that power rather than relying on a consensual search, as consent may be withdrawn by the person at any time.
A
If evidence obtained as a result of a breach of the New Zealand Bill of Rights Act 1990 would have been obtained even if the breach had not occurred, the fact that it would inevitably have been discovered is a factor to be taken into account in determining whether it is admissible under the balancing test in section 30 of the Evidence Act 2006. (See R v Williams [2007] 3NLR 207). However it will not be admissible as a matter of course.
15
Q
What would happen if i conduct a search or seize evidence without a warrant where I had the opportunity to so?
A
If the search is unlawful because it was conducted without a warrant, then it is very likely to be unreasonable as well. However, take note of R v Jefferies [1994] 1 NZLR 290 which states: “Lawfulness is not inevitably determinative of reasonableness, or unlawfulness of unreasonableness”. If particular evidence would still have been discovered if the unlawful search had not been conducted, then the evidence may still be deemed admissible.
16
Q
Must Know- You have 6 warrentless powers to search people, What are they
A
- in custody and who is or is about to be locked up (s11)
- found in a public place for evidential material (s16)
- for arms (s18)
- in relation to drugs offences (s21, 22 & 23)
- for knives, offensive weapons and disabling substances (s27)
- after arrest or detention (s85 & 88).
17
Q
Must know - What is the incidental power when searching places, vehicles and things? Section 110.
A
- the associated power to seize anything that is the subject of the search or anything else that may lawfully be seized.
- a number of other associated general powers that can be used when exercising a particular search power.
18
Q
Must Know - I have a power of entry to arrest a person who is unlawfully at large. What must I have before I enter?
A
Must have reasonable grounds to suspect that a person is unlawfully at large and believe that the person is in a place of vehicle
19
Q
Must Know- If I have reasonable grounds to suspect that a person is unlawfully at large and believe that the person is in a place of vehicle what can I do?
A
you may…enter the place or vehicle without warrant to search for and arrest the person.
20
Q
Must know - I have a power of entry to avoid the loss of an offender or evidential material.
A
If you have reasonable grounds to…
• suspect that a person has committed an offence punishable by imprisonment and for which they may be arrested without warrant,
and
believe that the person is in a place or vehicle, and
• believe that if entry is not effected immediately, either or both of the following may occur: – the person will leave the place or vehicle to avoid arrest – evidential material relating to the offence for which the person is to be arrested will be destroyed, concealed, altered or damaged
21
Q
Must Know -Entry to avoid loss of offender or evidential material. If i enter under this power what can I do?
A
you may… • enter that place or vehicle without warrant, and • search for and arrest the person you suspect has committed the offence.
You may not search for evidential material unless an arrest is made and a search incidental to that arrest is undertaken under sections 83-88.
22
Q
Must Know - If I do not make an arrest can I search for evidence?
A
NO, You may not search for evidential material unless an arrest is made and a search incidental to that arrest is undertaken under sections 83-88-
23
Q
Must Know- I have a power of entry entry to prevent offence or respond to risk to life or safety. What do I need to have before I commence a search? ( Section 14)
A
If you have reasonable grounds to…
suspect in relation to a place or vehicle:
• an offence is being, or is about to be committed, that would be likely to cause injury to any person, or serious loss of or serious damage to any property,
or • there is risk to the life or safety of any person that requires an emergency response
24
Q
Describe what “take action” means in relation to this search power?
A
means any action that is reasonable in the circumstances.
25
Must Know- You have a search power to enter and search for evidential material for serious offences. What do I need to have before I do this? (Section 15)
If you have reasonable grounds to...
* **suspect** an offence punishable by 14 years imprisonment or more has been, is being, or is about to be committed, **and**
* **believe** that: – evidential material relating to the offence is in a place,
**and** – if entry is delayed in order to obtain a search warrant, the evidential material will be destroyed, concealed, altered or damaged you may…enter and search the place without a warrant.
26
What is Section 15 about providing?
**Section 15 is about urgency.**
Once that urgency has passed and the scene is secure (assuming it is not a simple case of seizing an exhibit with no further interest in the scene) a warrant should be obtained. The timing will depend on the circumstances. The ability to secure a search scene when an application for a warrant is pending strengthens the ‘warrant preference rule’. Unless there is some urgency to conduct the search or a concern that the securing of the scene may not be sufficient to preserve the evidential material, it may be appropriate to have to resort to section 117 rather than exercise a warrantless power.
27
Must Know - I have a power to search vehicle in a public place for evidential material. What must I have before doing this? ( section 17)
If you have reasonable grounds to..
**believe** that evidential material relating to an offence punishable by 14 years imprisonment or more is in or on a vehicle in a public place
28
Must Know - What if a vehicle is parked in other than a public place? Section 18(3)
Use the powers under section 15.
29
Tell me about Warrantless searches associated with Arms in places or vehicles.
If you have reasonable grounds to...
**suspect** that there are arms in any place or vehicle: • in respect of which a category 3 or 4 offence (means an indictable offence until Criminal Procedure Act 2011 comes into effect) or an offence against the Arms Act 1983 has been, is being, or is about to be committed,
**or** • that may be evidential material in relation to a category 3 or 4 offence or an offence against the Arms Act 1983
**you may…**
without a warrant:
* enter the place or vehicle
* search it
* seize and detain any arms or licence under the Arms Act 1983 found there.
30
Must Know- What must I do before conducting an arms act search?
**Unless impracticable** in the circumstances, obtain approval from a **sergeant or above** before exercising any of the warrantless powers outlined above in relation to arms.
31
Must know- Warrantless searches for offensive weapons. What must I have
If you have reasonable grounds to.
.. **suspect** that:
• a person travelling in a vehicle (or who has alighted from it) is committing an offence in a public place against section 202A(4)(a) of the Crimes Act 1961,
**and** • the vehicle contains a knife, offensive weapon, or disabling substance
32
Must Know - Warrantless search of vehicle for stolen property. What must I have?
If you have reasonable grounds to **believe** that any stolen property is in or on any vehicle, you may search the vehicle without a warrant. (s29)
Note: This section is intended to allow you to search a vehicle in a public place. If the vehicle is on private property, you should seek a search warrant or use an alternative warrantless power.
33
Must Know - Entry and search of vehicles after arrest (section 84). What must I have?
If you have arrested a person: And have reasonable grounds to... believe 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.
34
Quick reference guide to for use of powers and notifications
Obtain prior approval from a sergeant or above where applicable (e.g. arms search under section 18).
Provide a written notice to the person present during execution of the warrantless power (POL1275) and an inventory if items seized.
If no-one was present complete form POL1275, and leave in a prominent place.
Make a record of your decision to use a warrantless power and the reasons for it (i.e. reasonable grounds to suspect / reasonable grounds to believe) in your notebook.
Record the use of powers in the Search and Surveillance System for warrantless notifications.
Where applicable, complete a notification using the ‘Create Notification’feature on the Microsoft Outlook Bulletin Board to notify relevant groups about drugs, firearms, children, etc
35
Must Know- What must I consider before I undertake a consent search.?
If you are considering a consent search, observe the general principle relating to "**search hierarchy"** If you have a warrentless search power you should use it over a consent search.
36
Must Know- When may I conduct a consent search?
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 purpos**e 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. It is not a fishing expedition
37
Must know- What must advice must I give before searching?
determine that the search is for a purpose listed in section 92 advise the person from whom consent is sought:
of the **reason** for the proposed search that they may **consent or refuse** to consent to the search.
38
What is good practice when conducting a search?
**identify yourself** by name,
**give the reason** for your search
if **not** in Police **uniform** produce **evidence of your identity.**
39
Must Know- When might a consent search be unlawful ?
it is not for a purpose set out in **section 92,**
or •
**you fail to give the required advice** set out in section 93,
or
• you undertake a search **relying on consent given by a person who** **does not have authority to give that consent. (s94)**
40
A person under the age of 14 cannot consent to a search of a vehicle or place, what is the exception?
they are **found driving a vehicle** and there is **no passenger of or over the age of 14 years with authority to consent to the vehicle's search.**
41
Can a person under the age of 14 consent to a search of themselves or anything in their immediate possession or control
Yes
42
Exception to consent rules?
as a **condition of entry to any public or private place** (e.g. a condition of entry to a sporting fixture or concert), or in accordance with a power conferred by an enactment, or affect the rule of law relating to the implied licence to enter property.
43
Must Know - If a person consents to a search of themselves, you may extend the search to any item that....
* the person is wearing or carrying, (e.g. a bag), or
* is in the person's physical possession or immediate control **provided the person consents to these items being searched.** (Noted the provided)
44
Must Know- Every search Power, with or without warrant authorises you to do what?
Enter and search
Request assistance
Use reasonable force in respect of property only
Seize
Bring and use equipment
Bring and use dog
Copy documents
Access a computer system or other data storage device Copy intangible material
Take photographs, and recordings **if** you have reasonable grounds to **believe** they may be relevant to the purposes of the entry and search.
45
Must Know - Does this section allow me to use force on a person?
Note: This power does **not** authorise the application of force to any person (s115(3)). The use of force against a person for the purpose of search is covered by section 125.
46
Must Know- When taking photographs and recordings what must I have
Take photographs, sound and video recordings, and drawings of the place, vehicle, or other thing being searched and anything found there, **if** you have reasonable grounds to **believe** they may be relevant to the purposes of the entry and search.
47
Must Know- What are the limitations and considerations when exercising search power?
any conditions imposed by an issuing officer when issuing a search warrant
the privilege and confidentiality provisions in the Act.
reasonableness" under section 21 New Zealand Bill of Rights Act 1990.
48
Must know - There are special powers when the application for a search warrant is pending?
you may… at any time that is reasonable in the circumstances:
* enter and secure the place, vehicle, or other thing, and • secure any item(s) found there, and
* direct any person to assist with the entry and securing of the place, vehicle or other thing, or the securing of items in it if you
**…believe** that evidential material may be destroyed, concealed, altered, damaged, or removed before a decision is taken to grant or refuse the issue of a search warrant.
49
If I use the emergency powers there are three outcomes. The warrant is granted, the warrant is declined. What is the third? ( Section 117)
the expiry of six hours from when the power is first exercised
50
If you are exercising a search power in relation to 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 ( Section 118)
was there at the start of the search, or arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out.
The detention:
* may be for any **reasonable period** but no longer than the duration of the search
* starts when you direct the person to remain and ends when you tell them they are free to go.
As soon as you have detained a person under section 118, you must take **active steps** to determine whether there is a connection between them and the search.
51
What force may I use to detain a person for the search?
You may use reasonable force (e.g. handcuffing) to effect and continue the detention.
52
Must Know - If you are searching a place or vehicle, you may: search any person found, arrives, stops at or tries to get into that vehicle. ..i f you have reasonable grounds to …
if you have reasonable grounds to …
* believe that evidential material that is the object of the search is on that person, or
* suspect 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:
An exception to the above is when the search of the place or vehicle is for drugs. In that case, you can search any person at the scene as a matter of course under section 19 or 21.
53
Must Know - If I seize an item item posing a threat to **safety** what must I do at the conclusion of the search?
If you **seize** any item posing a threat to safety, then it must, **unless** possession constitutes an offence, be returned to the person:
54
Must Know - Powers of search when suspect pursued.
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 reasonable grounds to **believe** that relevant evidential material is still on the person or in or on the vehicle. Does this relate to any officer that catches the offender?
No not as a rule but, You can effect the apprehension or undertake the search **only if you are the officer in fresh pursuit**, unless you are acting as that officer's assistant under section 113 and **under their direct supervision and control.**
55
If I have a warrant to search a vehicle and have reasonable grounds to believe that the vehicle is on a property. Can I enter the property to search it? (s127)
Yes, you may enter any place where you have reasonable grounds to believe the vehicle is to locate and search it. (s127)
56
Must Know - If I exercise a search power, you must
* announce your intention to enter and search the place, vehicle, or other thing under a statutory power
* identify yourself (by name or unique identifier)
* if not in Police uniform produce evidence of your identity.
When must this be done?
**must before your initial entry**
57
Must Know - What else must I do **before my initial entry**?
You must also, either **before or on initial entry** provide the occupier of the place or the person in charge of the vehicle or other thing:
• a copy of the search warrant, (if it is not possible or practicable to have this in your possession, you may execute:
* a facsimile or a printout of an electronically generated copy of the warrant, or
* a copy which is endorsed to that effect) (s131(1)) or
* for a warrantless search or securing a scene under section 117 when a warrant is pending, (if requested by any person affected) state the name of the enactment under which you are searching or propose to search and the reason for the search, unless it is impracticable to do so in the circumstances. (s117)
58
When do I not have to announce my entry?
You do not have to announce your entry, identify yourself and give a copy of the warrant or notice of the reasons for a warrantless search if you have reasonable grounds to believe that:
* no person is lawfully present in, or on the place, vehicle, or other thing to be searched, or
* compliance with the requirements would:
* endanger the safety of any person, or
* prejudice the successful exercise of the entry and search power, or
* prejudice ongoing investigations. (s131(2))
59
If requested by any person affected by the search, you must??
* identify yourself by name or ID
* state the name of the enactment under which the search is taking place and the reason for the search, unless it is impracticable in the circumstances
* if not in Police uniform, produce evidence of your identity. (s116)
60
Is wearing SRBA sufficient to satisfy a requirement that you were in uniform?
**NO**. SRBA as the only uniform item by plain clothed employees conducting searches is not sufficient to meet the criteria for being "in uniform". They must produce identification when exercising search powers.
61
Using reasonable force to enter property. When exercising any search power you (and any assistant under your direction) may use any reasonable force in respect of any property to carry out the search and any lawful seizure. (s110(c) and s113(2)(b)) When deciding whether to force entry, you must consider the possibility that such entry may present a danger to.....
* the Police party
* the occupants of the premises, including children or other vulnerable people present
* members of the public.
62
In some situations, announcing the Police presence or purpose may be impracticable and a sudden, unannounced entry, by force if necessary, may be justified. Examples include:
* **saving a person** on the premises from death or injury
* situations where giving a warning might **endanger the police** involved
* **preventing** the destruction of evidence
* entering in the course of ‘**hot pursuit’** of an offender.
63
Before making an unannounced forced entry, assess the risk and consider:
* the tactical options available
* reasonable and practical alternatives to a forced entry
* the seriousness of the offence or circumstances
* any history of violence on the part of any person present on the premises
* danger to Police, the public or people present at the premises whether there are reasonable grounds for believing that evidence will be destroyed or disposed of.
64
Every search power authorises you to seize anything that is the subject of the search or that may lawfully be seized. (s110(d)) If you find evidence of an offence other than the one specified in the warrant or covered by your warrantless power, you cannot seize it unless:
you **obtain another warrant**, or you e**xercise plain view seizure under section 123.**
65
if you are exercising a search power to locate cocaine and find a package containing white powder but I am not sure what it is what can I Do?
y**ou may remove the package under section 112 for the purpose of examination or analysis to determine whether or not the powder is cocaine and can then lawfully be seized.**
The section 112 removal power could not be used, if for example, the purpose of your search is to find cannabis, but you find a television and are uncertain whether it is stolen or not. You would need to consider whether the circumstances are appropriate to exercise a plain view seizure under section 123 or to secure the place, vehicle or other thing being searched while an application for a search warrant is pending under section 117.
66
Seizure of items in plain view, If you are exercising a search power or are lawfully in a place as part of your duties, you may seize any item(s) you find in the course of carrying out the search or as a result of observations at that place, if you have reasonable grounds to believe you could have seized the item(s) under
any **search warrant obtained under the Search and Surveillance Act or another enactment**,
or **any other search power exercisable by you under the Search and Surveillance Act or another enactment.**
67
Must Know - For searches conducted when occupier or person in charge of vehicle or thing is **lawfully present** You must ......
You must give that person before or on initial entry:
copy of the warrant and attached privilege information contained in the 'Notice to occupier, or the person in charge of vehicle or other thing present during search', or if a warrantless search, a copy of the 'Notice to person present during warrantless search' (POL1275).
**Note is lawfully present, not a burglar**
68
Must Know - For searches conducted when occupier or person in charge of vehicle or thing is **not present** You Must ....
on completion of the search, leave in a prominent position at the place, or in or on the vehicle or other thing:
* a copy of the warrant and attached privilege information contained in the 'Notice to occupier, or the person in charge of vehicle or other thing not present during search', or
* if a warrantless search, a copy of the 'Notice to person not present during warrantless search' (POL1275). (s131(4))
at the time the thing is seized, or as soon as practicable after the
seizure and no later than 7 days after that seizure, provide:
* to the occupier of the place, or the person in charge of the vehicle or other thing, and
* to every other person you have reason to believe is the owner of the thing seized
the following:
* an inventory of items seized (POL 268) and the accompanying 'Notice to owners and others in relation to things seized,
* **and**
* a copy of the authority (i.e. a copy of the warrant, POL1275) if the owner is different from the occupier or person in charge and has not previously received the relevant form
(s133)
69
How old must you be to be treated as an occupier?
Over 14 years
70
Duty to give notice to owners of things that are seized. In addition to providing the occupier of a place or the person in charge of the vehicle or other thing notice of what is seized, section 133(1) requires you to provide to.......
**any person you have reason to believe is the owner of the thing seized:**
• **written notice specifying what was seized a**nd information about the person's right to have access to the thing or claim privilege in respect of the thing seized,
**and**
• **a copy of the authority for the search (i.e. the search warrant or for warrantless searches, the name of the enactment under which the search took place.**
71
What must I be careful of when giving a list of property on the 268?
the owner(s) of stolen property which is recovered, may pose a threat to the safety of the person from whom it was seized, e.g. the owner of a stolen item may be a gang member wanting retribution.
72
Must Know - If I am stopping a vehicle to search it or effect an arrest can I use 114 of the Land Transport Act 1998.
**NO.** Powers to stop and move vehicles or to close roads under the Land Transport Act 1998 or under other legislation for emergency purposes (e.g. in a civil defence emergency) **MUST NOT** be used for the purpose of search.
73
Must know- under a power to search without a warrant or with a warrant.... Section 121
if you are satisfied that… grounds exist to search the vehicle the warrant has been issued and is in force.
74
What if I find the vehicle but it is unsafe to search it properly where it is?
You may move a vehicle to **another place** if you find or stop the vehicle and you have..
. • **lawful authority to search** the vehicle, but it is **impracticable** to do so at that place, or
• reasonable grounds to believe it is **necessary** to move the vehicle for **safekeeping.**
75
What must I do if I stop a vehicle to search ?( 129)
Immediately after stopping the vehicle, you must:
**identify yourself to the driver**
state the name of the **enactment under which the search is taking place** and the reason for the search, unless it is impracticable in the circumstances
**if not in Police uniform, produce evidence of your identity.**
76
Stopping vehicles without warrant to effect arrest, Tell me about it
You may stop a vehicle without warrant to arrest a person if you have reasonable grounds: •
to suspect that a person: – is unlawfully at large,
or – has committed an offence punishable by imprisonment, **and**
• to believe the person is in or on the vehicle. Except a fines warrant
77
What powers do I have after stopping a car under section 9 ( section 10)
**• require** any person in or on the vehicle who you have reasonable grounds to suspect is unlawfully at large or has committed an offence punishable by imprisonment to supply **their name, address, other contact details and date of birth**
* **search** the vehicle to **locate the person, if** you have reasonable grounds to believe they are in or on 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** from the vehicle before they can be arrested. **Before searching, you must tell the driver the object of the proposed search if they are not the person suspected of being unlawfully at large or of committing an offence.**
78
Must know - What does police policy say you must do when stopping a vehicle?
**MUST**
* be wearing a Police uniform or distinctive cap, hat or helmet with a badge of authority affixed to that cap, hat or helmet, **or**
* be following immediately behind the vehicle, and displaying flashing blue lights or flashing blue and red lights, **and/or** sounding a siren.
79
Must Know- Establishing a road block for purpose of arrest ( Section 30) Who must authorise this?
Sgt/ A Sgt or above. refered to as a **Senior Constable**
80
What grounds must you have for a road block ?
* believe that in or on a vehicle there is a person who you have reasonable grounds to suspect: – has committed an offence punishable by a term of imprisonment or – is unlawfully at large, and
* suspect the vehicle will travel past the place where it is proposed the road block be established.
You must be satisfied that, as far as is reasonably practicable, the safety of all road users will be ensured in the area where the road block will be established.
81
How long can a roadblock be in place for?
24 hours max
82
Who and how long can it be extended by?
A district Court Judge for a further period not exceeding 24 hours.
83
What can we do at a road block? (Section 32)
Establish road block Stop vehicles Require particulars Search vehicle for person ( Not fines warrant)
84
Must Know -(s32)road block? You may also require that a vehicle **remain stopped** for .....
for as long as is **reasonably necessary** to enable you to exercise any of the powers above in respect of the vehicle or its occupants. May arrest if fail to do so ( Section 128)
85
In the event of authorising a road block what must I consider?
Community impact assessment in writing before establishing, should be carried out ongoing and only mental assessment if an emergency.
86
Must Know- What are the three types of personal searches?
* rub-down searches
* strip searches
* internal searches.
87
General principles applying to all searches
The search must be lawful, i.e. you must be authorised by the Search and Surveillance Act 2012 or another enactment to conduct a search, or conduct it with the person's informed consent.
* People being searched must be treated with such dignity, privacy, respect and sensitivity that the individual situation and the safety of employees dealing with them will permit.
* Any force or restraint used on a person being searched must always be reasonable in the circumstances.
* Generally searches should be carried out by constables, authorised officers or searchers of the same sex as the person being searched. Some exceptions apply when employees of the same sex as the person being searched are not available.
* Where practicable, any search and/or removal of property from the person being searched must be witnessed by another Police employee.
* All property removed or seized from a person searched must be appropriately documented and accounted for.
88
When can people be searched?
You must search a person lawfully by always: • exercising a warrantless power, or • executing a warrant power, or • conducting a search with the person's consent. When a statutory power exists to search a person, you should use that power rather than relying on a consensual search, as consent may be withdrawn by the person at any time.
89
Must Know - There are six search powers for people, what are they?
* in custody and who is or is about to be locked up (s11)
* found in a public place for evidential material (s16)
* for arms (s18)
* in relation to drug offences (s21, 22 & 23)
* for offensive weapons (s27)
* after arrest or detention (s85 & 88).
90
Warrantless searches of people in public places for evidential material ( Section 16) Tell me about this
You may search a person in a public place without a warrant if you have reasonable grounds to **believe** that they are in possession of evidential material relating to an offence punishable by **14 years imprisonment or more.** Note the believe
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Warrantless searches of people in possession of arms
If you have reasonable grounds to...
**suspect** a person is carrying arms, or is in possession of them, or has them under 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 arms, **or**
– may kill or cause bodily injury to any person, **or**
• that, under the Domestic Violence Act 1995: – a protection order or Police safety order is in force against that person, **or**
– there are grounds to apply for a protection order against the
**you may.**.. do **any or all** of the following without a warrant:
* search the person
* search any thing in their possession or under their control (including a vehicle)
* enter a place or vehicle to carry out one of the above • seize and detain: – any arms found – any licence under the Arms Act 1983 that is found.
Note**: Arms are "in a person's possession or under their control" if they have access to them. They do not need to be in the person's immediate possession.**
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Must Know - Warrantless searches of people for offensive weapons( Section 27) What is the threshold to search?
you **suspect** them of committing an offence in a public place against section **202A(4)(a)** of the Crimes Act 1961.
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Which power should be used for searching arrested or detained persons
These are a rubdown search, under sections 85 - 87,
and a warrantless search under section 88.
A search may be carried out under one of these provisions before the search conducted under section 11 when people are locked up
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Must Know - Searching people who are, or are to be, locked up in Police custody (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 **a**nd is, or is to be, locked up
( Note and is, or is to be, locked up)up (pending a decision on bail or for any other reason).
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Must Know - When might I use this power under section 11.
This power may be exercised ***before*** the person is locked up.
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Must Know - What does locked up mean?
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).
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Must Know - After a person has been locked up they can **only** be searched if....
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.
If a prisoner undergoes a section 11 custodial search and is locked up, a further section 11 search can only be conducted if the exceptions in section 11(3) apply.
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Rub-down searches of arrested or detained people( Section 85) What are the two occasions I can conduct a rubdown search of a detained person?
• harm any person (including themselves), or • facilitate the person's escape.
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Must Know- If you have arrested, or detained a person under a statutory power of detention you may search the person if you have reasonable grounds to **believe** that there is any thing on or carried by the person that:.....(s88)
• may be used to harm any person (including themselves),
or
• may be used to facilitate the person's escape,
or
• is evidential material relating to the offence for which the arrest was made or the person detained. (s88)
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Examples where samples may be seized from the external body of an arrested or detained person as evidential material include:
* a swab to remove blood from the victim of an assault on the arrested person’s neck
* fingernail scrapings from the fingers of an arrested rape offender that may link the offender to the victim by DNA
* a swab of an arrested person’s skin for gunshot residue
* penile swabs (Refer to the online Police Manual chapter for more detail).
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Must Know - Who **must approve** a search under section 88
Searches must be lawful, reasonable and approved by **sgt or above**
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Must Know- Rules and obligations when searching people. ( Section 125) When exercising a power to search a person you **must:**
**• identify yourself**
**• state the name of the Act** under which the search is taking place and the reasons for it unless it is impracticable to do so in the circumstances
• **produce evidence** of your identity if you are not in Police uniform
**• promptly provide the person with a copy of an inventory of any items seized during the search.**
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Must Know - Other general powers associated with the power to search people When exercising a power to search a person, you **may**:
you **may**: **detain** use r**easonable force** ( You should arrest for obstruction first and then use force to complete the search.)
use any equipment or aids,e.g. torch
ask for assistance from ( parent/med **if** in interests of person being searched
ask for assistance from another officer search
**seize -**
anything carried by the person or in their immediate possession or
control **i****f**: it is the subject of your search, ormay otherwise lawfully be seized.
copy access using reasonable measures copy intangible material take photographs
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What is a rub-down search?
* run or pat your hand over the body of the person being searched, whether outside or inside their clothing (other than the underclothing)
* insert your hand inside any pocket or pouch in their clothing (other than the underclothing)
* for the purpose of permitting a visual inspection, require the person being searched to: – open their mouth – display the palms of their hands or the soles of their feet – lift or rub their hair.
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Things that can be done to facilitate a rub-down search
Things that can be done to facilitate a rub-down search To facilitate a rub-down search you may require the person being searched to:
* remove, raise, lower, or open any outer clothing (including, without limitation, any coat, jacket, jumper, or cardigan) being worn by them, except when they have no other clothing, or only underclothing, under that outer clothing, and
* remove any head covering, gloves, or footwear (including socks or stockings) being worn. You may also search: • any item carried by or in their possession, and
* any outer clothing removed, raised, lowered, or opened for the purposes of the search, and
* any head covering, gloves, or footwear (including socks or stockings) removed for the purposes of the search.
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Rub-down search of all prisoners unless unjustified in circumstances
All prisoners must undergo a rub-down search as soon as they arrive at the custody area or station unless:
* it would be unjustifiable to search the person because, for example: – it is a minor charge – all evidence is located
* the prisoner is: – not placed into a cell or left unsupervised and is being immediately bailed, or – not at risk of harming any person or escaping before they are bailed, or
* there is justification in the circumstances to conduct a strip search instead.
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Case Law - Inquiring as to a reasonable excuse for possessing an offensive weapon before conducting a search. this involved camping equipment
To establish whether the person does not have lawful authority or a reasonable excuse, Kearns holds that inquiries as to the purpose of possessing the offensive weapon must be made prior to the search. A craft knife related to work would be acceptable where as a an excuse that a machete was from camping without accompanying camping gear would not. But you must ask before you search.
