4. Search and Surveillance Flashcards
What is Evidential material?
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.
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 is reasonable grounds to suspect?
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 does unlawfully at large mean?
- 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).
Describe lawfulness and reasonableness
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.
Describe what is meant by search hierarchy?
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.
Describe what is meant by a decision record
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.
Describe what is meant by Identification and
notice
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.
The force used against property must be….
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.
Search or seizure should be witnessed by whom?
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.
Seized property must be……
documented. All property removed or seized from a place, vehicle and other thing must be appropriately documented and accounted for.
How must i conduct a search for it to be both lawful and reasonable?
exercise a warrantless power, or
execute a warrant power, or
conduct the search, examination or inspection with the person’s consent.
What is the pitfall of a consent search?
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.
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.
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.
What would happen if i conduct a search or seize evidence without a warrant where I had the opportunity to so?
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.
You have 6 warrentless powers to search 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 drugs offences (s21, 22 & 23)
- for knives, offensive weapons and disabling substances (s27)
- after arrest or detention (s85 & 88).
Must know - What is the incidental power when searching places, vehicles and things? Section 110.
- 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.
Must Know - I have a power of entry to arrest a person who is unlawfully at large. What must I have before I enter?
Must have reasonable grounds to
suspect
that a person is unlawfully at large
and
believe that the person is in a place of vehicle
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?
enter the place or vehicle without
warrant to search for and arrest the person.
Must know - I have a power of entry to avoid the loss of an offender or evidential material.
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
Must Know - If i enter under this power what can I do?
you may…
• enter that place or vehicle without warrant,
and
• search for and arrest the person you suspect has committed the offence.
Must Know - If I do not make an arrest can I search for evidence?
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-
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)
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
Describe what “take action” means in relation to this search power?
means any action that is reasonable in the circumstances.
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
Must Know - If I exercise this power what can I do?
you may…enter and search the place without a warrant.
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.
Must Know - I have a power to search people in a public place for evidential material. What must I have before doing this? ( section 16)
If you have reasonable grounds to…
believe
that a person in a public place is in possession
of evidential material relating to an offence punishable by 14 years imprisonment or more
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
What if a vehicle is parked in other than a public place? Section 18(3)
Use the powers under section 15.
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
If i use this power, what can I do?
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.
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.
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
What is a disabling substance ?
‘Disabling substance’ means 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.
What is an offensive weapon?
‘Offensive weapon’ means any article made or altered to use
for causing bodily injury, or intended for such use by the
person who has it with them.
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.
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.
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
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.
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 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.
It is not a fishing expedition
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.
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.
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)
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.