4.1 Search & Surveillance Flashcards
Define Evidential Material (2)
- Evidence of an offence
- Anything relevant to the investigation
Describe “Reasonable Grounds to Believe” (RGTB)
“A sound basis for believing the situation actually exists”
Describe “Reasonable Grounds to Suspect” (RGTS)
“Likely to exist” A sound basis for suspecting
What is a tracking device?
A device used to ascertain the location of a thing or whether the things has been opened (dealt with).
Does not include a veh or other means of transport..
What is an interception device?
Any electrical, electromagnetic, mechanical device used to intercept or record a private communication.
Does not include hearing aid to correct subnormal hearing.
What is a visual surveillance device?
Device used or capable of being used to observe or observe and record a private activity.
Does not include specs, contact lenses used to correct subnormal sight.
What is the purpose of the S&S Act 2012? (s5)
To facilitate the monitoring of compliance by:
- Modernising the law of search
- Rules recognising importance of rights
- Investigative Tools (effective and adequate)
Which power should be used for searching a detained person?
Rubdown search s85-87 (rub down search, arrested or detained to take items to prevent harm to anyone or assist escape)
A warrantless search s88 (arrested/detained, w/out W, RGTB possession of items to harm anyone, facilitate escape or evidence of offence detained for)
Who should conduct a s11 search when a person is locked up?
Watchouse/custodial staff
What is the primary purpose of a s11 search? (2)
- Protect detained persons property
- Remove items of self harm
When should a s11 search be conducted?
Prior to person being placed in a cell.
A. What does “Locked up” mean?
B. What does it also mean relating to vehs?
A. A person taken into lawful custody and placed behind a locked door.
B. a veh being used for police purposes BUT not being placed in a police veh for immediate purposes of transport
When can a person be searched under s11 after they have been locked up?
If not previously searched.
Since being searched, in close proximity with someone
a) who has not been searched
b) another person eligible to be searched or
c) RGTB person in possession of weapon (to escape or self harm)
Why should you avoid a s11 search subsequent to arrest
Because you can only use this section once prior to being locked up
When is a search warrant required for search?
In all cases unless impractical
What does a warrant authorise
Enter and search any place, veh or other thing, for evidential material in respect of an offence punishable by imprisonment
Who can apply for a SW
Constable
What are the grounds for applying?
- RGTS offence carrying imprisonment
- RGTB a search will recover evidence
Who can approve you to apply?
Sgt or above (where practicable)
How do you apply for a search warrant? (2)
- in writing via online S&S system
- appearance in person before issuing officer
Can you make an oral application?
Yes, if impractical to do so in writing
Under what circumstances can you make an oral application? (3)
- If written application causes delay compromising effectiveness
- If issuing officer is satisfied application can be determined orally
- All information is supplied
What are your requirements post making an oral application?
Enter application and outcome online via S&S system
When can an application be made without an appearance before an issuing officer?
If the warrant can be issued on the basis of the written application alone (no clarification or Q’s required)
What is the first step in applying for a SW?
Seek approval from Sgt level or above
State four steps in the process of search warrant application prior to completing the application itself.
- seek approval
- set up NIA/case
- assess risks (PARA card)
- assess community impact
Explain “deconfliction”
Process in S&S online system that emails other investigators with the same target address in current applications.
What must you do if you receive a deconfliction email?
Act to resolve
Under which enactments are warrant applications not recorded in S&S systems?
- Asset Recovery (Criminal Proceeding Act 09)
- Films, video classification 07
- Mutual assistance in Criminal matters 92
Before you print and sign your application what must you do?
Seek online approval from Sgt or higher
What is the definition of “informant”?
Person who provides verbal or written info to law enforcement officer
What is the difference between informant and witness?
Informant gives info with expectation their details will be protected
On what grounds may the issuing officer require disclosure of informant details?
- To assess credibility of informant
- Whether there is proper basis for issuing warrant
What must the issuing officer not ask for?
Name and address of informant
s117. You are about to conduct a search warrant but the application is not yet approved. You become aware target is about to remove the evidence you seek. What are your powers?
- enter and secure place, veh, thing
- secure any items
- direct any person to assist
Must believe evidential material may be destroyed, concealed, altered damaged or removed before issuing officers decision to grant or refuse
What are the conditions of exercising the pre warrant entry power?
Six hour expiry or warrant becomes available or application is declined
What is the scope/limitation of the S&S 2012?
It is limited to regulating activities undertaken by use of devices.
What legal considerations exist pursuant to the S&S act regarding surveillance without a device? (3)
- Surveillance w/out a device cannot be authorised by a warrant.
- Surveillance will be unlawful if it involves a trespass
- Surveillance will be lawful and can be undertaken if:
a) it is reasonable s21 BoRA
b) does not involve a trespass
Nothing to preclude getting search warrant in order to trespass on a place for surveillance ‘without a device’
What devices are regulated under the Act?
Tracking
Interception
Visual surveillance
Can you apply for a warrant to use more than one type of device?
Yes, application is the same and brings together all types of device.
What are the focus points of the Act?
Use of technology in investigating offences
To monitor compliance
Consistent with Human Rights values
Does flying over a place, including a drone/model aircraft constitute a trespass
No
What are the consequences of conducting surveillance with a device and without warrant where you had the opportunity to obtain a warrant?
Evidential material found may be found inadmissible
