4.1 Search & Surveillance

Question 1

What is evidential material?

Answer 1

Evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence.

Question 2

What is the search hierarchy?

Answer 2

You should always consider a warrant first. If this is not practicable, then consider using a warrantless power. Consent search should be last option.
Searches should always be lawful and reasonable.

Question 3

Section 7 - Entry to arrest person unlawfully at large

Answer 3

If you have reasonable grounds to suspect that a person is unlawfully at large and is in a place or vehicle, you may enter the place or vehicle without warrant to search for and arrest the person.

Question 4

Section 8 - Entry to avoid loss of offender or evidential material.

Answer 4

If you have reasonable grounds to suspect an offence punishable by imprisonment has been committed

and believe that the person is in the place or vehicle,

and believe that if entry is not effected immediately, either the person will leave to avoid arrest or the evidential material will be CADD,

you may enter that place or vehicle with out warrant search for and arrest the person you suspect has committed the offence.

Question 5

Section 14 - Emergency Power

Answer 5

Enter place or vehicle and take any action as reasonably necessary if:

an offence is being or about to be committed that would likely cause injury to any person or serious loss / damage to property or

there is risk to the life or safety of any person

Question 6

Section 15 - Search place for evidential material - 14 year offence

Answer 6

If you suspect a 14yr imprisonable offence has, is being, or is about to be committed, and you believe evidential material is in a place and will be CADD, you may enter and search to find evidential material.

Question 7

Section 16 - Search person in public for evidential material - 14 year offence

Answer 7

If you believe a person in a public place has evidential material on him relating to a 14yr imprisonable offence, you may search that person without a warrant.

Question 8

Section 17 - Search vehicle in public for evidential material - 14 year offence

Answer 8

If you believe evidential material relating to a 14yr imprisonable offence is in or on a vehicle in a public place, you may enter an search that vehicle without warrant.

• If a vehicle is not parked in a public place, use section 15 to enter and search vehicle.

Question 9

Section 83 - Entry and search place/vehicle incidental to arrest

Answer 9

If you have arrested a person for an offence and believe evidential material is in the place or vehicle, and that delay in getting a Search Warrant would result in the evidential material being CADD,

you may enter and search the place/vehicle for evidential material relating to the offence.

It does not matter if the person was not arrested there

Question 10

When executing a Search Warrant or Power, who can you search at the scene?

Answer 10

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

suspect that the person is in possession of a dangerous item that poses a threat to to safety and you believe immediate action is needed.

Question 11

Sec 117 - Secure scene

Answer 11

Secure scene while search warrant is pending (6 hrs)

Question 12

Section 131 - What must you do when exercising a search power?

Answer 12

Before entry, you must:

• announce intention to enter and search using a power
• identify yourself by name
• if not in uniform, produce evidence of your identity

131 (1) - Before of on initial entry, provide the occupier a copy of the search warrant

Question 13

Section 131 (2) - When do you not have to announce entry or give reasons for the search?

Answer 13

• no person lawfully present

- compliance would endanger the safety of any person or prejudice the exercise of the entry or the ongoing investigation

Question 14

What factors do you consider before making an unannounced forced entry?

Answer 14

• tactical options available
• reasonable and practical alternative to forced entry
• seriousness of the offence
• history of violence
• danger to police or public or people at the place
• reasonable grounds evidence will be CADD

Question 15

Section 131 (6) - How old does a person need to be to be treated as an occupier or person in charge?

Answer 15

14 years or older.

The only exception is if they are found driving a vehicle and there is no passenger 14 years or older with authority to consent to the vehicles search.

Question 16

What is curtilage?

Answer 16

An area attached to a dwelling house and forming one enclosure with it. In an urban area it would include the area within a dwelling’s fenced boundary.

Question 17

Section 9 - stopping vehicles without warrant to effect arrest

Answer 17

You may stop a vehicle if you have reasonable grounds to suspect that a person who is unlawfully at large or who has committed an offence punishable by imprisonment, is in or on the vehicle.

Question 18

If you stop a vehicle using Sec 9, who can you require give you their particulars?

Answer 18

• You can require the particulars from persons in the vehicle whom you suspect are unlawfully at large or have committed an offence.
• Search the vehicle to locate the person, 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:
  1. arested, or
  2. is seen fleeing the vehicle before they can be arrested.

Question 19

Section 30 - Who can establish a road block and under what grounds?

Answer 19

Sergeant or above (includes acting sergeant).
Must have reasonable grounds to believe that in or on a vehicle, there is
- a person unlawfully at large or
- has committed an offence punishable by imprisonment and
- you suspect the vehicle will pass where the road block is

Valid for 24 hours and may be extended by a judge for a further 24 hours.

Question 20

Section 18 - People in possession of arms

Answer 20

If you have reasonable grounds to suspect a person is carrying arms or is in possession of them, and

• they are in breach of the Arms Act 1983 or
• by reason of their physical or mental condition, are incapable of having proper control or may kill or cause bodily injury to any person

you may

• search the person or anything in their possession or under their control (including a vehicle) and seize any arms found
• you can enter a place or vehicle to search and seize any arms found

Question 21

What does locked up mean?

Answer 21

Taken into lawful custody and being placed behind a closed or locked door which prevents them from leaving.

Question 22

Section 11 (3) - When can you search a person after they have been locked up?

Answer 22

• if they were not searched before being locked up
• reasonable grounds to believe they are in possession of something that may be used to harm themselves or others

since being searched or before being locked up, they were in close proximity to a person who was not locked up, or another person who was eligible to be searched but wasn’t.

Question 23

Section 85 - What is the purpose of a rub down search?

Answer 23

To ensure a person who has been arrested or detained is not carrying anything that may be used to harm any person or facilitate escape.

Question 24

Section 88 - What does Sec 88 entitle you to do?

Answer 24

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

Question 25

What are some examples of when samples from a person’s body may be seized as evidential material pursuant to a Sec 88 search?

Answer 25

• swabs to remove blood on the arrested person
• fingernail scrapings
• penile swab (to obtain victim’s DNA from offender relating to a sexual violation)

Question 26

Inevitable Discovery means?

Answer 26

Evidence obtained as a result of a breach of the New Zealand Bill of Rights which would of been obtained even if the breach had not occurred.

Question 27

Lawfulness vs Reasonable

Answer 27

If the search is unlawful because it was conducted without a warrant, then it is very likely to be unreasonable too.
R V Jefferies ‘Lawfulness is not inevitably determinative of reasonableness or unlawfulness of unreasonableness.
If particular evidence would still be discovered if the unlawful search had not been conducted, then the evidence may still be deemed admissable.

Question 28

Unlawfully at large means?

Answer 28

• Has an arrest warrant
• Has escaped from Prison or is absent without leave
• Has escaped lawful custody
• Is a special or restricted patient and has escaped or failed to return from leave.
• Is a care of special care recipient (intellectual disability) that has escaped or failed to return from leave.
• Is a young person who is subject of a Youth Court Supervision order and have absconded CYF Custody.

Question 29

Section 28 - Searching vehicles for offensive weapons

Answer 29

• 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 202A(4)(a) of Crimes Act 1961 and
• The vehicle contains a knife, offensive weapon, or disabling substance
• May search the vehicle without a warrant

Question 30

Disabling Substance means?

Answer 30

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.

Question 31

Section 29 - Stolen Property

Answer 31

If you have reasonable grounds to believe that any stolen property is in or on any vehicle you may search the vehicle without warrant.
- If the vehicle is on private property you should seek a warrant or use alternative warrantless powers.

Question 32

Section 119 - Searching People when searching places or vehicles..

Answer 32

If you have reasonable grounds to believe that:

• Evidential material that is object of the search is on that person.
• The person is in possession of a dangerous item that poses a threat to safety, and that immediate action is necessary to address the threat.
• Seize the evidential material or dangerous item.

Question 33

Section 121 - Stopping vehicles with or without a warrant to search

Answer 33

You may stop and search a vehicle:

1. Under a power to search without a warrant, if you are satisfied that grounds exist to search the warrant.
2. Under a power to search with a warrant, if you are satisfied that the warrant has been issued and is in force.

Question 34

Section 122 - You may move a vehicle to another place if?

Answer 34

You find or stop a vehicle and 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.

Question 35

Section 27 - Warrantless searches of people for offensive weapons

Answer 35

You may search a person without warrant if you have reasonable grounds to suspect the person is committing and offence against section 202A of the Crimes Act 1961.

Question 36

Section 125 - What are the obligations when Searching people?

Answer 36

You Must:

• identify yourself
• State the name and Act under which the search is taking place and the reasons for it is impracticable to do so.
• Produce evidence of your identity if not in police uniform.
• Provide the person with a copy of inventory of any items seized.

Question 37

Section 85 (2) What is a rub down Search?

Answer 37

• Run/pat hand over the body of the person being searched.
• Insert hand inside pocket/pouch in their clothing
• Visual inspection: request the person to open their mouth, display their palms and feet.