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.

Question 3

Sec 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

Sec 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.

Note: 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.

Question 5

Sec 14 - Emergency Power

Answer 5

If RGTS 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

May enter place or vehicle and take any action as reasonably necessary to prevent the offending or avert the emergency

Question 6

Sec 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.

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

Question 7

Sec 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

Sec 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.

Note: If a vehicle is parked in a place other than a public place, use section 15 to enter and search that vehicle.

Question 9

Sec 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

If a search warrant application is about to be made in relation to a place, vehicle or thing, or has been made but not yet granted or refused by an issuing officer:

Answer 11

Secure scene while search warrant is pending (6 hrs)

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.

You may only exercise these special powers until the first of the following occurs:

• the expiry of six hours from when the power is first exercised
• the warrant is available for execution at that place or vehicle or in respect of that other thing
• the application for a search warrant is refused.
• Either before or on initial entry, provide copy of warrant or advise warrantless search

Question 12

Identification and announcement requirements on entry

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

Question 13

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

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.

Question 17

Sec 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.

Question 19

S30 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

An authorisation to establish a road block:

• is valid for an initial period not exceeding 24 hours specified by the person giving the authorisation, and
• may be renewed from time to time by a district court judge for a single further period not exceeding 24 hours specified in writing by the judge.

Question 20

Se 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

Approval for arms-related searches of places and vehicles
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.

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

Sec 11 - 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

Sec 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.

A rubdown search may include a visual examination (whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, and ears, but must not include the insertion of any instrument, device, or thing into any of those orifices.

Question 24

Sec 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
• a swab of an arrested person’s skin for gunshot residue
• penile swab (to obtain victim’s DNA from offender relating to a sexual violation)

Question 26

Reasonable grounds to believe*

Answer 26

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.

Question 27

Reasonable grounds to suspect*

Answer 27

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.

Question 28

Sec 28 Searching vehicles for offensive weapons

Answer 28

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
• You may search vehicle without warrant

Question 29

Disabling substance and Offensive weapon

Answer 29

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.

‘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.

Question 30

Sec 29 Warrantless search of vehicle for stolen property

Answer 30

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

Question 31

Sec 84 Entry and search of vehicles after arrest

Answer 31

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.

Question 32

Consent Searches

Answer 32

• Before using a consent search, first consider using a search warrant, or if that’s not practicable, a warrantless search power.
• You must have a reason to justify asking a person to consent to a search and the search must not be used to go on ‘a fishing expedition’.
• You must advise the reason for the search and that they can refuse consent or withdraw it at any time.
• A person under 14 years of age cannot consent to the search of a place, vehicle, or other thing - unless they are found driving a vehicle and there is no passenger 14 years or over with authority to consent to the vehicle’s search.

Exceptions to consent search rules include:
- search conducted as a condition of entry to any public or private place
- search conducted under a power conferred by an enactment
 entry to property under an implied licence.

Question 33

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:

Answer 33

• written notice specifying what was seized and 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.

Question 34

Powers under authorised road blocks implemented without warrant

Any constable may do any or all of these things when a road block is authorised.

Answer 34

Establish road block
Establish a road block at the place specified in the authorisation.

Stop vehicles
Stop vehicles at or in the vicinity of the road block.
Require particulars

Require any person in or on any vehicle stopped by the road block who you have reasonable grounds to suspect has committed an offence punishable by imprisonment to state their name, address, and date of birth.
Search vehicle
Search the vehicle for the purpose of locating a person who has committed an offence (punishable by imprisonment) or is unlawfully at large (excluding non-payment of fines warrant), if you or any other constable has reasonable grounds to believe the person is in or on the vehicle.