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.

You can’t search for evidential material unless an arrest is made and a search incidental to that arrest is undertaken under sections 83-88.

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

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.

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.

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

Answer 11

Secure scene while search warrant is pending (6 hrs)

Question 12

What obligations 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

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.

If you arrest the person you can search the vehicle for evidential material relating to the offence.

You must advise the person responsible for the vehicle if they weren’t the one you arrested, the reason for the search etc.

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

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

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
• under the Domestic Violence Act they have a PO or a PSO is in place

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

Unless impracticable obtain approval from a Sgt.

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.

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
• penile swab (to obtain victim’s DNA from offender relating to a sexual violation)

For the purpose of this section, the search must be lawful, reasonable and approved by a Sergeant or above

Question 26

Section 28 - searching vehicles for offensive weapons

Answer 26

If you have reasonable grounds to suspect a person travelling in a vehicle or who has alighted from it is committing an offence in a public place AND

The vehicle contains a knife, offensive weapon, or disabling substance;

You may search the vehicle.

Question 27

Section 29 - searching vehicles for stolen property

Answer 27

If you have reasonable grounds to believe that any stolen property is in or on any vehicle;

You may search the vehicle.

Note: only when the vehicle is in a public place

Question 28

Section 84 - entry and search of vehicles after arrest

Answer 28

If you have arrested a person and have reasonable grounds to believe that evidential material relating to the offence is in a vehicle;

You may search that vehicle

Question 29

Section 119 - power to search persons at a place/vehicle (Person arrives during search)

Answer 29

If you are searching a place/vehicle you may;

Search any person found at that place/vehicle OR

Who arrives at the place OR

Who stops at, or enters, or tries to enter or gets into the vehicle.

If you have reasonable grounds to believe that evidential material that is the object of that search is on that person OR

You 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 the threat.

Question 30

Section 92 - purposes for which consent search may be undertaken

Answer 30

You may ask a person to consent to a search of a place, vehicle or other thing;

• to prevent the commission of an offence
• to protect life or property, or 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

Question 31

Exceptions to consent search:

Answer 31

Search conducted as a condition of entry to any public place or private place

Search conducted under a power conferred by an enactment

Entry to property under an implied licence

Question 32

What you must say prior to a consent search:

Answer 32

Determine that the search is eg to prevent life or property etc

Advise the person for the reason for the search

That they may consent or refuse to consent to the search

*A person under 14 years of age can consent to a search of themselves or anything in their immediate possession or control.

Question 33

Section 120 - powers of search when suspect pursued

Answer 33

If you intent to search a person or vehicle, but that person or vehicle leaves before you are able to start or complete the search;

You may apprehend the person OR

Enter any place to find them

If you have been freshly pursuing the person from the intended search location AND
You have reasonable grounds to believe that relevant evidential material is still on the person or vehicle

You can only apprehended if you are the officer in fresh pursuit, unless you are acting as that officers assistant under 113 and are under their direct supervision and control

Question 34

Section 27 - search of people with offensive weapons

Answer 34

You may search a person if you have reasonable grounds to suspect the person has an offensive weapon

Question 35

Section 113 - using assistants during searches

Answer 35

You can call on a person to assist you to exercise a search power, or a person has been required to assist you as a condition of a warrant;

They are subject to your control and the overall responsibility for exercising the power rests on you.

Unless they are a Constable, you MUST

• accompany them when they first enter the place, vehicle or other thing AND
• provide reasonable supervision of them

They must only search places that are lawful as determined by you.

Question 36

Section 118 - powers of detention incidental to searches of places/vehicles

Answer 36

You may use reasonable force to effect and continue detention

Must be for a reasonable period of time, but no longer than the duration of the search

You must determine if the person has a connection with the search, if they don’t then you must let them leave

Question 37

Section 127 - search warrant to enter and search vehicles

Answer 37

If you have a search warrant that authorises the search and entry of a vehicle;

You may enter any place where you have reasonable grounds to believe the vehicle is to locate and search it

Question 38

Section 131 - I.D and announcement requirements

Answer 38

If you exercise a search power, before entry you must;

Announce your intention to enter and search
I.D yourself by name or QID
If not in uniform, produce I.D

You also must, either before or on initial entry, provide the occupier of the place or person in charge;

A copy of the search warrant (if not practicable) you may execute a fax or a print out of an electronically generated copy of the warrant or a copy which is endorsed to that effect.

Question 39

What can you seize during a search?

Answer 39

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 exercise plain view seizure under section 123

Question 40

Section 123 - Seizure of items in plain view

Answer 40

If you are exercising a search power or are lawfully in a place as part of your duties, you may seize any time, if you have reasonable grounds to believe you could have seized the item under:

• any search warrant obtained under the S & S Act
• any other search power exercisable by you under the S & S Act or any other Act

Question 41

Section 112 - items of uncertain status

Answer 41

If you are not certain if something can be seized and it is not practicable to determine that where the search takes place, you may;

Remove the item for examination or analysis to determine whether it may be lawfully seized.

Eg your warrant is to locate cocaine and you find a white powder. You can take this package for testing.

Eg you cannot use this power if your warrant was to find cannabis but you find a TV and you are unsure if it’s stolen. You would need to consider if you could exercise a plain view seizure or to secure the scene pending a warrant under section 117.

Question 42

Notice and inventory requirements after search/seizure

Answer 42

Searches when occupier or person in charge of place or vehicle or thing is there;

• you must give that person before or on entry 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 present during search’
• OR if warrantless, a copy of the ‘Notice to person present during warrantless search POL 1275.

Exceptions to this is when you do an unannounced forced entry.

Question 43

Searches conducted of vehicle or thing when person isn’t there;

Answer 43

Leave in a prominent position at the place or vehicle 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’

Question 44

Searches relating to items being seized, what must you do?

Answer 44

At the time of item seized, or as soon as practicable after the seizure and no later than 7 days:

• provide to the occupier or owner an inventory of items seized and accompanying ‘Notice to owners and others in relation to things seized’ AND
• a copy of authority eg a copy of the warrant or POL 1275 if the owner is different from the person in charge and they have not previously received the relevant form.

Question 45

Section 31 - duration and record of road block

Answer 45

Valid for an initial period of up to 24 hours.

May be renewed from time to time by a DC Judge for a single further period not exceeding 24 hours.

If you authorise a road block you must keep a written record of:

• the location
• the period for and the grounds on which authorisation was granted or renewed

Must do a community impact assessment (CIA) where;

• vulnerable people are present
• on the community and interested groups

Conducted in writing.