7. Search And Surveillance Act 2012 Flashcards
Define “Arms” under the Search and Surveillance Act 2012.
Any firearm, airgun, pistol, restricted weapon, imitation firearm, explosive or ammunition.
Define “curtilage” under the Search and Surveillance Act 2012.
The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated open fields beyond.
It defines the boundary within which the owner of a building can have a reasonable expectation of privacy and where common daily activities take place.
Define “evidential material” under the Search and Surveillance Act 2012.
Evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.
Define “private premises” under the Search and Surveillance Act 2012.
Private dwellinghouse, Marae, and other premises not defined under “non-private premises”.
Define “non-private premises” under the Search and Surveillance Act 2012.
Premises or part of a premises to which the public are frequently permitted to have access.
I.e. parts of a hospital, bus station, airport etc.
Define “private activity” under the Search and Surveillance Act 2012.
In the circumstances, any one or more of the participants in the activity reasonably expect not to be observed or recorded by other external parties
Define “surveillance device” under the Search and Surveillance Act 2012.
Means:
a) an interception device
b) a tracking device
c) a visual surveillance device
Define “interception device” under the Search and Surveillance Act 2012.
A device capable of interception or recording private communications.
Define “tracking device” under the Search and Surveillance Act 2012.
A device that may help ascertain:
a) the location of a person/thing
b) whether something has been opened/tampered with.
Define “visual surveillance device” under the Search and Surveillance Act 2012.
A device that enables private activities to be observed, or observed and recorded.
Define “trespass surveillance” under the Search and Surveillance Act 2012.
Surveillance that involves trespassing to land or goods.
Explain the warrant preference rule.
A s6 search warrant should preferably be obtained for every search - R v Laugalis.
Warrantless power to be invoked only in urgent situations (flee of K9, CADD evidence, risk to life etc.)
Order:
Search warrant - s6
Oral warrant - s100
Warantless search
Consent search
Explain what thresholds are required to obtain apply for a s6 search warrant.
RGTS an offence punishable by imprisonment has/is/will be committed; and
RGTB the Search will uncover evidential material in respect of the offence in that place/vehicle/thing.
Define “Reasonable Grounds to Suspect” under the Search and Surveillance Act 2012.
Requires the enforcement officer to hold a suspicion that the state of affairs is “inherently likely”.
Define “Reasonable Grounds to Believe” under the Search and Surveillance Act 2012.
Requires an element of actuality. The officer must believe that the state of affairs is a matter of fact.
What is s7 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Entry to arrest person U/L at large.
- RGTS person U/L at large, AND
- RGTB they are in that place/vehicle
What is s8 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Entry to avoid loss of EM/offender.
- RGTS person has committed an IO, AND
- RGTB they are in that place/vehicle, AND
- RGTB if entry is delayed, person will leave to avoid K9 AND/OR EM will be CADD.
What is s9 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Stop vehicle without warrant for K9
You may stop a vehicle if:
- RGTS person is U/L at large OR has committed an IO, AND
- RGTB in that vehicle
What is s10 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Powers after vehicle stopped under s9.
You may:
- REQUIRE details from person you suspect IO or U/L at large.
- SEARCH vehicle for suspect.
- SEARCH vehicle for EM if suspect K9’d or fled.
Must RAIN the driver. [s131]
What is s15 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
(Serious Offences)
Entry/search to avoid loss of EM.
-RGTS serious offence (14+ years) has/is/about to be committed, AND
- RGTB EM is in that place AND if Entry is delayed it will be CADD
What is s16 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
(Serious Offences)
Search person in P/P for EM
- RGTB person in a P/P is in possession of EM relating to a serious offence (14+ years)
What is s17 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
(Serious Offences)
Enter/Search vehicle in P/P for EM
- RGTB EM relating to a serious offence (14+ years) is in/on a vehicle in a P/P
What is s18 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Warantless search associated with Arms.
RGTS:
- Breach of the Arms Act 1983, or
- Physical/mental condition, incapable of proper control over them, or may kill.
- PO/PSO is in effect, or there are grounds to make an application.
- Cat 3/4 offence, or offence against the Arms Act 1983 has/is/will happen.
- EM in relation to cat 3/4 offence, or offence against the Arms Act 1983.
Can enter, Search any person/place, seize Arms and firearms licence.
What is s20 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Search of place/vehicle in relation to MODA 1975
- RGTB it is not practical to get a warrant, AND in/on veh/place there is a controlled drug described in:
- Schedule 1 MODA
- Part 1 of schedule 2 MODA
- Part 1 of schedule 3 MODA or
- precursor substance Part 3 of
Schedule 4 in MODA
- RGTS offence against MODA has/is/about to be committed in that place/vehicle, AND
- RGTB if entry/search is delayed, EM will be CADD.
What is s21 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Warrantless search of people (when s20 already invoked)
When invoking s20, you may search any person found in/on that place/vehicle.
Includes people who arrive at location after search commencement.
What is s22 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Warrantless search of person in P/P in relation to MODA 1975.
- RGTB person is in possession of a controlled drug specified in:
- Schedule 1 MODA
- Part 1, Schedule 2 MODA
- Part 1, Schedule 3 MODA, or
- Precursor substance Part 3
Schedule 4 MODA.
- RGTS offence against MODA has/is/about to be committed.
What is s27 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Warrantless search of person in P/P for offensive weapon
- RGTS committing an offence against 202A(4)(a) Crimes Act 1961
What is s28 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Search vehicle in P/P for offensive weapons.
- RGTS a person is travelling in a vehicle committing an offence against s202A(4)(a) Crimes Act 1961, AND
- RGTS vehicle contains a knife, offensive weapon, or disabling substance.
What is s83 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Entry/search place after K9.
If you have arrested someone, AND
-RGTB EM relating to the offence is in that place, AND
- RGTB EM will be CADD if delayed to get a warrant.
What is s84 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Entry/search vehicle after K9.
If you have arrested someone, AND
- RGTB EM relating to the offence is in the vehicle.
What is s112 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Items of uncertain status.
- If you are exercising a search power AND
- Unsure whether you can lawfully seize an item AND
- it is not practicable to determine its status there
You may take it for analysis to determine whether it may be seized.
What is s117 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Power to secure place/vehicle
- If SW is about to be or has been made you may enter and secure the place/vehicle and items within, IF
- RGTB EM will be CADD before decision on SW is made.
Expires:
- 6 hours after first invoked; or
- Warrant is made available; or
- Warrant is refused
Whichever occurs first
Note: when securing a place under s117, you CAN seize items in plain view (s123).
What is s121 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Stopping vehicle with/without Warrant.
If you are satisfied there are grounds to search the vehicle (SW or warrantless power), then you may stop it.
What is s122 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Moving vehicle for search or safekeeping.
If you find/stop a vehicle, you may move it to another place if:
- you have lawful authority to search the vehicle, but is impractical to do so at that place, OR
- RGTB it is necessary to move the vehicle for safe keeping (only officer with power of arrest can invoke this clause).
What is s123 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Seizure of items in plain view.
- If you are lawfully on any vehicle/property, OR exercising a search power on the vehicle/property AND
- RGTB you could seize an item under any power
Then you may seize that item.
What is s45 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Restrictions on some trespass Surveillance and use of interception devices.
You can not undertake trespass Surveillance OR use an interception device UNLESS it is used to obtain EM for:
- 7+ year offences, OR
- Specific Arms Act 1983 offences (s44, s45, s50, s51, s54, s55).
*Note: Arms Act offences generally relate to unlawful possession of various Arms.
What is s46 under the Search and Surveillance Act 2012.
Activities for which a Surveillance warrant is required.
Except for s47 and s48, a Surveillance device warrant is required for:
a) interception device used to intercept private communications
b) use of a tracking device (unless it’s used for seeing if something is tampered with, and the device does not require trespasisng).
c) observation of private activity in private premises, and any recording of such activity by visual surveillance device.
d) use of Surveillance device which requires trespass to land or goods.
e) observation of private activity in curtilage of private premises, and any recording of that observation, if any part of that observation/recording is by means of a visual surveillance device, and the duration of the observation for the purpose of a SINGLE INVESTIGATION, or CONNECTED SERIES OF INVESTIGATION exceeds:
(i) 3 hours in any 24-hour period, or
(ii) 8 hours in total.
What is s47 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Some activities that do not require a warrant under the surveillance sub-part.
- Recording what he/she hears whilst lawfully on property (as long as they can see/hear things without the use of a surveillance device)
- Covert audio recording of conversation between two people with the consent of at least one (if one is an enforcement officer, must be careful not to actively elicit required information from other party - may be inadmissible).
What is s48 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Surveillance device warrant not required in times of urgency/emergency.
For a period not exceeding 48 hours.
Relevant for situations where could apply for a warrant, but is impractical in the circumstances.
Must have RGTS:
- 14+ year offence has/is/about to be committed, and RGTB surveillance device would get EM, OR
- Emergency [s14(2)] and RGTB surveillance device needed to avert/stop continuance, OR
- Firearms offence [s18(2] and RGTB surveillance device required to facilitate seizure, OR
- Cat 3/4 offence against Arms Act 1983 has/is/about to be committed and RGTB surveillance device needed to obtain EM, OR
- Offence against MODA has/is/about to be committed, and RGTB surveillance device needed to obtain EM, OR
- RGTB person in possession of drug delivery [s81(2)] and RGTB surveillance device is required to facilitate seizure.
If grounds exist to invoke s48 of the Search and Surveillance Act 2012, what does it allow you to do?
3(a) enter any premises/area/vehicle
3(b) break open/interfere with any vehicle or thing
3(c) temporarily move vehicle or thing and then return it.
Under s46(e) of the Search and Surveillance Act 2012, what can you do without a Surveillance Device Warrant?
1) Observe private activity WITHOUT the use of a Surveillance device from public areas.
2) observe private activity in the curtilage of a private premises by means of a Surveillance device; for a single investigation, or connected series of investigations for a period of observation that does not exceed:
- 3 hours in any 24-hour period, or
- 8 hours in total.
You have been given reliable information a gang member is conducting target practice on his property - he does not have a firearms licence.
Could you go onto neighboring property without their consent to observe the behavior?
Quote relevant Search and Surveillance Act legislation.
Yes because you are gathering EM in relation to an offence against one of the applicable sections of of the Arms Act 1983.
S45(1) can not undertake trespass Surveillance except to get EM in relation to:
(a) 7+ year offences, OR
(b) s44, s45, s50, s51, s54 and s55 of the Arms Act 1983.
What are Police’s obligations when invoking a warrantless power under the Search and Surveillance Act 2012?
s125 - RELATES TO PERSON SEARCH ONLY - Must provide RAN and ID if not in uniform
s131 - RELATES TO SEARCH OF PLACE/VEHICLE ONLY - Must provide RAIN and ID if not in uniform.
s169 - Warantless search notification to Commissioner of Police as soon as practical.
What is s88 under the Search and Surveillance Act 2012.
What grounds are required to invoke it?
Warantless Search for EM on person arrested or detained.
If you have arrested/detained a person and have RGTB they are carrying anything that may:
a) harm any person, OR
b) facilitate their escape, OR
c) have EM relating to the offence they were arrested for.
In layman’s terms, what does s46 of the Search and Surveillance Act 2012 outline?
When a surveillance device warrant (SDW) is required.
To:
a) intercept private communication
b) track a person/vehicle/thing
c) observe/record private activity in private premises
d) a surveillance device involving trespass to land or goods
e) observe/record private activity in curtilage of private property, using a visual surveillance device (time limits apply - 3hrs in a 24hr period, or 8hrs in total for any one or connected investigation).
