Chapter 4: Search and Surveillance **

Question 1

Search & Surveillance

What is the search hieracy?

Answer 1

1) Search warrant
- always consider a search warrant before using a warrantless search

2) Warrantless search power

3) Consent search
- consider using a warrantless search power if avaliable instead if asking for consent

Question 2

Search & Surveillance

Define unlawfully at large.

6 different situations

Answer 2

1) has an arrest warrant (excluding a fines warrant)
2) escaped from prison or absent without leave
3) has escaped from lawful custody (i.e. police cells or police car)
4) is a special or restricted patient and has escaped or failed to return (mental health)
5) is a special care recipient and has escaped or failed to return (intellectual disability)
6) is a young person who is the subject or a Youth Court “Supervision with residence” order and they are absconding from CYF custody (YJ)

Question 3

Search & Surveillance

Case Law - R v Williams [2007]

What is inevitable discovery? Is is admissable?

Answer 3

If evidence obtained as a results of a breach of the BORA would have been obtained even if the breach had not been taken into account, the fact that it would have inevitably have discovered is a factor to be taken in to account in determining whether it is admissible.

However it will not be admissible as a matter of course.

Question 4

Search & Surveillance

Case Law - R v Jefferies [1994]

Lawfulness and reasonableness of searches

Fruit of the poisoned tree

Answer 4

If you use a warrantless search power where you had the opportunity to obtain a warrant, the search may be deemed unreasonable (this is very likely) and any evidential material may be deemed inadmissible.

That case law states “Lawfulness is not inevitably determinative of reasonableness, or unlawfulness of unreasonableness”
If particular evidence would still have been discovered if the unlawful search had not been conducted, then the evidence may still be deemed admissible.

Question 5

Search & Surveillance

Section 7

Answer 5

Entry to arrest person unlawfully at large.

If you have RGTS that a person is ULAL AND RGTB that the person is in a place or vehicle, you may enter the place or vehicle without warrant to search for and arrest the person.

Question 6

Search & Surveillance

Section 8

Answer 6

Entry to avoid loss of offender or evidential material.

• RG2 suspect that a person has committed an offence punishable by imprisonment for which they may be arrested without warrant AND
• RG2 believe that the person is in a place or vehicle AND
• RG2 believe that if entry is not effected immediately, either or both of the following may occur:
  
  • the person will leave the place of vehicle to avoid arrest
  • evidential material relating to the offence for which the person is to be arrested will be CADD

you may…

Enter the place/vehicle, search for and arrest the person you suspect has committed the offence.

You may not search for evidential material unless as arrest is made and a search incidental to that arrest is undertaken.

Question 7

Search & Surveillance

Section 14

111

Answer 7

Entry to prevent offence or respond to risk to life or safety

RG2 suspect in relation to a place/vehicle:
- an offence is being, or is about to be committed, that would be likely to cause injury to any person, or serious loss of or serious damage to any property

OR

• there is risk to the life or safety of any person that requires an emergency response

you may…

Enter the place/vehicle without warrant and take any action you have reasonable grounds to believe is necessary to:

• prevent the offending from being committed or continuing OR
• avert the emergency

Question 8

Search & Surveillance

Section 15

14+ place

Answer 8

Entry and search of place to find and avoid loss of evidential material

RG2 suspect an offence punishable by 14 years imprisonment or more has been, is being, or is about to be committed AND
believe that evidential material relating to the offence is in a place AND
if entry is delayed in order to obtain a search warrant, the evidential material will be CADD

you may…

enter and search the place without warrant.

NOTE
Section 15 is about urgency. Once the urgency has passed and the scene is secured, a warrant should be obtained.

Question 9

Search & Surveillance

Section 16

14+ person

Answer 9

Searching people in public place for evidential material

RG2 believe that a person is a public place is in possession of evidential material relating to an offence punishable by 14 years imprisonment or more

you may search that person without a warrant.

Question 10

Search & Surveillance

Section 17

14+ vehicle

Answer 10

Entry and search of vehicles in a public place for evidential material

RG2 believe that evidential material relating to an offence punishable by 14 years imprisonment or more is in or on a vehicle in a public place.

you may search that vehicle without a warrant.

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

Question 11

Search & Surveillance

Section 18(3)

Arms

Answer 11

Warrantless searches associated with arms

RG2 suspect that there are arms in any place/vehicle:
- relating to any category 3 or 4 offence or to any breach of the Arms Act 1983 that has been, is being, or is about to be committed

OR

• evidential material in relation to those offences

you may…

Enter the place, search it, seize and detain any arm or licence under the Arms Act found there.

Question 12

Search & Surveillance

Do you need approval to invoke a warrantless search for arms?

Answer 12

Obtain approval from a sergeant or above before exercising the warrantless power unless impracticable in the circumstance.

Question 13

Search & Surveillance

Section 28

Off. Weapon’s

Answer 13

Searching vehicles for offensive weapons

RG2 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

AND

the vehicle contains a knife, offensive weapon or disabling substance

you may…

search the vehicle without warrant

Crimes Act Sec. 202(4)(a)
who, without lawful authority or reasonable excuse, has with him or her in any public place any knife or offensive weapon or disabling substance;

Question 14

Search & Surveillance

Define a disabling substance

Answer 14

Means anything 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 15

Search & Surveillance

Define an offensive weapon

Answer 15

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 16

Search & Surveillance

Section 29

Stolen prop.

Answer 16

Warrantless search of vehicle for stolen property

RG2 believe that any stolen property is in or on any vehicle, you may search the vehicle without a warrant.

NOTE:
This section is intended to allow you to search a vehicle in a public place. It the vehicle is on private property, you should seek a search warrant or use an alternative warrantless power.

Question 17

Search & Surveillance

Section 83

After K9, EM from place

Answer 17

Entry and search of places after arrest

If you have arrested a person for an offence and BELIEVE that evidential material for the offence is at a place

AND

(BELIEVE - sentence continues from above) if entry is delayed to obtain a warrant, CADD will occur

you may…

enter the place to search for evidential material relating to the offence (whether or not the person was arrested there) without a warrant

Question 18

Search & Surveillance

Section 84

After K9, EM from vehicle

Answer 18

Entry and search of vehicle after arrest

If you have arrested a person and 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.

NOTE:
No mention of CADD in this section. CADD is included when entering a place but not here.

Question 19

Search & Surveillance

At what age can people consent to being searched?

Answer 19

A person under 14yo 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.

Question 20

Search & Surveillance

What are some examples of situations which are exempt from the consent search rules?

3 examples

Answer 20

1) Search conducted as a condition of entry to any public or private place
2) Search conducted under a power conferred by an enactment
3) Entry to property under an implied licence

Question 21

Search & Surveillance

Do you have to have a reason to ask someone to consent to a consent search?

Casey’s notes.

Answer 21

Yes.

You can’t go on a ‘fishing expedition’

These are the acceptable reasons:
• to prevent the commission of an offence
• to protect life or property, or to 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 22

Search & Surveillance

What’s the advice that needs to be given before a consent search?

Answer 22

1) Determine that there’s a good reason to ask for the consent search (section 92 lists these reasons)
2) Advise the person of the reason for the search and that they may consent or refuse to consent to the search.

NOTE:
This isn’t a search power so we don’t legally have to identify yourself but it’s best practice to give our name and identify ourselves as police if not in uniform.

Question 23

Search & Surveillance

Whats the deal with consent searches for children under 14 years old?

Place, vehicle and person

Answer 23

Can’t consent to the search of a place.

Can’t consent to a search of a vehicle unless they are the driver and there are no passengers over 14 who can give consent for the search.

Can consent to a search of themselves or anything in their immediate possession or control.

Question 24

Search & Surveillance

What is ‘implied licence’? relates to entering property

Answer 24

It is assumed that members of the public, including Police officers, can enter private property to make an inquiry of an occupier (i.e. they can walk up to the front door and knock)

This implied licence can be revoked by the occupier at any time.

Question 25

Search & Surveillance

Powers incidental to any search warrant or warrantless search power.

Can you bring and/or use equipment at the address/vehicle?

Explain what you can do

Answer 25

You can bring and use equipment or just use equipment that is found at the address.

You may also use the electricity at the address to operate that equipment.

(i.e. lights, power tools etc.)

Question 26

Search & Surveillance

Powers incidental to any search warrant or warrantless search power.

Can you copy documents that you find during a search?

Answer 26

Yes.

You can copy any document, or part of a document, that may be lawfully seized.

Question 27

Search & Surveillance

Powers incidental to any search warrant or warrantless search power.

What about accessing computer systems or other data storage devices?

Answer 27

You can use reasonable measures to access a computer system or other data storage device located (wholly or it part) at the place, vehicle or other thing.

If the intangible material on the device is the subject of the search.

Question 28

Search & Surveillance

You’re executing a search warrant or warrantless search power and you’ve got an assistant to help you (i.e. a non-Police specialist, iwi community member etc.)
What do you need to do with them?

Answer 28

Accompany them when they first enter the place/vehicle and provide reasonable supervision of them.

You’re responsible for them. If they do anything illegal it’s on you.

Question 29

Search & Surveillance

Securing scenes while a search warrant is sought.

What are the rules?

Section 117

Answer 29

A search warrant is about to be made or one has been made but it hasn’t been granted/refused yet,

you may…

• enter and secure the place, vehicle or other things and,
• secure any item(s) found there and,
• direct other people to help you

if you…
BELIEVE that evidential material may be CADD before a decision is taken to grant/refuse the warrant.

You can hold the scene for 6 hours max or until the warrant is refused/granted ready to be executed.

Question 30

Search & Surveillance

Powers of detention incidental to searches of places/vehicles

Section 118

Answer 30

You can detain any person to determine whether this is a connection between them and the object of the search if the person:

• was there at the start of the search or
• arrives, stops at, enters or tries to enter the vehicle/place

You can use reasonable force to effect the detention (e.g. handcuffs)

NOTE from Casey’s notes: **
The detention can’t be longer than the search. Starts when you direct them to remain and ends when you tell them they’re free to go.

Question 31

Search & Surveillance

Determining a connection between a detained person and the search that’s being conducted.

Answer 31

As soon as a person is detained under section 118 you must take ‘active steps’ to determine if they’re connected to the subject of the search.

You can’t just finish the search and then consider who is involved. In essence, once people have been excluded and cleared or suspicion they should be freed.

Question 32

Search & Surveillance

Powers to search persons at a place or vehicle.

What’s the rules about searching people at the scene and those who turn up to the scene after the power has been invoked?

Answer 32

If you’re searching a place/vehicle you can search any person found at the place or who arrives at, stops at or enters/tries to enter.

This is if you:

1) BELIEVE that evidential materiel that is the subject of the search is on the person OR
2) SUSPECT the person is in possession of a dangerous item that poses threat to safety AND you BELIEVE that immediate action is needed to address the threat.

NOTE:
If you seize any item that poses a threat then you have to return it when the search is done unless it’s an illegal item.

EXCEPTION:
If the search is for drugs than you can search any one at the scene as a matter of course.

Question 33

Search & Surveillance

Powers of entry/search when someone flee’s from the scene of an intended search?

Answer 33

If you intend to search a person or vehicle but they leave before you can start or finish the search:

You may:
apprehend the person or enter any place to apprehend the person or vehicle

If you have:
been freshly pursuing the person from the intended search location AND you believe that relevant evidential material is still on the person or in the vehicle.

NOTE:
You can effect the apprehension or undertake the search only if you are the officer in fresh pursuit, unless you are acting as that officers assistant and under their direct supervision.

Question 34

Search & Surveillance

What are the powers of entry with search powers? warrants and warrantless powers.

Section 110

Answer 34

Every search power authorises you to enter and search the place/vehicle/other thing/items found inside, at any reasonable time.

i.e you can search it…i’m not sure why they needed a whole section for this.

Section 110.

Question 35

Search & Surveillance

Search warrants for vehicles that aren’t in public.

Can you enter the place to search the vehicle?

Answer 35

Yes you can if you believe that the vehicle is at the place.

That is if the search warrant (not a warrantless power) gives permission to search and enter a vehicle.

Question 36

Search & Surveillance

What are the requirements for announcement and identification when exercising search powers?

Warrant? Warrantless?

Answer 36

Before you initial entry you must:

• announce your intention to enter/search under a statutory power
• identify yourself by name or unique identifier
• if not in Police uniform, produce evidence of your identity

If its a warrant:
- before or on initial entry you must provide a copy of the search warrant to the occupier or person in charge of the vehicle.

If that’s not possible/practicable you can produce:

• a printout, facsimile, electronically generated copy
• a copy which is endorsed to that effect (??)

If it’s a warrantless search or when you’re securing a scene pending a warrant:
- if requested by any person affected, state the Act and the reason unless it’s impracticable to do so.

EXCEPTIONS:

• no person is present
• compliance with the requirements would:
  i) endanger the safety of any person
  ii) prejudice the successful exercise of the entry/search
  iii) prejudice ongoing investigations

Question 37

Search & Surveillance

If you’re executing a search in plain clothes but with a SRBA/BAS over-top, are you required to show ID to prove that you’re a Police officer?

What are the rules around what is defined as ‘in uniform’?

Answer 37

Yes. Just wearing a SRBA isn’t enough. You will need to produce ID.

You must ONLY be wearing uniform. If it’s not approved by the Commissioner, or approved for only special conditions, you are not deemed to be in uniform.

Uniform is distinctive clothing or equipment that is issues by the Commissioner. It should have a colour scheme, patter or style so that you’re readily identifiable as a Police employee.

Question 38

Search & Surveillance

If you have a search warrant for a property and arrive to find that the target has parked his vehicle on the roadside, can you still search it?

Answer 38

No. You’ll need a separate warrant or warrantless power.

If it was parked inside the property then you could search it under the warrant.

Question 39

Search & Surveillance

If you’re searching a property and find evidence of an offence that is unrelated to what you’re search warrant relates to, can you seize those items?

When can you? when cant you? what power?

Answer 39

Yes you can.

Under s.123 you can seized anything in plain view if you BELIEVE that you would be able to obtain a warrant to seize it if you had time (or believe that there is an enactment which would allow you to seize it).

This is for when you’re lawfully in a place or carrying out a legal search.

Question 40

Search & Surveillance

When can you seize an item of uncertain status?

Uncertain meaning that you don’t know what the thing is…not whether it’s stolen or not.

Answer 40

s.112:

When you’re exercising a search power for a certain thing and you find something which you are unsure of whether it is that thing.

i.e. you’re searching for cocaine and find a white powder and you’re unsure if it’s cocaine or not.
If you find a T.V. which you suspect is stolen you can’t seize it under this power.

You will need to consider the circumstances and decide if:

a) a s.123 search is appropriate
b) another search power can be invoked
c) you can secure the item pending a search warrant (s.117)

Question 41

Search & Surveillance

When you conduct a search and seize property, when you need to provide the owner an inventory of the seized items?

Answer 41

As soon as practicable and no later than 7 days after the seizure.

Provide:

• an inventory
• a copy of the authority (i.e. the warrant)

This goes to the occupier, person in charge of a vehicle, someone you believe to by the owner of a thing.

Question 42

Search & Surveillance

Define ‘curtilage’

Answer 42

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 43

Search & Surveillance

What can you do under s.9?

Obligations after power enacted?

Answer 43

Stop a vehicle to arrest a person if:

• SUSPECT a person is ULAL or has committed an imprisonable offence
• BELIEVE the person is in/on the vehicle

MUST:
Immediately after the stopping the vehicle:
  - identify yourself to the driver
  - state the Act unless impracticable
  - show ID if you aren't in uniform

Question 44

Search & Surveillance

After you stop a vehicle under s.9, do the passengers have to provide their details to you?

Answer 44

Only if you suspect that they are ULAL or have committed an imprisonable offence.

Question 45

Search & Surveillance

After you have stopped a vehicle under s.9, when can you search the car for evidential material?

s.10

Answer 45

First you need to arrest a person in the vehicle (or see them fleeing from the vehicle).

Then you can search the vehicle to search of evidential material relating to the offence which the vehicle was stopped for.

NOTE:
You can also search the vehicle for the person if you believe that they’re inside.

Question 46

Search & Surveillance

Under s.30, Police can set up road blocks to stop a vehicle which is believed to have an occupant that is ULAL or has committed an imprisonable offence.

Who can authorise this?

How long can the block be set up for?

How does this block get extended?

Answer 46

A ‘senior’ constable (holding or acting as a sergeant of above) can authorise the road block (orally or in writing)

• BELIEVE that suspect is in the vehicle
• SUSPECT that they are ULAL or have committed imprisonable offences
• SUSPECT that they will be heading your way

Valid for 24 hours.

Can be extended for a further 24 hours by a District Court Judge in writing. Can only be extended once.

NOTE:
If you authorise the roadblock you must keep a written record of:
- the location
- the times and grounds for when authorisation was granted or renewed

Question 47

Search & Surveillance

Section 16.

Search person.

Answer 47

Search a person:

• in a PUBLIC PLACE
• BELIEVE that they have evidential material on them which relates to a 14+ YEARS IMPRISONMENT offence

Question 48

Search & Surveillance

Section 27

Search person for weapons

Answer 48

Search a person if:
- SUSPECT that they are committing an offence against s202A(4)(a) of the Crimes Act

Relates to possession of knives, offensive weapons, and disabling substances.

Doesn’t need to be in a public place.

Question 49

Search & Surveillance

Which search powers would be used for searching arrested or detained person?

Not s.11

Answer 49

• A rubdown search, under s85-87

- A warrantless search under s.88

Question 50

Search & Surveillance

Section 11 search of person ‘locked up’

Answer 50

You can search a person who has been taken in to lawful custody when they are:

• at a Police station or other such place or vehicle used for custody
• is, or is to be, locked up

This doesn’t include when someone is in a Police vehicle only to transport them somewhere.

You can only search someone AFTER they have been ‘locked up’ IF:

• they weren’t searched beforehand
• SUSPECT they have been in close proximity to someone who is not locked up or locked-up/not searched
• BELIEVE the person is in possession of anything that may be used to harm any person.

Don’t do a full s.11 search when you arrest someone or else it’s difficult to do one at custody. You should instead to a rub-down search (s.85) and leave the s.11 search to the custody staff.

s.11 searches are not intended to be used to find evidential material. They’re designed to be used for custody staff.

Question 51

Search & Surveillance

Section 85 search

Answer 51

Rub-down search or a person who is arrested OR detained under ANY enactment, to ensure the person is not carrying anything that may be used to:

• harm any person or
• facilitate the person’s escape

Can be used on ANY person that is arrested or detained.

Question 52

Search & Surveillance

Section 88 search

Basic answer

Answer 52

Search person for evidential material after arrest/detention

Believe that there is anything on or carried by that person that:

• is evidential material RELATING TO THE OFFENCE WHICH THE ARREST WAS MADE or the person detained.
• may harm any person or facilitate their escape

Question 53

Search & Surveillance

Do you need approval when taking samples from an arrested person’s external body?

Answer 53

Yes. From a Sergeant or above.

s.88 search.

Question 54

Search & Surveillance

What are the rules and obligations when searching a person?

Answer 54

• identify yourself
• state the name of the Act AND the reasons for it (unless it is impracticable)
• show ID if not in Police uniform
• promptly provide the person with a copy of an inventory of any items seized during the search

RA(I)N + inventory
Same for LTA s.119

Question 55

Search & Surveillance

What is a rub-down search? s.85

What about ears, nose and mouth? s.87

What about getting them to remove clothing? s.86

Answer 55

s. 85
- Rub or pat down the person’s body, whether outside or inside their clothing (other than the underclothing)
- insert your hands into any pocket or pouch in their clothing
- for a visual inspection, require the person being searched to (i) open their mouth, (ii) display their palms or soles of feet, (iii) lift or rub their hair

s.87
You can also look inside the nose, mouth and ears. You can use any instrument to do this (i.e. magnifying glass, torch) but you can’t put anything inside the orifices.

s. 86
- You can require them to remove, raise or open outer clothing.
- remove ANY head covering, gloves or footwear including socks and stockings
- you can any of these removed clothes
- you can search any items carried by them or in their possession

Question 56

Search & Surveillance

What are the obligations when seizing or removing any items or property from a person?

Answer 56

Must promptly prepare an inventory of what was removed or seized and provide the person with a copy.

This covers items which are seized under ANY enactment.

Question 57

Search & Surveillance

Law note
McRae v Police [2017]

Inquiring as to a reasonable excuse for possessing an offensive weapon before conducting a search.

Answer 57

Police stopped a car because of roadworthiness and sighted a machete in the back seat.

A search was conducted and afterwards, the driver was asked for an explanation. He said it was for camping and didn’t comment further.

At court, the defence brought up an older piece of case law about a man who was searched because he had a craft knife on him. That man had a genuine work reason for having the knife on him. The court decided that Police should have asked these questions before conducting the search.

In the machete case, the judge advised that Police should have asked for an explanation before searching. Then after hearing the unreasonable excuse, a search could be conducted.

In this case, the court was satisfied that there would be very few legitimate reasons for having a machete in the back seat or a car so the search was deemed lawful.

Key takeaway
Depending on the type of ‘weapon’ and circumstances, consider asking for an explanation before conducting a search.

Question 58

Search & Surveillance

What does ‘Locked up’ mean?

Answer 58

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

e.g. a cell or charge room at a station. a mobile station.
NOT a Police car if you’re just transporting them

Question 59

Search & Surveillance

When conducting a road block under s.30 (looking for somone who is ULAL/Offender) what powers do you have for demanding details and/or searching vehicles which are stopped?

Answer 59

You can stop any vehicle regardless of whether you suspect that they are your target vehicle.

You can require particulars of any person in any stopped vehicle IF you SUSPECT they have committed an imprisonable offence (doesn’t say ULAL)

You can search the vehicle to locate a person who is ULAL or an offender IF you BELIEVE that they are in the vehicle.

You can require the vehicle to remain stopped for as long as reasonable necessary to exercise the above powers (no time limit).

There is a power of arrest if they don’t remain stopped.