Chapter 4 - Search And Surveillance Act 2012 Flashcards
Definitions Evidential material Reasonable grounds to believe Reasonable grounds to suspect Unlawfully at large
Evidential material - any item whether tangible or intangible of relevance to the investigation of the offence
Reasonable grounds to believe - having a sound basis for believing that a circumstance or situation actually exists
Reasonable grounds to suspect - having a sound basis for suspecting that a situation or circumstance is likely to exist
Unlawfully at large - means that a person is wanted for arrest under certain enactments
General principals applying to searches
Lawfulness and reasonableness -
Search hierarchy- search warrant warrantless search consent search
Decision records recording grounds to search people
Identification and notice - occupied person has right to know who is searching
Force used against property must be reasonable
Search and seizure should be witnessed
Seized property must be documented
Types of lawful searches
Search warrant
Warrantless search
Consent search
Section 7 search and surveillance act 2012
Entry and search to effect arrest
If you have reasonable grounds to
Suspect that a person is unlawfully at large and
Believe that the person is in a place or vehicle
You may enter the place and vehicle without warrant to search for and arrest the person
Section 8 search and surveillance act
Entry to avoid loss of offender or evidential material
If you have reasonable grounds to suspect that a person has committed an offence punishable by imprisonment and
Believe that the person is in a place or vehicle and
If entry is not effected immediately the person will leave the place or vehicle or evidential material related to the offending may be concealed altered damaged or destroyed you may
Enter and search that place without warrant and search for the suspect and arrest the person
Section 14 search and surveillance act
Entry to prevent offence or respond to risk to life or safety
If you have reasonable grounds to suspect in relation to a place or vehicle an offence is being or is about to be committed or
There is risk to life or safety of any person that requires an emergency response
You may
Enter the place or vehicle without a warrant and take any action you have reasonable grounds to believe is nessecary to
Prevent the offence being committed
Avert the emergency
Section 15 search and surveillance act
Entry and search of places to find and avoid loss of evidential material
If you have reasonable grounds to suspect an offence punishable by 14 years imprisonment has is or is about to be committed and believe
Evidential material relating to the offence is in a place and
If entry is delayed evidential material may be concealed altered damaged or destroyed
You may enter and search the place without a warrant
Section 16 search and surveillance act
Searching people in public place for evidential material
If you have reasonable grounds to believe that a person in 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
Section 17 search and surveillance act
Entry and search of vehicles in a public place for evidential material
Believe that evidential material relating to an offence punishable by 14 years imprisonment or more is in vehicle on a public place you may
Enter and search that vehicle without a warrant
Section 18 search and surveillance act
Warrantless searches associated with arms
Arms in public places or vehicles
If you have reasonable grounds to suspect that there are arms in any place or vehicle
In respect of which any category 3 or 4 offence has been committed or offence against the arms act 1983
Or that there may be evidential material in relation to category 3 or 4 offence or offence against the arms act 1983
You may
Without warrant enter the place or vehicle
Search it
Seize and detain any arms or licence under the arms act 1983 found there
Section 28 search and surveillance act
Warrantless searches for offensive weapons
Searching vehicles for offensive weapons
If you have reasonable grounds to suspect that
A person travelling in a vehicle is committing an offence against section 202(4)(a) of the crimes act 1961 and
The vehicle contains a knife offensive weapon or disabling substance
You may without warrant search the vehicle
Section 29 search and surveillance act
Warrantless search of vehicle for stolen property
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
Section 83 search and surveillance act
Entry and search of places after arrest
If you have arrested a person for an offence and have reasonable grounds to believe that
Evidential,arterial. Relating to the offence is at a place and
If entry is delayed the evidence will be concealed altered damaged or destroyed
You may enter the place and search for the evidential material
Section 84 search and surveillance act
Entry and search of vehicles after arrest
If you have arrested a person and have reasonable grounds to believe that evidential material relating to the offence for which there were arrested in a vehicle
You may enter and search that vehicle without a warrant
Key points to note in regards to consent searches
First consider using either a search warrant or warrantless search power
You must have a reason to justify asking a person to consent to a search
You must advise the reason for a search and that they can refuse or withdraw consent at any time
A person under 14 cannot consent to search of place or vehicle
Exceptions to these search consent rules
Search conducted as a condition of entry
Search conducted under a power conferred by an enactment
Entry to property under an implied licence
Section 92 search and surveillance act
Purposes for which consent search may be undertaken
To prevent the commission of an offence
To protect life or property
To investigate whether an offence has been committed
If you held a suspicion or belief specified in the enactment
Section 93 search and surveillance act
Advice that must be given before searching
Must advise off the reason for the search and
They can withdraw their consent or refuse search at any time
Section 94 search and surveillance act
Circumstances where search by consent is unlawful
It is not for the purpose set out in section 92
You fail to give the required advice in section 93
You undertake a search relying on consent by a person who does not have authority to give consent
Section 95 search and surveillance act
Restrictions on persons under 14 years to consent
A person under 14 years of age cannot consent to of a place vehicle or other thing.
(An exception is if they are driving a vehicle and there is no passenger of or over the age of 14 to consent)
Section 96 search and surveillance act
Exceptions to consent search rules
Consent search rules do not apply to a search conducted as a condition of entry to any public place or private place (concerts etc)
In accordance with a power conferred by an act or
affect the rule of law relating to the implied licence to enter property
Section 117 search and surveillance act
Power to secure scene for when search warrant is pending
If a search warrant has not yet been approved by issuing officer you may
Enter and secure the place or vehicle
Secure any items
Direct any person to assist with the entry
If you believe evidential material may be concealed altered damaged or destroyed before a decision is made to grant or refuse the warrant
You can only exercise the power until the first of the following occurs
Six hours have passed
The warrant has been refused
The warrant has been approved and is ready for execution
Section 118 search and surveillance act
Powers of detention incidental to searches of places and vehicles
If exercising search power in relation to any place or vehicle you may detain any person to
Determine whether there is a connection between them and the object of search
Was there at the start of the search
Arrived while search is being carried out
Section 119 search and surveillance act
Powers to search persons at a place or vehicle
If you are searching a place or vehicle you may
Search any person found at the place or in the vehicle
Any person who Arrives enters etc at the place or vehicle
If you have reasonable grounds to believe that evidential material is ok that person or
Suspect that 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 that threat
Exception
When you are searching the place for drugs
Section 120 search and surveillance act
Powers of search when suspect pursued
If you intend to search a place or vehicle but that person leaves before you are able to start or finish the search you may
Apprehend the person
Enter any place or vehicle to apprehend the person
If you have been freshly pursuing the person from the search location until they have been apprehended and you have reasonable grounds to believe that relevant evidential material is still on the person
Section 131 search and surveillance act
Identification and announcement of entry
If you exercise a search power you must before your initial entry
Announce your intention to enter and search the place or vehicle
Identify yourself by name or QID
If not in uniform produce evidence of identity
Section 121 search and surveillance act
Stopping vehicles with or without warrant to search
You may stop a vehicle to conduct a search
Without a warrant - if you are satisfied grounds exists to search the vehicle
With a warrant if you are satisfied the warrant has been issued and is in force
Section 122 search and surveillance act
Moving vehicle for purpose of search or safekeeping
If you find or stop the vehicle
And you have lawful authority to search the vehicle but it is impracticable to do so at that place or
And you have reasonable grounds to believe that it is necessary to move the vehicle for safekeeping
Section 129 search and surveillance act
Duty to provide evidence Information to vehicle driver
You must
Identify yourself
State the name of the act and the reason for search
If not in uniform produce identification
Section 9 search and surveillance act
Stopping vehicles without warrant to effect arrest
You may stop a vehicle without warrant to arrest a person if you have reasonable grounds to suspect that a person is
Unlawfully at large
Has committed an offence punishable by imprisonment
Section 10 search and surveillance act
Powers and duties after vehicle stopped
If you stop a vehicle under section 9 you may
Require any person in the vehicle to give particulars of you suspect they are unlawfully at large or committed an offence punishable by imprisonment
Search the vehicle for persons unlawfully at large
Search the vehicle for evidential material
Road blocks search and surveillance act section 30,31,32
Section 30 - establishing road block for purpose of arrest
Must be senior constable (holding or acting in position of sergeant) to authorise
If you have reasonable grounds to believe that in a vehicle a person has
Committed an offence punishable by imprisonment
Unlawfully at large
Vehicle will travel past the place where the road block is going to be
Section 31 - duration and record of warrantless road block authorisation
Valid for 24 hours
May be renewed by district court judge for a further period not exceeding 24 hours
Must keep a written record of
Location
Period and grounds on which authorisation was granted or renewed
Section 32 - powers under authorised road blocks implemented without warrant
Any constable may do the following things when road block is authorised
Establish road block
Stop vehicles
Require particulars
Search vehicle
Section 128 and 177 search and surveillance act
Section 128 - Duty to remain stopped
You may require the vehicle to remain stopped for as long as reasonably necessary to exercise any powers
Section 177 - power of arrest if they fail to comply with section 128
Types of personal searches
Rub down search
Strip search
Internal search
Section 85 search and surveillance act
Rub down search or arrested or detained persons
Can search arrested or detained persons to ensure they are not carrying anything that may
Harm any person
Facilitate their escape
Section 88 search and surveillance act
Warrantless search for evidential material
Can search arrested or detained persons if you believe they have on them anything that may be used to harm any person
Facilitate their escape
Is evidential material relating to the offence for which they were arrested for
Examples of when samples from a persons external body may be seized
A swab to remove blood (from victim of an assault on the arrested persons neck)
Fingernail scrapings (from arrested rape offender)
A swab of arrested persons skin (gun shot residue)
Penile swabs
Section 115 search and surveillance act
Limitations on exercising search powers
The search powers are subject to
Any condition imposed by an issuing officer when issuing a search warrant
Privilege and confidentiality provisions in the act
Section 113 search and surveillance act
Power of persons called to assist
Must (unless they are constable)
Accompany person when they first enter the place
Provide reasonable supervision of them
Section 116 search and surveillance act
Securing scene to be searched
If carrying out a search you may
Secure the place or vehicle
Exclude any person from the scene or area
Exceptions to section 131 search and surveillance act - identification and announcement of entry
No person is lawfully present
Compliance would endanger the safety of any person
Prejudice the successful exercise of the entry
Prejudice on going investigations
Section 112 search and surveillance act
Items of uncertain status
Can seize item if not certain if it can be seized and not reasonably practice to determine at search scene
Section 123 search and surveillance act
Seizure of items in plain view
Section 11 search and surveillance act
Searching people who are about to be locked up in custody
