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SGT CPK 2020 > Chapter 4: Search & Surveillance Act 2012 > Flashcards

Chapter 4: Search & Surveillance Act 2012 Flashcards

1
Q

Evidential Material

A

Evidential material, in relation to an offence or suspected offence, means evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence.

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2
Q

Reasonable grounds to believe

A

Having a sound basis for believing that a situation or circumstances actually exist eg. reasonable grounds to believe that the search will locate evidential material relating to that offence.

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3
Q

Reasonable grounds to suspect

A

Having a sound basis for suspecting that a situation or circumstance is likely to exist, eg. reasonable grounds to suspect that an offence has been committed.

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4
Q

Unlawfully at large

A
  • WTA
  • Corrections
  • Escaped prisoner
  • Escaped from lawful custody
  • Special/restricted patient
  • Patient who has not returned from leave
  • Young person subject to order who is abscounding
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5
Q

Lawfulness and reasonableness

A

All searches must be lawful & reasonable.

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6
Q

Search Hierarchy

A

Always consider a search warrant first.
If not practicable, consider using a warrantless search power.
Search by consent is last resort

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7
Q

Warrantless powers to search people

A
  • In custody/about to be locked up (S11)
  • found in public place for evidential material (S16)
  • Firearms (S18)
  • Drug offences (S21,22,23)
  • Knives/Offensive Weapons/Disabling Substances (S27)
  • after arrest or detention (S85 &88)
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8
Q

S7

A

Entry to arrest person unlawfully at large

Reasonable grounds to suspect person in unlawfully at large, and believe 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.

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9
Q

S8

A

Entry to avoid loss of offender or evidential material

Reasonable grounds to suspect person has committed an offence punishable by imprisonment & for which they may be arrested without warrant, AND BELIEVE that the person is in a place or vehicle, AND BELIEVE that if entry not effected immediately, either or both may occur:

  • person will leave place or vehicle to avoid arrest
  • evidential material will be CADD

You may enter place or vehicle AND search for & arrest person.

YOU MAY NOT SEARCH FOR EVIDENTIAL MATERIAL UNLESS AN ARREST IS MADE (search then under S83-88)

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10
Q

S14

A

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

Reasonable grounds to suspect in relation to a place or 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
  • risk to life or safety of any person that requires an emergency response.

You may enter the palce or vehicle without a 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
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11
Q

S15

A

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

Reasonable grounds to suspect an offence punishable by 14 yrs imprisonment or more has been, is being, or is about to be committed, AND

  • BELIEVE evidential material relating to offence is in a place, AND
  • if entry delayed in order to obtain a search warrant, the evidential ,material will be CADD
    YOU MAY enter and search place without a warrant.
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12
Q

S16

A

Searching people in public place for evidential material

Reasonable grounds to BELIEVE a person in public place is in possession of evidential material relating to offence 14 yrs +

YOU MAY search that person without a warrant.

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13
Q

S17

A

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

Reasonable grounds to BELIEVE evidential material relating to an offence 14 yrs + is in or on a vehicle in a public place

YOU MAY enter and search that vehicle without a warrant.

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14
Q

S18(3)

A

Arms in places or vehicles

Reasonable grounds to suspect that there are arms in any place or vehicle:

  • in respect of which a category 3 or 4 offence or an offence against the Arms Act 1983 has been, is being, or is about to be committed, OR
  • may be evidential material in relation to categroy 3/4 offence or an offence against the Arms Act 1983

YOU MAY without warrant

  • enter place/vehicle
  • search it
  • seiz and detain any arms/licence under the Arms Act 1983 found there.
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15
Q

Who can give approval for arms related searches of places and vehicles?

A

Sgt or above unless impracticable

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16
Q

S28

A

Searching vehicles for offensive weapons

If you have reasonable grounds to suspect that:

  • person travelling in vehicle (or who has alighted from it) is committing an offence in a public place against S202A(4)(a) CA1961, AND
  • vehicle contains knife/offensive weapon or disabling substance

YOU MAY without warrant:
- search the vehicle

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17
Q

Disabling substance

A

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.

18
Q

Offensive weapon

A

Any article made or altered to use for causing bodily injury, or intended for such use by the person who has it with them.

19
Q

S29

A

Warrantless search of vehicle for stolen property

Reasonable grounds to believe stolen property is in or on any vehicle, you may search vehicle without a warrant.

20
Q

S83

A

Entry and search of places after arrest

If you have arrested a person and have reasonable grounds to believe that:

  • evidential material relating to the offence is at a place. AND
  • if entry delayed to obtain a warrant - risk of CADD

YOU MAY
- enter the place to search for the evidential material relating to the offence without a warrant.

21
Q

S84

A

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 they were arrested is in a vehicle

YOU MAY
- enter and search that vehicle without a warrant.

22
Q

Can a person aged under 14 consent to a search of vehicle/place?

S95

A

No - unless found driving vehicle and no passenger over 14.

23
Q

Purposes for which consent search may be undertaken (S92):

A
  • prevent commission of an offence
  • protect life or property, or to prevent injury or harm
  • 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.
24
Q

Advice to be given before a consential search:

S93

A
  • determine that search s for a purpose listed in S92
  • advise person:

Reason for the search & that they may consent of refuse to consent to the search.

25
Q

Circumstances where search by consent is unlawful S94:

A
  • not for a purpose set out in S92
  • fail to give required advice set out in S93, or
  • yuo undertake a search relying on consent given by a person who does not have an authority to give that consent.
26
Q

Can an under 14 yr old consent to a search of their person or anything in their immediate possession or control?

A

Yes

27
Q

If a person consents to a search of themselves, you may extend the search to any item that:

A
  • they are wearing or carrying
  • is in that person’s physical possession or immediate control PROVIDED the person consents to these items being searched.
28
Q

S117 - Power to Secure Scenes

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…

YOU MAY

A
  • enter and secure
  • secure any items
  • direct any person to assist with entry and securing place/vehicle/thing

IF YOU BELIEVE CADD may occur before warrant issued.

Powers last for:

  • 6hrs, or
  • warrant executed, or
  • application for warrant refused
29
Q

S118 - Powers of detention incidental to searches of places and vehicles

A

If exercising a search power in relation to place or vehicle you may detain any person to determine if these is a connection between them and the object of the search if the person:

  • was there at the start of the search, or
  • arrives at the place or stops at, or enters, or tried to enter while search being carried out.

Can use reasonable force.
Can detail for any reasonable period but no longer than the duration of the search

30
Q

S119 - Powers to search persons at a place or vehicle

A
  • You can search any person found in or on the place/vehicle OR
  • who arrives OR
  • who stops at/enters/tries to enter

IF YOU HAVE REASONABLE GROUNDS TO BELIEVE

  • evidential material that is the object of the search is on that person, OR
  • SUSPECT person is in possession of a dangerous item that poses threat to safety AND YOU BELIEVE that immediate action is needed to address that threat.
31
Q

S120 - Powers of search when suspect pursued

If you intend to search a person or vehicle but they leave before you are able to start or complete the search YOU MAY

A
  • 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 until apprehended, AND
  • reasonable grounds to BELIEVE that relevant evidential material is still on the person or in the vehicle
32
Q

S123(3) - Seizure of Items in plain view

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

A
  • any search warrant obtained under the S&S Act or another enactment, or
  • any other search power exercisable by you under the S&S Act or another enactment
33
Q

S121 - Stopping vehicle with or without warrant to search:

A

You may stop a vehicle to conduct a search:

UNDER A POWER TO SEARCH
-without a warrant

IF YOU ARE SATISFIED THAT
- grounds exist to search the vehicle

OR

UNDER A POWER TO SEARCH
-with a warrant

IF YOU ARE SATISFIED THAT
- warrant has been issued & is in force

34
Q

S9 - Stopping vehicles without warrant to effect arrest

A

You may stop vehicle without warrant to arrest a person if you have reasonable grounds:

  • to suspect person is unlawfully at large or has committed an offence punishable by imprisonment, AND
  • believe the person is in or on the vehicle.
35
Q

Which power should be used for searching arrested or detained persons?

A
  • a rub down search S85-87, and

- a warrantless search under S88.

36
Q

What is the primary purpose of searching a person under S11?

A

Not to search for evidential material but to protect the detained person’s property and remove items that may be used to harm themselves or others.

37
Q

How many times can you be searched under S11 once arrested?

A
  • Can only be searched once under this section unless certain criteria apply S11(3).
  • should initially be searched/pat down under S85-88
38
Q

S88 - Examples of when samples from a person’s external body may be seized.

A
  • a swab of blood from the victim of an assault on the arrested person’s neck.
  • fingernail scrapings from fingers of arrested rape offender.
  • swab from arrested person’s skin for gunshot residue.
  • penile swabs
39
Q

R v Williams

lawfulness/unreasonableness re searches

A

The concepts of lawfulness and unreasonableness were distinct. Searches that are lawful may nevertheless be unreasonable taking into account the manner, time and place of the search.

40
Q

R v McRae

A

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

Vehicle can be searched under S28 SSA if there are reasonable grounds to suspect that a vehicle contains an offensive weapon and that person does not have a lawful authority or excuse for possessing the offensive weapon.

Inquiries as to the purpose of possessing the offensive weapon must be made prior to the search.

SGT CPK 2020 (14 decks)

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