Chpt 4 S&S Act 2012

Question 1

Key definitions

Answer 1

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

RGTB - situation or circumstance actually exists

RGTS - suspecting that situation or circumstance likely exists

Unlawfully at large - WTA
Unlawfully at large corrections or parole act
Prison breaker
Escape lawful custody
Special/restricted patient
Care recipient of special care recipient - escaped failed to return
YP absconding

Searches
Lawful and reasonable
Consider search warrant first, then warrantless search before consent
Record when warrantless power used and why
ID, provide to owner/occupier, reason for search and power exercised
Reasonable force
Search or seizure should be witnessed by another police employee
Seized property must be documented

Ensuring searches are lawful
Exercise warrantless power or
Execute a warrant power
Conduct search, examination or inspection with persons consent (can be withdrawn at anytime)

When statutory power exists must use that

Inevitable discovery - evidence obtained result of breach of nzbor would of been obtained if breached had not occurred fact it would of inevitably been discovered is a factor and taken into account whether admissible

Ensure searches are reasonable sect 21 BORA 1990
R v Jefferies 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 2

Warrantless power to search people

Answer 2

Sect 11 - in custody are/is about to be locked up
Sect 16 - found in public place for evidential material
Sect 18 - for arms
Sect 21, 22,23 - in relation to drug offences
Sect 27 - for knives, offensive weapons and disabling substances
Sect 85, 88 - after arrest or detention

Sect 110
Seizure and other powers incidental to powers of search - all of the powers to search places, vehicles and things associated power to seize, subject of search or lawfully seized, general powers

Question 3

Section 7

Entry and search to effect arrest

Answer 3

Person unlawfully at large
RGTS unlawfully at large and believe that person is in place/vehicle
May enter place/vehicle without warrant to search and arrest

Unlawfully at large - has an arrest warrant, has escaped prison or is absent without leave, has escaped lawful custody (police cells, car), special or restricted patient has escaped or failed to return, is a care or special care recipient (intellectual disability) has escaped or failed to return, YP subject of youth court supervision with residence, absconding from CYF custody

Question 4

Section 8

Entry to avoid loss of offender or evidential material

Answer 4

RGTS person committed offence and maybe arrested without warrant and believe that person is in place/vehicle
Believe of entry not immediate -person will leave place/vehicle to avoid arrest, evidential material maybe CADD
Enter place/vehicle without warrant and search and arrest person

You may not search for evidential material unless arrest is made and search incidental to that arrest is undertaken sect 83-88

Question 5

Emergency powers
Section 14
Entry to prevent offence or respond to risk to life or safety

Answer 5

RGTS in relation to place or vehicle
Offence being/about/likely be committed that would cause injury or serous loss/damage to property
Risk to life
Enter place/ vehicle without warrant and take action RGTB necessary to prevent offending from being committed or continuing, avert the emergency

Question 6

Entry and search for evidential material

Serious offences

Answer 6

Section 15
Entry and search of places to find and avoid loss of evidential material
RGTS offence 14yrs+ or more been, is about to be committed and believe that evidential material relating to offence in place and of entry delayed to obtain SW evidence will be CADD- may enter and search without warrant

Section 16
Searching people in public place for evidential material
RGTB person in public place is in possession of evidential material relating to offence 14yrs+ or more - may search that person without warrant

Section 17
Entry and search of vehicles in public place for evidential material
RGTB evidential material relating to offence 14yrs+ or more is in or on vehicle in public place - may enter and search vehicle without warrant

If vehicle parked in place other than public place use section 15 to enter and search vehicle

Question 7

Warrantless searches associated with arms

Answer 7

Arms in places or vehicles
Section 18 (3)
RGTS that arms in any place or vehicle
Cat 3 or 4 offence or offence against arms act has been is about to be committed or there maybe evidential material in relation to cat 3 or 4 offence or offence against arms act
May without warrant enter place or vehicle, search it, seize, detain any arms or licence under arms act

Obtain approval
From sgt or above before exercising warrantless power in relation to arms (unless impracticable)

Question 8

Warrantless searches for offensive weapons

Answer 8

Searching vehicles for offensive weapons
Section 28
RGTS person traveling in vehicle committed offence in public place against 202A(4)(a) Crimes act and vehicle contains knife, offensive weapon or disabling substance you may without warrant search the vehicle.

Definitions :
Disabling substance - means any anaesthetising or other substance produced to use for disabling a person or intended to use

Offensive weapon - any article made or altered to use for causing bodily injury or intended to use

Question 9

Searching vehicles for stolen property

Answer 9

Warrantless search of vehicle for stolen property
Section 29

Search vehicle in public place if vehicle of private property seek SW

Question 10

Entry and search of places and vehicles incidental to arrest

Answer 10

Entry and search of places after arrest
Section 83

RGTB evidential material relating to offence is at place and entry delayed to obtain warrant will be CADD- may enter place search for evidential material relating to offence whether or not arrested person present - without warrant

Entry and search of vehicles after arrest
Section 84
RGTB evidential material relating to offence for which they were arrested is in vehicle - enter and search vehicle without warrant

Question 11

Consent searches

Answer 11

Purposes for which consent search maybe undertaken
Section 92
Ask person to consent to search of place, vehicle, thing in their control for one of these purposes:
To prevent commission of offence
To protect life or property or to prevent injury or harm
To investigate whether offence committed
Any purpose in respect of which you could exercise a power of search conferred by enactment if you held particular belief or suspicion specified enactment

Advice that must be given before searching
Section 93
Must determine that the search is for a purpose listed in section 92
Advise person reason and that consent can be refused/revoked at anytime

Must stop search immediately if revokes consent unless warrantless search power can be involved

Circumstances where search by consent unlawful
Section 94
It is not for purpose in sect 92
You fail to give required advice sect 93
You u de take search relying on consent given by person who does not have authority to give consent

Restrictions on persons under 14yrs to consent
Section 95
Person under 14yrs cannot consent to search of place, vehicle or thing - exception when found driving vehicle and no person over 14 in vehicle
Can consent to search of themselves

Exceptions to consent rules
Section 96
Consent search rules do not:
Apply to search conducted as a condition of entry to public or private place (event) or in accordance with a power conferred by an enactment or affect the rule of law relating to implied licence to entry property

Question 12

Powers incidental to search

Every search power with or without warrant authorised you to:

Answer 12

Enter and search
Request assistance 
Use reasonable force in respect of property only
Seize
Bring and use equipment
Bring and use dog
Copy documents
Access computer system or other data storage device
Copy intangible material
Take photos and recordings

Limitations on exercising search powers
Section 115
Powers above subject to and conditions imposed by issuing officer when issuing SW, privilege and confidentially provisions in the act
Subject to reasonableness under section 21 nzbor

Using assistants during searches
Section 113
You must unless they are another constable
Accompany them when first enter place, vehicle or thing to be searched and provide reasonable supervision of them
Powers of constables who assist - may exercise power ordinarily exercisable by them without direction supervision

Special powers when an application for SW is pending - power to secure scenes
Section 117
Place, vehicle or thing - application made but not yet granted or refused you may
At anytime reasonable enter and secure place, vehicle or thing and secure any items found there and direct any person to assist if you believe that evidential material maybe CADD or removed before decision made
Can only do the above up to 6hrs, warrant is executed or application refused

Powers of detention incidental to searches of places and vehicles
Section 118
If exercising search power in relation to place, vehicle or thing you or person assisting may detain person to determine whether there is connection between them and object of search if person was there at start of search, arrives, stops, enters
Reasonable force
Reasonable period but no longer than duration of search
Starts when you direct person to remain and ends when you tell them they are free to go

Powers to search persons at a place or vehicle
Section 119
Search any person found at place or in/on vehicle or arrives, stops, enters
If RGTB evidential material that object of search is on that person or suspect the person in possession of dangerous item threat to safety

Powers of search when suspect pursued
Section 120
May apprehend person, enter any place if you have been freshly pursuing and RGTB evidential material on that person/vehicle

Question 13

Entry, announcement and identification requirements

Answer 13

Powers of entry
Section 110
Every search power authorises person exercising it to enter and search the place, vehicle or other thing they are authorised to enter and search and any items found in that place, vehicle or thing at any reasonable time

Search warrants to enter and search vehicles
Section 127
If SW authorises search and entry of vehicle you may enter any place RGTB vehicle is to locate & search

Identification and announcement requirements on entry
Section 131(1)
If exercise search power must before initial entry announce intention to enter and search place, vehicle or thing under statutory power
Identify yourself by name or qid
If not in uniform produce ID
Copy of SW

Warrantless search or securing scene
Section 117
If requested by person affected state Act and reason

Exceptions to announcing entry and giving reasons for the search
Section 131(2)
RGTB no person present
Endanger safety of any person
Prejudice successful exercise of entry
Prejudice ongoing investigations 

Securing the scene to be searched
Section 116
If carrying out search may for reasonable duration
Secure place, vehicle or other thing, area within scene, anything found within scene
Exclude person if obstruct/hinder
If requested
ID, name of Act, reason

Unannounced forced entry
Section 131(2)
Saving person from death or injury
Might endanger police
Prevent destruction of evidence
Hot pursuit of offender

Question 14

What can be searched and seized

Answer 14

Searching people at scene
Section 119
If searching place or vehicle may search person found there, arrives, stops or enters if RGTB evidential material that is object of search is on person, person in possession of dangerous item poses threat to safety

What can you seize during the search
Section 110(d)
Every search power authorises you to seize anything that is subject of search that maybe lawfully seized.

If find evidence of offence other than one specified in warrant or covered in warrantless power you cannot seize unless you obtain another warrant or you exercise plain view seizure under sect 123

Items of uncertain status
Section 112
May remove any item for examination

Seizure of items in plain view
Section 123(3)
RGTB you could of seized items under
SW or search power - S&S

Question 15

Notice and inventory requirements after search or seizure

Answer 15

Form of written notice when exercising a search power
Section 131(1)
Occupier or person in charge of vehicle or thing is lawfully present
Give copy of warrant & attach privilege info contained in ‘notice to occupier, or person in charge of vehicle or other thing present during search’ if warrantless search copy of ‘notice to person present during warrantless search’ Pol1275
Exceptions:
No one home, endanger safety, prejudice to successful exercise of entry or ongoing investigations

Searches conducted when occupier or person in charge of vehicle or thing is not present
Section 131(4)
Leave copy of above in prominent place

Searches resulting in things seized
Section 133
At time thing seized or as soon as practicable after seizure but no later than 7 days - provide occupier inventory of items seized pol268, notice and copy of authority

Limits on who can be treated as occupiers or people in charge 
Section 131(6)
No person under 14yrs unless found driving and no one else in car you RGTB is not the occupier

Question 16

Searching people

Answer 16

Maybe necessary to:
Locate and preserve evidence
Remove weapons or means of escape
Remove and care for prisoners property
Locate and remove articles or substances that could impact safety of prisoner or others
Ensure safety (self harm)

Types of personal searches:
Rub down
Strip
Internal

Searching people can include anything they are wearing or carrying, in physical possession or immediate control could include place or vehicle

Question 17

Rules and obligations when searching people

Answer 17

When exercising a power to search a person you must ID yourself 
State name of Act and reasons 
Produce evidence of ID
Copy of inventory 
Section 125(1)&(4)

Question 18

Rub down searches

Answer 18

What is a run down search
Section 85(2)
Clothed person pat over clothing, pockets, visual inspection- open mouth, display palms and feet, lift or rub hair

Rundown search may include visual examination
Section 87

Item carried or in possession
Outer clothing removed, head covering, gloves etc maybe removed for search
Section 86

Question 19

Section 122

Moving vehicle for purpose of search and safe keeping

Answer 19

May move to another place if find or stop vehicle and you have lawful authority to search vehicle but impracticable at that place or RGTB it is necessary to
move for safekeeping

Question 20

Section 121

Stopping vehicles with or without warrant to search

Answer 20

Under a power to search without warrant if you are satisfied grounds exist to search that vehicle
With a warrant - warrant issued and in force

Question 20

Section 128

Duty to remain stopped

Answer 20

Require vehicle to remain stopped as long as necessary for the exercise of any powers in respect of:
Vehicle
Occupants of vehicle

Question 20

Section 129

Duty to provide information to vehicles driver

Answer 20

Immediately after stopping the vehicle you must:
Identify yourself to driver
State name of enactment and reason for search unless impracticable
If not in uniform produce ID

Question 21

Section 9

Stopping vehicles without warrant to effect arrest

Answer 21

May stop vehicle without warrant to arrest if RGTS
Person unlawfully at large
Has committed offence punishable by imprisonment
Believe person in or on vehicle

Unlawfully at large includes:
WTA ( fines warrant not included)
Anyone whose escaped lawful custody
Special restricted mental health patient who is absent without leave

Question 22

Section 10

Powers and duties after vehicle stopped

Answer 22

If stop vehicle under section 9 you may:
(WTA, unlawfully at large, escaped, suspect offence)
Require details
Search vehicle to locate person
Search vehicle to locate evidential material in relation to offence if person arrested or seen fleeing before they can be arrested
Before searching must tell driver object of proposed search if they are not the suspect

Question 23

Section 177

Power of arrest

Answer 23

If you are exercising a power to stop and search a vehicle you may arrest the person if they fail to stop when required or to comply with a requirement under section 128 to remain stopped

Question 24

Section 30

Obtaining authorisation for a warrantless road block

Answer 24

Snr constable, sgt or above
May authorise establishment of road block orally or in writing if you have RGTB
That in or on vehicle there is person who you have RGTS
Has committed offence or
Is unlawfully at large and
Suspect that vehicle will travel past proposed road block

Must be satisfied that all safety of road users met

Question 25

Section 31

Duration and record of warrantless road block authorisation

Answer 25

An authorisation to establish a road block:
Is valid for initial period not exceeding 24hrs specified by person giving the authorisation
Maybe renewed from time to time by DCJ for a single further period not exceeding 24hrs in writing by judge

If you authorise road block you must keep written record of:
Location
Period and grounds granted

Question 26

Section 32

Powers under authorised road blocks implemented without warrant

Answer 26

Any constable may do any of these things when road block is authorised

Establish road block at place specified and authorised
Stop vehicles on vicinity of road block
Require particulars if suspect offence
Search vehicle for purpose of locating person

Question 27

Community impact assessment for establishing road blocks

Answer 27

CIA must be undertaken of the adverse impact of establishing road blocks:
Where vulnerable people are present
On the community and interest groups

Part of risk assessment
CIA can be done mentally if impracticable
Must record later in notebook or on CIA form

Question 28

Warrantless search powers
Section 11
Searching people who are or are to be locked up in police custody

Answer 28

At police station, other premises, police vehicle
Is or is to be locked up

Section 11(4)
Take money or other property found during search

Section 11(2)
This power maybe exercised before person locked up

Locked up - in lawful custody being placed behind closed or locked door that prevents them from leaving

Searching people after they have been locked up
Section 11(3)
After locked up can only be searched if
They were not searched before being locked up
Since being searched before being locked up they have been in close proximity to person not locked up or another person eligible to be searched after being locked up but wasn’t
RGTB person in possession of anything that may harm them or others

Question 29

Section 16

Warrantless searches of people in public places for evidential material

Answer 29

RGTB in possession of evidential material relating to offence 14yrs+

Question 30

Section 18 (1)&(2)
Warrantless searches of people in possession of arms

Answer 30

Approval from sgt above before using this power
RGTS person carrying, in possession or under their control, person in breach of arms act, physical or mental condition, incapable of having proper control or may kill or under DVA PO
You may without warrant
Search person, search anything in their possession or under their control includes vehicle
Seize and detain

Question 31

Section 21,22 and 23

In relation to drug offences

Answer 31

Warrantless search power

To search a person

Question 32

Section 27

Warrantless searches of people for offensive weapons

Answer 32

RGTS committing offence against 202A(4)(a) Crimes act

Question 33

Section 85
Rub down searches of arrested or detained people
Section 88
Warrantless searches for evidential material

Answer 33

Section 85-87
Rub down searches of arrested or detained people

Any person arrested or detained under any enactment, to ensure not carrying anything that may be used to:
harm person or
facilitate escape
This power may be used on every person arrested or detained

Section 88
Warrantless searches for evidential material
If arrested or detained under stat power RGTB that there is a thing on or carried by person that:
may harm any person (including them)
facilitate escape or
is evidential material relating to offence for which person arrested.

Examples of when samples from a persons external body may be seized (arrested or detained)
Section 88
Swab to remove blood from neck - assault
Fingernail scrapings - rape link DNA to vict
Swab arrested person skin for gunshot residue
Penile swabs

Searches must be lawful, reasonable and approved
Under sect 88 for purposes of seizing samples
Sgt or above

Question 34

Quick reference

Warrantless use of powers notifications and reporting

Answer 34

Obtain prior approval from sergeant or above where applicable (sect 18 arms)
Provide written notice to person present during execution of warrantless power and inventory of items seized. If no one present complete form
and leave in prominent place
Make a record of your decision to use warrantless power and reasons (RGTS/ RGTB) in notebook
Record use of powers in search and surveillance system for warrantless notifications
Where applicable complete notification using ‘create notification’ feature on bully board (notify relevant groups, drugs, firearms, children)