CIB Module - SASA2012 Flashcards
What is the purpose of the Search and Surveillance Act 2012?
Section 5:
The purpose of the Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values by:
- Modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies,
- Providing rules that recognise the importance of the rights and entitlements affirmed in other enactments,
- Ensuring investigative tools are effective and adequate for law enforcement needs.
How will Police comply with the Act?
To meet its objectives and obligations when carrying out entries, searches, inspections, productions, examinations, seizures, road blocks and stopping vehicles, Police will:
- Ensure it has a lawful authority to conduct such activities and exercise any other incidental power in relation to those activities, including the use of force,
- Conduct risk assessments when planning the exercise of those powers and take action to mitigate risks to protect the safety of the public and employees carrying out the Act’s powers,
- Only seize what Police are lawfully entitled to seize,
- Provide appropriate announcements and identification in the exercise of those powers,
- Satisfy requirements detailed in the Act (e.g. notice and inventory requirements after search or seizure).
Define: Reasonable grounds to suspect.
Reasonable grounds to suspect (RGTS) means having a sound basis for suspecting that a situation or circumstance exists.
Example:
You enter a house or vehicle because you suspect an offence has been, is being, or is about to be committed there.
Define: Reasonable grounds to believe.
Reasonable Grounds to Believe (RGTB) means having a sound basis for believing that a situation or circumstance exists.
Example:
You enter and search a house or vehicle, or search a person because you believe that a search will find the evidential material you are looking for.
What should you note with regard to RGTS and RGTB?
When you have formed a belief or suspicion you must be able to clearly describe your reasons – your reasonable grounds – for holding the belief or suspicion.
You must:
- Record your reasonable grounds for using a search power in your notebook. This is your decision log.
Be aware that you may be required to:
- Report on your decision to use a power and your grounds for using it,
- Justify your use of a power in court or in other formal proceedings.
What is a lawful search?
A lawful search is a search that is conducted:
- With a search warrant, or,
- Under a warrantless search power, or,
- With the person’s consent.
What is a reasonable search?
A reasonable search is a search that complies with Section 21 of the New Zealand Bill of Rights Act.
It considers factors such as
- The nature of the search,
- How intrusive the search is,
- Where and when the search takes place.
What should you consider before conducting a search?
Before considering any search, you must think about whether applying for a search warrant is practicable in the circumstances.
If it is at all practicable to do so then you should apply for a search warrant even if a warrantless power is available.
A decision that applying for a search warrant is not practicable must be based on RGTB that it is not practicable to apply for a search warrant in the circumstances.
What factors influence whether it is practicable to obtain a search warrant?
When you are thinking about what is practicable consider questions such as:
- Is there time to gain approval and apply for a search warrant,
- Can the scene be secured (under Section 117),
- Are reasonable resources (including number of staff) available to minimise risk and ensure safety,
- Is the evidential material at risk,
- Location of the search and who may be present.
If it is not practicable in the circumstances to apply for a search warrant, what two options may be available?
- Search using a warrantless power – if a warrantless power is available to you, then you have a power of search without a warrant.
- Search by consent – if you do not have grounds to apply for a search warrant or to use a warrantless power, then you may request a search by consent. A consent search is not the most desirable action as there are additional rules that apply to consent searches and these rules must be followed if the search is to be lawful.
If you do not have a search warrant, a warrantless power of search, or consent from the person, can you conduct a search?
No.
What are three advantages of using a search warrant?
- Ensures judicial oversight,
- Provides greater protection for Police and the public,
- Requires recording and reporting of results.
What Sections of the Act cover consent searches?
Sections 91-96.
What must you determine before conducting a consent search?
Section 92:
Before conducting a search by consent, you must determine that the search is for one of the following reasons:
- To prevent the commission of an offence,
- To investigate whether an offence has been committed,
- To protect life or property,
- To prevent injury or harm.
One or more of these situations must exist to justify any consent search. You cannot randomly conduct a consent search and must not use a consent search to go on a ‘fishing expedition’ to see what might be located.
What advice must you give to a person before conducting a consent search?
Section 93:
Before conducting a search by consent, you must advise the person from whom consent is sought:
- Of the reason for the proposed search, and,
- They may consent or refuse to consent to the search.
Note: a person who consents to a search of themselves, place, vehicle or thing in their control may withdraw their consent at any time.
Who is unable to consent to a search, and what is an exception to this rule?
A person under 14 years old is unable to consent to the search of a place, vehicle, or other thing.
The exception is if they are found driving with no passenger of or over 14 years of age with authority to consent to the vehicle’s search.
Do you have to report a consent search?
No.
When is a consent search unlawful?
Section 94:
A search by consent is unlawful if:
- It is not for a purpose set out in section 92, or,
- The enforcement officer fails to comply with section 93(a), (b), or (c), or,
- The search is undertaken in reliance on a consent given by a person who does not have authority to give that consent.
Define: Evidential material.
Evidential material, in relation to an offence or a suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.
Define: Tangible.
According to the Oxford Dictionary, tangible means something that may be touched.
Define: Intangible.
According to the Oxford Dictionary, intangible means ‘unable to be touched; not having physical presence’.
What are two examples of an intangible thing?
Section 97:
- An email address, or,
- Access information to an Internet data storage facility.
What does CADD stand for?
Concealed
Altered
Damaged
Destroyed
Give an example of how evidential material might be concealed.
By burying or hiding items in another place or removing items.
Give an example of how evidential material might be altered.
By changing or removing serial numbers from stolen property in an attempt to disguise it.
Give an example of how evidential material might be damaged.
By cutting out the firewall of a stolen car to remove an identifying feature.
Give an example of how evidential material might be destroyed.
By consuming food, alcohol or drugs, or by burning clothing.
What are obligations under SASA2012, and what section of the Act contains the obligations?
In the context of the Search and Surveillance Act, obligations are actions that must be carried out when certain search powers are used.
When searching a place, vehicle, or other thing, you must comply with the obligations set out under Section 131.
What are your obligations when exercising a search power? (Other than a remote access search.)
RAIN + BOR
Your obligations cover identification, intention, reason, and notice requirements whereby before initial entry you must:
- Identify yourself by name or by unique identifier (QID),
- Announce your intention to enter and search,
- State the name of the Act,
- Give the reason for the search,
- Give notice by providing a copy of the search warrant,
- Remember that when you have detained a person for the purpose of a search you must caution them (Bill of Rights).
What are your additional obligations when using a warrantless search power?
If you are using a warrantless search power you must state the reason for your search.
You must also:
- Provide a copy of the search warrant or a warrantless search notice to occupier (POL 1275) and provide an inventory of items seized.
- Report your use of certain powers – (section 169)
- Consider privilege – (sections 136 – 147)
What does Section 131 state with regard to giving notice?
Section 131 states that before or on initial entry into or onto the place, vehicle or other thing to be searched, you must give ‘notice’ to the occupier or person in charge. Giving notice is more than just telling or explaining to the person what you are about to do and why. It includes giving written notice.
If executing a search warrant:
- Provide a copy of the search warrant.
If using a warrantless power:
- State the name of the enactment under which the search is taking place and the reason for the search under that enactment (unless it is impracticable to do so in the circumstances). To comply with this obligation you can use a POL1275 form. (Search notice to occupier.)
What exceptions exist to identification, intention, and notice requirements?
You are not required to comply with identification, intention and notice requirements on initial entry if you have RGTB that no one is present.
Also, you do not have to comply with the requirements on initial entry if you have RGTB this would:
- Endanger any person’s safety,
- Prejudice the successful use of the entry and search power,
- Prejudice on-going investigations
What does the Act state about use of force if occupants are not compliant at entry?
When you are executing a search warrant or a warrantless power of search of a place, vehicle, or other thing, you may use reasonable force to enter if the person refuses entry or does not allow entry within a reasonable time following a request.
What does the Act state about use of force if there are no occupants present?
You may use reasonable force to enter the place, vehicle or other thing to be searched if you have reasonable grounds to believe that no one is lawfully present.
What are the additional powers for searching places, vehicles, and other things as listed in Section 110?
Section 110 authorises you to:
- Enter and search the place, vehicle or other thing, that you are authorised to enter and search,
- Search any item or items found in that place, vehicle or thing (if reasonable),
- Use reasonable force in respect of any property for the purpose of carrying out the search and lawful seizure,
- Seize anything that is the subject of the search or anything else that may be lawfully seized,
- Request assistance with entry and search,
- Bring and use any equipment found on the place, vehicle or other thing,
- Bring and use a trained law enforcement dog and its handler,
- Copy any document, or part of a document, that may be lawfully seized,
- Access a computer system or other data storage device,
- Copy intangible material e.g. computer data,
- Take photographs, sound and video recordings and drawings.
What power is available to you if a person impedes your search, or if you believe they will obstruct or hinder your search?
If your search is impeded by any person or if you have RGTB that any person would obstruct or hinder your ability to search, then you could use Section 116 to:
- Exclude that person from the place, vehicle, or other thing being searched, or any area in or on the place or vehicle,
- Give any reasonable direction to that person.
What does Section 116 generally allow you to do ensure a search is secure?
You can secure a place, vehicle or other thing to be searched and exclude any person from there.
What does Section 118 allow you to do with regard to people present during a search of a place or vehicle?
You can detain people when searching places and vehicles for the purposes of determining whether there is any connection between a person at the place or in or on the vehicle and the object of the search.
What does Section 119 allow you to do with regard to locating evidential material or dangerous items on people present during a search of a place or vehicle?
- You can search people found when searching places and vehicles if you have RGTB that evidential material that is the object of the search is on that person, or,
- If you have RGTS 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.
What does Section 120 allow you to do in relation to fresh pursuits?
If you are in fresh pursuit, and with RGTB that relevant evidential material is still on the person, you have the power to enter any place to apprehend the person and search the person or vehicle.
What are your powers under Section 125 in relation to clothing and items worn or carried by a person being searched?
- You can search any item that the person is wearing, carrying, has in their physical possession or immediate control (section 125(1)(i)).
- You can then seize any item that the person is wearing, carrying or is in their immediate possession if that is the item you are searching for (section 125(1)(j)).
- You may also seize any item that may be lawfully seized even if it was not the subject of your search. (section 125(1)(j)).
Any search you undertake must be conducted with decency and sensitivity. It must also be conducted in a manner that affords to the person being searched the degree of privacy and dignity that is consistent with achieving the purpose of the search.
What are your powers if a person, who is detained for a search of a place or vehicle, tries to leave?
If the person who is detained for the search tries to leave the place or vehicle you can use reasonable force to detain the person to be searched (section 118(4)).
What are your powers if a person arrives at a search of a place or vehicle?
If someone else arrives at the place or vehicle and starts talking to the person you have detained under section 118 depending on the circumstances you may:
- Exclude that person from the search scene if you have RGTB the person will obstruct or hinder your powers (section 116(1)(b)).
- Detain that person to determine if there is any connection between them and the object of your search (section 118(1)).
- Search that person if you have RGTB that they may have evidential material on them (section 119(1)).
- Search that person if you have RGTS that they may have a dangerous item that poses a threat to safety and you believe you need to act immediately to address that threat (section 119(2)(a) and (b)).
What is privilege?
Privilege allows the holders of particular information to refuse to disclose this information.
This information is recognised as ‘privileged’ under the Search and Surveillance Act.
When does privilege not apply?
No privilege applies if the information is made, received, compiled or prepared for a dishonest purpose or to enable or aid any person to commit an offence.
What are some examples of privileged material?
Recognised privileged material includes material gained through communication with:
- Legal advisers,
- Ministers of religion,
- Medical practitioners,
- Clinical psychologists,
- Informers (informants),
- Journalists.
What are the set procedures when a search involves privileged material?
There are set procedures when a search involves privileged material held by a specified person.
You must:
- Ensure that the person or their representative is present when the search is undertaken.
- Give the person a reasonable opportunity to claim privilege.
As soon as practicable after being given the opportunity that person must provide you with a list of the things (such as documents) which they claim are privileged.
You must complete a POL268 listing all documents seized and show this to the person present and invite them to check the accuracy of the inventory. You must leave a copy with them.
Be aware that the person may make a copy of any document before you seize it, and they may object to the seizure of any document.
If you are searching (with or without a search warrant) and have RGTB that anything discovered during the search may be privileged, then you must provide the person an opportunity to claim privilege.
If you receive or are expecting to receive a claim of privilege, secure the thing subject to privilege but do not continue to search or examine it. You should not undertake any other investigations in reliance on it unless no claim of privilege is made, or a claim is withdrawn, or the search is in accordance with the directions of the court determining the claim of privilege.
What are the seven key steps in the search warrant process?
- Gain prior approval,
- Gain online approval,
- Gain Issuing Officer authorisation,
- Plan and brief search warrant execution,
- Execute search warrant,
- Report outcomes,
- File investigation records.
What should you consider when determining whether it is practicable to apply for a search warrant?
When considering whether applying for a search warrant is practicable, remember that in certain circumstances, with supervisor approval, you can:
- Apply for a search warrant orally,
- Apply for a search warrant without approaching an issuing officer in person (by using the phone),
- Secure a scene while you apply for a search warrant for a maximum period of 6 hours (section 117).
What key steps should you take BEFORE commencing a search warrant application?
Before commencing to make an application for a search warrant, you must:
- Be sure that there are RGTS that an offence punishable by imprisonment has been, will be, is being, or is about to be committed, and,
- Be sure that there are RGTB that the search will find evidential material in respect of the offence in the place, vehicle, other thing or facility, and,
- Ensure you have checked the target/s history in NIA for other search warrant applications / outcomes, and,
- Ensure you have assessed the risks associated with executing the search warrant, and,
- Ensure you have obtained initial approval from a supervisor at or above the rank of sergeant to proceed with the on-line application.
What must you do with regard to risk, prior to applying for and executing a search warrant?
Any search is inherently risky. These risks must be:
- Identified,
- Assessed,
- Considered in planning how you execute the search warrant.
The risks must be assessed before the application is approved and again before a search warrant is executed.
A Planned Action Risk Assessment (PARA) and CARD prompt must be completed and TENR applied.
What does Section 117 allow you to do with regard to a place, vehicle, or other thing, when a search warrant is pending?
If a search warrant application is about to be made or has been made and you are waiting to hear if it has been authorised, and you have RGTB that evidential material may be CADD or removed before the search warrant can be issued, you may:
- Enter and secure a place, vehicle or other thing, and,
- Secure any item found there, and,
- Direct any person to assist with entry and securing the place or vehicle or securing items in it.
How could the power under Section 117 be used if you arrive at an address and realise the address given on the search warrant is incorrect?
Another situation where this special power could be used is if you arrive at the target address for the search warrant and realise that the address is incorrect, such as a flat or unit number. You could then enter and secure the address until the search warrant has been amended.
Does Section 117 allow you to search a place, vehicle, or other thing?
Remember that section 117 authorises the securing of the address until a search warrant is obtained.
It is not a search power.
What is the time limitation for exercising a power under Section 117?
The powers conferred by section 117(1) may be exercised until the first of the following occurs:
- The expiry of 6 hours from when the power is first exercised,
- The warrant is available for execution at that place or vehicle or in respect of that other thing,
- The application for a search warrant is refused.
Who may issue a search warrant?
Issuing Officers are the only people who may issue a search warrant.
An Issuing Officer may be a:
- District Court Judge,
- High Court Judge,
- Or any person authorised by the Attorney General such as a Justice of the Peace, Community Magistrate, Registrar, or Deputy Registrar.
What conditions must be met for an issuing officer to authorise a search warrant?
An Issuing Officer may authorise a search warrant for a place, vehicle, thing or facility, if they are satisfied that the search warrant application clearly shows the:
- RGTS an offence punishable by imprisonment has been, will be or is about to be committed, and,
- RGTB that the search will find evidential material in respect of the offence in the place, vehicle or other thing.
The Issuing Officer must be personally satisfied that these two conditions have been met before authorising your application.
What restrictions may an issuing officer place on a search warrant?
An Issuing Officer may put restrictions on a search warrant, including:
- Restricting the time when the search warrant can reasonably be executed,
- Requiring the occupier or person in charge of a place to provide reasonable assistance to the officer executing the search warrant,
- Requiring a report on the search warrant within a specified time.
What should you do if an issuing officer does not approve the search warrant application?
When the Issuing Officer does not sign the search warrant application you should:
- Record the Issuing Officers reasons for refusing to sign,
- Consider the issues raised and if possible re-draft the application, ensuring you have addressed these issues,
- Re-submit the application to the same Issuing Officer.
What should you do if the issues with your search warrant application cannot be addressed?
If the issues cannot be addressed:
- Make further enquiries to support (or otherwise) the application,
- Consider whether to continue your investigation without conducting a search,
- If the reasons for not signing the search warrant do not seem justified, submit a report to Legal Services for direction.
Who may execute a search warrant?
The person to whom it is directed or any constable.
How long is a search warrant valid?
- No more than 14 days from the date of issue, as specified by the Issuing Officer, or,
- No more than 30 days from the date of issue, as specified by the Issuing Officer, if you have justified why this is necessary and the Issuing Officer is satisfied.
When can a search warrant be executed?
- At any time that is reasonable under the circumstances, or,
- At a restricted time required by the Issuing Officer as a condition of execution.
When is a search warrant considered executed?
When you (or anyone assisting you):
- Have seized the evidential material specified in the search warrant, or,
- Leave the place, vehicle or other thing to be searched and do not return within 4 hours.
How often can a search warrant be executed?
- Once, unless,
- More than one execution is applied for, justified and authorised in the search warrant. You must detail the reason for the multiple entries.
What are your on-going responsibilities with regard to risk when preparing a search warrant execution?
Risk assessment must be on-going and in preparing a search warrant execution plan you must:
- Review and re-assess the identified risks,
- Work with others to identify and consider any further risks,
- Plan how to manage and minimise any identified risks,
- Determine how risk management will be communicated in your search warrant briefing.
When you execute a search warrant you are obliged to provide a copy of the search warrant and an inventory of any items that are seized to the occupier (section 131).
This obligation can be postponed for certain reasons.
What are the reasons, and what is the correct process to follow?
If providing a copy of the search warrant or inventory would:
- Endanger the safety of any person, or,
- Prejudice on-going investigations,
You may apply to a judge to postpone your obligation to provide a copy of the search warrant.
An application to postpone is made under Section 134 of the Act and should be presented to the judge:
- At the time of the search warrant application, or,
- Before 7 days has passed after the search warrant execution.
A Judge can also postpone these obligations for a period not exceeding 12 months. This would apply to a long term investigation.
What are three reasons for which you might need to use force when executing a search warrant?
When executing a search warrant you may be required to use reasonable force to:
- Enter the place, vehicle or other thing (section 131),
- Search (on property only) and seize (section 110),
- Carry out a search of a person (section 125).
What should a GSMEAC briefing cover?
Ground
- Location to be searched
- Address
- Neighbours
Situation
- Reason for seeking the search warrant
- Background on any suspect(s)
Mission
- Address
- Suspect(s)
- Specific evidential material sought
Execution
- Timings
- Method of entry
- Roles – O/C Scene, O/C Exhibits etc
- Responsibilities
- Obligations on entry
- Managing suspects
- Searching for evidential material
- Recording evidential material
- Assisting vulnerable people
- Sequence of events
- Managing risks and ensuring safety
Administration
- Travel to and from the place to be searched under warrant
- Timing of the search warrant execution
- Recording of evidential material seized
Communication
- Cell-phone numbers and radio channels
- Before executing the search warrant
- During execution of the search warrant
- Debrief.
What should the person in charge of a search warrant briefing do?
The person in charge of the search warrant briefing should:
- Ensure all required staff are present,
- Reinforce verbal information given with visual prompts,
- Use maps, charts, diagrams, photographs,
- Provide copies of all important documents,
- Ensure all staff present are clear about their roles and responsibilities,
- Identify and advise staff of what they can record in their notebooks during the briefing as all entries may be discloseable,
- Clearly identify all risks and how to mitigate them,
- Identify any issues relating to sensitive or source (CHIS) related information.
What are your statutory obligations BEFORE you enter a place or vehicle to execute a search warrant?
Before or when you enter a place or vehicle to execute a search warrant you must:
- Identify yourself by name or unique identifier (eg: QID),
- Provide evidence of identity if not in uniform,
- State the name of the Act and reason for your search,
- Announce your intention to enter and search,
- Provide a copy of the search warrant,
- Where occupants are detained for the purpose of search you must advise them of the caution (Bill of Rights).
What can you do if you believe the occupants of a place or vehicle will alert others when they see the list of evidential material sought in the warrant?
If you are concerned that once the occupants of the place to be searched see the list of evidential material sought attached to your search warrant they will alert others to your investigation you may delay complying with the section 131 announcement obligations at the time of entry.
What can you do with regard to notice obligations if you believe no one is at the address being searched?
If you have RGTB that no one is at the address to be searched you do not have to comply with the section 131 announcement obligations on entry.
You must leave a copy of the search warrant or a POL 1275 search notice to occupier, and an inventory of any material seized (POL268).
If not reasonably practicable, then this action must be completed within 7 days of the search warrant being executed.
What does Section 19 allow you to do in relation to search warrants for MODA75 offences?
When you are executing a search warrant for drugs (where the offence specified in the application was an offence against the Misuse of Drugs Act 1975) you may search any person found in the place or vehicle you are searching.
What does Section 121 allow you to do in relation to stopping vehicles?
Section 121 provides the power to stop a vehicle if you intend to search it.
You may use section 121 to stop a vehicle if you have authority to search the vehicle by:
- Executing a search warrant, or,
- Using a warrantless power.
What does Section 127 allow you to do in relation to search warrants targeting vehicles?
Section 127 allows you to enter any place to locate the vehicle to execute the search warrant if you have RGTB that the vehicle is there.
You are not required to specify a place for the vehicle to be located in the search warrant application. Your search warrant target is the vehicle.
However, you must comply with the section 131 obligations when entering the place.
What seizure powers exist for dealing with other items located during searches?
The Search and Surveillance Act provides powers for dealing with other items that you may find in the lawful search of a person, place or vehicle or if you are lawfully in any place or vehicle:
- Removal of items of uncertain status in certain circumstances (section 112),
- Seizure of items in plain view (section 123).
What does Section 112 allow you to do in relation to items found during searches?
If you are carrying out a lawful search and it is not reasonably practicable to determine whether any item can be lawfully seized you may:
- Remove items for examination or analysis off-site to determine if you can seize them lawfully.
Any item you want to remove must be within the scope of the original search.
What does Section 123 allow you to do in relation to items found during searches?
You may seize any item you find in plain view when you are searching or that you observe if:
- You have RGTB that you could have seized the item under a search warrant or other search power.
What is a production order?
Production orders are orders made under section 74 of the Search and Surveillance Act 2012 requiring a person or organisation (such as a business) to produce documents to enforcement agencies as evidential material of a specified offence.
Production orders are issued by issuing officers. (These are the same people as for search warrants.)
Why use a production order instead of a search warrant?
You have the choice whether a standard search warrant or production order should be sought for use in any given case.
While compliance costs are incurred by a business issued with a production order, these costs are offset against the avoidance of the disruption that would otherwise occur by physical entry and search of the premises under a search warrant.
Very often production order powers will be less intrusive and involve less cost, than using search warrants as an alternative.
How long is a production order in force?
A production order is in force for the period specified in the order (not exceeding 30 days after the date on which the order is made).
(Section 76).
Who may apply for a production order?
Any enforcement officer may apply to an issuing officer for a production order.
(Section 71[1].)
Do you need approval to make a production order application?
You must seek prior approval from your district approver before making an application directed to a telecommunications provider seeking information such as call associated data, or content.
What matters should the district approver consider before granting approval for a production order?
Before granting approval to apply for production orders, the district approver must take these matters into account and be satisfied:
- The grounds for applying for a production order are met,
- The resource benefit of making an application is advantageous to Police and the investigation (i.e. the use of a production order is an effective investigative tool and the offence(s) under investigation are sufficiently
serious to justify the resource), - The information sought does not make unreasonable or unnecessary demands on the telecommunications provider, whom the order is against, particularly if those documents sought are forward looking (i.e. documents and call associated data coming into the control of the person etc whom the order is against while the order is in force).
What must you do if your production order application relates to a news media organisation?
If your application relates to a news media organisation, you must:
- Obtain approval from a Police Executive member in the case of PNHQ or a district commander for a district matter, and follow the guidance on ‘Search warrants, production orders and examination orders involving media organisations in the Search chapter in the Police Manual.
What form of approval is best when making a production order application?
Where practicable obtain written authority to make an application for a production order from a constable of or above the position level of sergeant where practicable.
What grounds must you have to apply for a production order?
You may apply for a production order if you have reasonable grounds to:
- Suspect that an offence has been, is being, or will be committed (it must be an offence for which you could apply for a search warrant), and,
- Believe that the documents sought by the proposed order constitute evidential material in respect of the offence, and are in the possession or under the control of the person against whom the order is sought, or will come into their possession, or under their control while the order is in force. (Section 72).
What are your options in relation to methods of making a production order applications?
You must apply for a production order in writing along with a personal appearance before, or communication orally with, the issuing officer unless it is impracticable to do so in the circumstances.
In this situation you may apply to:
- Make an application orally e.g. by telephone or personal appearance, or,
- Have your application considered without a personal appearance or oral communication.
What are the conditions for making an oral application for a production order?
An issuing officer may allow an application for a production order to be made orally (e.g. by telephone or by personal appearance) and excuse the applicant from putting all or part of the application in writing if satisfied that:
- Requiring a written application would result in a delay that would compromise the effectiveness of the search, and,
- The question of whether the order should be issued can be properly determined on the basis of an oral communication or personal appearance, and,
- All required information is supplied to them (orally, or partly orally and partly in writing). (Section 100 [3]).
What must be done if an oral application for production order is granted?
If an oral application is allowed:
- The issuing officer must record the grounds for the application as soon as practicable,
- The applicant must complete the application form capturing the information conveyed to the issuing officer as soon as practicable and in any event within 24 hours, and the order.
What information should be included in a production order with regard to hearsay evidence?
Hearsay evidence can be used to outline the grounds on which the application is made, if it is highly reliable. Indicate its reliability by stating:
- Sufficient information to prove the reliability of what has been stated,
- The informant’s reliability and whether they have given reliable information in the past. An appropriate way to say this is: “In the past, Informant A has supplied Police with information that has proved to be reliable.”
- Whether the information has been confirmed by other means.
What rights does everyone have concerning privacy in their own home?
Everyone has the right to privacy in their own home, the right to refuse entry to others and the right to expect that they should be able to conduct lawful activities in private.
What can police officers do in terms of surveillance when lawfully in a private premises?
(Without surveillance device warrants.)
When Police lawfully enter private premises then you can carry out lawful surveillance by means of your unaided observation, unaided sense of hearing, and unaided sense of smell. You can also record, by way of audio or visual device, what you see or hear there, providing that the device you use does not enhance (e.g. amplify or enlarge) your ability to observe or hear.
However, surveillance by way of a device that enhances your ability to conduct that surveillance, is recognised as more intrusive.
What is surveillance?
Police surveillance is planned and directed activity. Either open or covert, and for the purpose of:
- Observing, and any recording of that observation, of people, vehicles, places and things,
- Ascertaining (tracking) the location of a thing or person, or whether a thing has been interfered or tampered with,
- Intercepting a private communication.
In what situations does the Search and Surveillance Act 2012 regulate surveillance activities?
The Search and Surveillance Act 2012 regulates only those surveillance activities undertaken by means of a device. It establishes clear boundaries for the lawful use of a surveillance device:
- Where trespass is not involved,
- Where trespass is involved,
- Where warrantless powers exist.
What is a surveillance device?
A surveillance device is a device which assists and enhances your normal capabilities to carry out the surveillance.
A surveillance device may be any one or more of the following kinds of device:
- A visual surveillance device,
- An interception device,
- A tracking device.
What is a visual surveillance device, and what part of the act applies to using such a device?
Visual surveillance device –
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used to observe, or to observe and record, a private activity, but,
(b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
Section 46 - Activities for which surveillance device warrant required:
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.
What exceptions apply to the requirement to obtain a surveillance device warrant for the use of a visual surveillance device?
Some exceptions apply to the requirement to obtain a surveillance device warrant for the use of a visual surveillance device.
These are:
- Situations of emergency or urgency (although use of a surveillance device in these situations must still be reported in the on-line system), and,
- Activities that do not require a warrant.
Define: Private land and goods.
Where surveillance with a surveillance device is concerned, the Search and Surveillance Act restricts surveillance activity in places an individual ‘ought reasonably to expect’ are private.
Those places include land (in private ownership) and any private premises on that land, and ‘goods’.
Goods generally mean chattels and include vehicles and other tangible belongings.
Surveillance is unlawful if it involves a trespass, which is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by a surveillance device warrant.
(Exceptions apply in situations of emergency or urgency).
Define: Private premises.
Private premises means a private dwelling house, a marae, and any other premises that are not within the definition of non-private premises.
Define: Non-private premises.
Non-private premises means premises, or part of a premises, to which members of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway station, airport or shop.
Note: Not all parts of hospitals, bus stations etc are non-private premises.
Areas that would be considered as private are:
- Hospitals – theatres, consulting rooms,
- Railway station – office area , staff meal room.
Define: Private activity.
The definition of private activity acknowledges fundamental human rights.
A participant in an activity can reasonably expect the activity is private, if it is carried out in private premises.
But – ‘ought reasonably to expect’ must be an objective test i.e. what any person would expect.
Where private activities occur is of key importance.
Consider – would you expect your participation in the following activities to be private?
- Sleeping in a hotel room,
- Planting in your back garden,
- Trying on clothes in a changing room.
Be aware – private activities may occur in places that do not fit the definition of private premises.
Define: Private communication.
Private communication –
(a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the
communication desires it to be confined to the parties to the communication, but,
(b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of
any party to do so.
Note that any person can reasonably expect their communication to be private when it occurs in circumstances where they have the right to expect it will not be intercepted or recorded.
Where reasonable expectations of privacy are interfered with or intruded upon by the use of an interception device, a surveillance device warrant is required.
Define: Trespass surveillance.
Surveillance that involves trespass onto land or trespass to goods.
Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.
For surveillance purposes, if you do not have consent to enter onto private property, then you are trespassing.
What restrictions exist for use of a surveillance device during trespass surveillance, and what part of the act applies?
Any warrant application to use a visual surveillance device for trespass surveillance will only be authorised for obtaining evidential material for serious offences.
Any warrant application to use an interception device, whether or not a trespass surveillance occurs, is restricted to obtaining evidential material for serious offences only.
(A serious offence is an offence punishable by 7 years imprisonment or more).
Section 46 – Activities for which surveillance device warrant required:
(d) Use of a surveillance device that involves trespass onto private property
Define: Curtilage.
Means 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 a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.
Activities that do not require a warrant cover the use of a visual surveillance device within the curtilage of private property but usage is restricted to time limitations.
The curtilage of a dwelling is the ground between the fence, garden, hedge or mowed grass border and the dwelling. It can be taken to mean a garden, yard or field, or other piece of ground or building near to or belonging to a house.
The curtilage of a dwelling does not necessarily equate with the boundary of the property, although in the vast majority of cases the boundary and the curtilage will coincide exactly. Thus, the curtilage of a suburban house is likely to be clearly defined by a fenceline, whereas on a farm, the house and curtilage will form a small part of the whole property.
What limitations exist for use of a visual surveillance device for surveillance within curtilage of a property, and what part of the act applies?
A visual surveillance device may be lawfully used without warrant to gather evidential material for a serious offence if its usage does not exceed the
established time limits.
Section 46 – Activities for which surveillance device warrant required:
(e ) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of that
observation, for the purposes of a single investigation, or a connected series of investigations, exceeds –
(i) 3 hours in any total 24-hour period; or
(ii) 8 hours in total.
Define: Interception.
Intercept in relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communication either –
- When it is taking place, or,
- While it is in transit.
Define: Interception device.
Interception device –
(a) means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to intercept or record a private communication; but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.
Note: A surveillance device warrant is required to use an interception device to intercept a private communication.
What part of the act applies to interception devices?
Section 46 – Activities for which surveillance device warrant required:
(a) Use of an interception device to intercept private communications.
What are the limitations on use of an interception device?
The Search and Surveillance Act limits the use of an interception device, to intercept a private communication, whether or not that communication occurs in private or non- private premises, to obtaining evidential material for serious offences only.
A surveillance device warrant will only be authorised for use of an interception device for gathering evidential material for:
- Offences punishable by 7 or more years imprisonment,
- Identified Arms Act 1983 offences,
- Identified Psychoactive Substances Act 2013 offences.
Define: Voluntary oral communication.
A voluntary oral communication is a communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (section 47).
There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.
What is a tracking device?
Tracking device –
(a) means a device that, may be used to help ascertain, by electronic or other means, either or both of the following:
(i) the location of a thing or a person;
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but,
(b) does not include a vehicle or other means of transport, such as a boat or helicopter.
What are the limitations for use of a tracking device, and what part of the act applies?
Although the use of a tracking device is considered to be less intrusive to an individual’s privacy (as it only reveals the location of a thing or a person in possession of that thing), the use of a tracking device requires a surveillance device warrant.
A surveillance device warrant may authorise the use of a tracking device to obtain evidential material for the investigation of any offence punishable by imprisonment.
Section 46 – Activities for which surveillance device warrant required:
(b) Use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods.
When should specialist support be used for use of surveillance devices?
Tracking devices may only be used with the assistance of specialist squads.
Covert surveillance using sophisticated electronic surveillance devices must be undertaken only by specialist trained officers.
Specialist trained staff and surveillance squads are established at a number of main centres and their services are available to districts on request.
What does Section 48 state with regard to use of surveillance devices in situations of emergency or urgency?
A surveillance device warrant need not be obtained for use of surveillance devices in some situations of emergency or urgency.
Section 48 acknowledges that in certain situations, police may need to act immediately without warrant to use any one or more surveillance devices.
Two key ingredients exist for any situation to be recognised as one of emergency or urgency.
Ingredient – ‘entitled to apply’
Means – you would be entitled to make an application for a surveillance device warrant as the situation is one of serious criminal activity.
Ingredient – ‘impracticable in the circumstances’
Means – you need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant.
Surveillance without warrant in situations of emergency or urgency is permitted only where the above circumstances apply and the suspected offence has been, is being, or is about to be committed and is:
- Punishable by 14 years imprisonment or more, and you believe that use of the surveillance device would obtain evidential material in relation to the offence,
- There is a situation which is likely to cause injury or serious property loss / damage and surveillance is necessary to prevent offending from being committed or continuing, or something is presenting risk to life and safety of any person and surveillance is necessary as an emergency response (section 14),
- An Arms Act 1983 offence has been committed,
- A person is in breach of the Arms Act 1983, and by reason of their physical or mental condition (however caused) is incapable of having proper control of arms, or may kill or cause bodily injury to any person, or that under the Domestic Violence Act 1995 a protection order or a police safety order is in force against the person, or there are grounds to make an application against him or her for a protection order,
- An offence against the Misuse of Drugs Act 1975.
What are the time constraints for use of a surveillance device without a warrant in an emergency situation?
In situations of emergency or urgency police must be able to act with immediacy and with adequate tools to be able to fulfil their duties and obligations under the Policing Act 2008.
However, the warrantless period for the use of a surveillance device in a situation of emergency or urgency is a period not exceeding 48 hours.
An application for a surveillance device warrant must still be made if the surveillance might continue beyond the period within which it is practicable to obtain a warrant.
The warrantless period allows police flexibility to act. The time restriction that applies before a warrant application must be made ensures proper oversight and reporting is maintained.
When should approval for use of an interception device in an emergency situation be obtained?
Approval to use an interception device in an emergency situation should be obtained from a Detective Inspector unless:
- The immediacy of the situation does not allow for prior planning and approval from a Detective Inspector in consultation with Legal Services, and,
- Statutory criteria is met, and,
- An opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time.
What are the reporting requirements after using a surveillance device in situations of urgency or emergency?
When a warrantless surveillance power is exercised the enforcement officer must provide a notification (report in the Search and Surveillance system) to a Judge within 1 month after the date of the last day of any period of 48 hours or less over which the surveillance device was used.
What are the limitations on the period of use for a surveillance device warrant after it is issued?
A surveillance device warrant may be issued for a period of no more than 60 days after the date on which the warrant is issued, and is in force for that period.
There is no warrant renewal procedure under the Act. To extend the period of 60 days or the lesser period for which the warrant is valid, a new application for a surveillance device warrant will be required.
