Introduction Flashcards
- Purpose of the Act
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 with technology
- providing rules that recognise rights and entitlements
- ensuring investigative tools are effective and adequate for law enforcement
- How to Comply with the Act
- Ensure you have a lawful authority to conduct such activities
- Conduct risk assessment
- Only seize what Police are lawfully entitled to seize
- Provide appropriate announcements and identification
- Satisfy requirements detailed in the Act
- Reasonable Grounds to Suspect vs Reasonable Grounds to Believe
RGTS means having a sound basis for suspecting that a situation or circumstances exist. Example - entering because you suspect an offence has, is or will be committed.
RGTB means having a sound basis for believing that a situation or circumstances exist. Example - enter and search because you believe you will find evidential material.
‘Reasonable Grounds’
Forming a belief or suspicion. You must be able to clearly describe your reasons. You must record in your notebook your reasonable grounds for using search power. This is your decision log.
Be aware that you may have to: report on your decision to use a power and your grounds for using it AND justify your use of a power in court or in other formal processes.
Lawful v Reasonable Search
LAWFUL
- With a search warrant
- Under a warrantless search power
- with the persons consent
REASONABLE
- complies with section 21 of the New Zealand Bill of Rights Act and considers factors such as: the nature of the search, how intrusive the search is, where and when the search takes place.
- Practicable in the Circumstances
Questioning what is practicable:
- is there time to gain approval and apply for a search warrant
- can the scene be secured (section 117)
- are reasonable resources available to minimise risk and ensure safety
- is the evidential material at risk
- location of the search and who may be present
When a SW isn’t Practicable
- Search using a warrantless search
- Search by consent
Why use a SW
- Ensures judicial oversight
- Provides greater protection for Police and the Public
- Requires recording and reporting of results
- Consent Search
Must be for one of the following reasons:
- to prevent the commission of an offence
- to investigate whether an offence has been commissioned
- to protect life or property
- to prevent injury or harm
- Consent Search Continued
You must advise the person:
- of the reason for the proposed search AND they may consent or refuse to consent to the search
A person who consents can withdraw their consent at anytime, meaning you have to stop the search immediately.
A person under 14 years of age cannot give consent to the search of a place, vehicle, or other thing (unless they are found driving, with no other passenger of or over 14 years of age with authority to consent to the vehicles search).
- Evidential Material
Means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation.
- Tangible - something that may be touched
- Intangible - unable to be touched, not having a physical presence.
- CADD
You must be able to explain your RGTB that the evidential material you are searching for will be subject to CADD.
Concealed - By burying or hiding items in another place or removing items
Altered - By changing or removing serial numbers from stolen property in an attempt to disguise it
Damaged - By cutting out the firewall of a stolen car to remove an identifying feature
Destroyed - By consuming food, alcohol or drugs, burning clothing.
Obligations: Identification
- identify yourself by name or by unique identifier (QID)
- provide evidence of identity if not in uniform
- announce your intention to enter and search
- state the name of the act
- 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 (BOR)
Obligations: Reason
You must state the reason for your search:
- provide a copy of the search warrant or a warrantless search notice to occupier and provide an inventory of seized items
- report your use of certain powers
- consider privilege
- Obligations: Notification
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.
- Provide a copy of search warrant
- Or if using a warrantless power - state the name and enactment under which the search is taking place and the reason for the search under the enactment
- Exceptions to Identification/Notice
RGTB no one is present.
You do not have to comply with the requirements on initial entry if you have RGTB this would: endanger any persons life; prejudice the successful use of the entry and search power; prejudice ongoing investigations
Refusal of Entry
You may use reasonable force to enter if the person refuses entry or does not allow entry within a reasonable time following a request.
No One Is 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.
You must leave a copy of the SW and notice of any inventory seized. This must be as soon as possible after the search and must be provided within 7 days of completion of the search.
Power to Search a Place, Vehicle, or Thing
Section 110 authorises you to:
- enter and search the place, vehicle or thing, that you are authorised to enter and search
- search any item or items found in that place, vehicle or thing
- use reasonable force in respect of any property for the purpose of carrying out the search and lawful seizure
- seize anything that is 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 thing
- bring and use a trained law enforcement dog and its handler
- copy any document, or part of any document, that may be lawfully seized
- access a computer system or other data storage device
- copy intangible material
- Take photographs, sound, and video recordings
What If Your Search Is Impeded
Section 116 authorises you to:
- exclude that person from the place, vehicle or thing, being searched, or any area in or on the place or vehicle
- give any reasonable direction to that person
AWOCA
Ask - greet the person and identify yourself
Why - give the reasons for your actions
Options - present options
Confirm - the person understands
Action - take action
Special Rules for Searching People (125)
You can search any item that person is wearing, carrying, has in their physical possession or immediate control. In a manner that affords the person privacy and dignity.
You can seize any item that person is wearing, carrying, has in their physical possession or immediate control if that is the item you are searching for.
You may also seize an item that may be lawfully seized even if it was not the subject of your search.
Detained Person Tries to Leave (118(4))
You can use reasonable force to detain them for a search.
Someone Arrives During Search
If someone else arrives at the place or vehicle and starts to talk to the person already detained under 118, you may:
- Exclude if RGTB they will obstruct (116)
- Detain if you determine there is a connection to the search (118)
- search if RGTB they have evidential material on them (119)
- search if RGTS they may have a dangerous item & need to act immediately (119)
