Obligations Flashcards
When searching a place, vehicle or other thing, you must comply with the obligations set out under section 131.
These obligations are (R.A.I.N)?
- identify yourself by name or by unique identifier (QID)
- 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 (Bill of Rights).
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)
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.
It includes giving written notice, which means?
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 form:
• POL 1275 search notice to occupier
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 if a person refuses 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 if there is no one at the place where the search is to be conducted?
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 search warrant or a POL 1275 search notice to occupier and an inventory of any material seized (POL268).
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 other thing
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
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
Additional powers are available that you can use with your original search power –whether warrantless or warranted. These are?
Section 116
You can secure a place, vehicle or other thing to be searched and exclude any person from there.
Section 118
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
Section 119
• 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.
Section 120
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.
If a person resists a search use the AWOCA process.
A Ask – greet the person and identify yourself. • Ask the person to comply with your search.
W Why – give the reasons for your actions. • intention to search under the Search and Surveillance Act 2012 • based on belief / suspicion
O Options – present options: • allow search or • be arrested for obstruction
C Confirm – confirm that the person understands the options
A Action – take action: • arrest for obstruction
Special rules for searching people
You can search any item that the person is wearing, carrying, has in their physical possession or immediate control (section 125(1)(i)).
What do you have to do?
It 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.
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)). Remember to promptly provide an inventory of these items on the POL268 form.
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)).
Fresh pursuit, example?
Example:
If the person to be searched jumps in the car and quickly drives away you may pursue the car if this is a safe action to take and your actions comply with the Fleeing Driver policy.
Example:
If the person being pursued then drives onto a driveway and enters a house you may enter the house if you are in fresh pursuit of that person or vehicle. You must have RGTB the evidential material you are searching for is still in the vehicle or on that person (section 120(1)(b)).
Privileged material - Definition?
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.
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.
