Obligations/ Powers Of Search Flashcards
Obligation Identification
When searching a place, vehicle or other thing, you must comply with the obligations under Section 131. Which are?
- Identify yourself by name or unique identifier (QID)
- Provide evidence of identity if not in uniform
- Announce your intention to enter and search
- State the name of the act and reason for your search
- Give notice by providing a copy of the search warrant
- If someone has been detained give them their bill of rights
Obligation Reason
When using a Warrantless search power you must state the reason for the search as well as:
- Provide a copy of the search warrant or a Warrantless search notice POL 1275
- Provide inventory of items seized
- Report your use of certain powers - Section 169
- Consider privilege - Sections 136 - 147
Obligation Notice
Section 131 states before initial entry into a place, vehicle or other thing, notice must be given in terms of an explanation to what you are about to do and why.
If executing a Search Warrant:
- Provide a copy of the Search Warrant
If using a Warrantless Power:
- RAIN - Name of the enactment under the search is taking place and the reason for search under that enactment
- To comply with this obligation you can use POL 1275
Exception to the obligations
You are not required to comply with identification, intention and notice requirements if you have RGTB no one is present.
You do not have to comply with requirements of initial entry if you have RGTB:
- Endanger any persons safety
- Prejudice the successful use of the entry and search power
- Prejudice on-going investigation
Refusal of entry
Reasonable force may be used to enter if the person refuses entry or does not allow entry within a reasonable time following a request.
No one present
You may use reasonable force if you have Resaonable Grounds to Believe no one is lawfully present.
You must leave a copy of the Search Warrant or a POL 1275 search notice and an inventory of items seized. This must be as soon as possible and within 7 days of the searches completion.
Powers to Search (Section 110)
- 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 seizure.
- 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 it’s handler
- Copy any document, or part of a document that may be lawfully seized
- Access a computer system or other data storage
- Copy intangible material e.g. computer data
- Take photographs, sound, video recordings and drawings
What if your search is impeded?
If your search is impeded or you have RGTB any person would obstruct or hinder your search, you can use section 116 to:
- Exclude that person from the place, vehicle or other thing, or any area in the place or vehicle.
- Give any reasonable direction to that person.
Additional powers under 116 and 118
116 - You can secure a place, vehicle or other thing to be searched and exclude any person from there.
118 - You can detain people when searching places or vehicles for the purpose of establishing a connection.
Additional powers 119 and 120
119 - You can search people found when searching places or vehicles if you have RGTB the evidential material is on that person.
120 - If you are in fresh pursuit and have RGTB evidential material is still on the person, you have the power to enter any place, to apprehend the offender and search the person or vehicle.
Rules for searching people (Section 125)
You can search any item the person is wearing, carrying or has in their possession. Section 125(1)(i).
Any search must be conducted with decency and sensitivity, with a degree of privacy and dignity.
You can seize any item the person is wearing, carrying or is in their immediate possession, if it’s the item you are searching for. Section 125 (1)(j)
You can seize any item that may be lawfully seized. An inventory must be provided of those items. Section 125(1)(j)
Examples of a fresh pursuit
If the person to be searched, jumps into a car and quickly drives away you may pursue if this is a safe action.
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 the person or vehicle. Must have RGTB evidential material is obtainable if you are searching the person or vehicle.
Searching procedures involving privileged material held by a specific person
Responsibilities
- Ensure the person or their representative is present when the search is undertaken.
- Give the person a reasonable opportunity to claim privilege.
Postpone Obligation Notice
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 must be presented to the judge:
- At the time the application is made
- Before 7 days after execution
A judge can postpone these obligations up to 12 months
Reasonable Force during execution
When executing a Search Warrant you may be required to use reasonable force to:
- Enter the place, vehicle, or other thing (Section 131)
- Search and seize (Section 110)
- Carry out a search of a person ( Section 125)
