Other

Question 1

what must you do when you form reasonable grounds?

Answer 1

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.

Example: RGTS and RGTB
One morning you receive information from a very reliable source that John has just purchased some methamphetamine. Your source tells you that John has now left his home to visit a house in town where he may attempt to sell the methamphetamine.

To undertake a warrantless search of a person for a controlled drug (Search and Surveillance Act section 22) you must:
* have RGTS that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and
* have RGTB that a person is in possession of a controlled drug or precursor substance

In this example, you may search John as you have RGTS that he has committed an offence and RGTB that if you search him you will find the drugs.

Question 2

What is the difference between a lawful and reasonable search?

Answer 2

Under the Search and Surveillance Act 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

Under the Search and Surveillance Act a reasonable search is a search that:
* 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.

Question 3

Discuss the search hierarchy

Answer 3

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.

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 Remember to record this in your decision log.

Question 4

What can you do if it is not practicable to obtain a search warrant?

Answer 4

If it is not practicable in the circumstances to apply for a search warrant, there may be two other options available to you.

• 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.

Remember:
If you do not have a search warrant, a warrantless power of search, or consent from the person, you cannot search.

Question 5

What are the benefits of obtaining a search warrant?

Answer 5

Using a search warrant:
1. Ensures judicial oversight
2. Provides greater protection for Police and the public
3. Requires recording and reporting of results

Question 6

What needs to be determined before completing consent searches?

Answer 6

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 (section 92). 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.

Question 7

What must you advise the person prior to consent search?

Answer 7

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. If this occurs, stop the search immediately, unless you can invoke a warrantless search power to continue the search.

A person under 14 years old is unable to consent to the search of a place, vehicle or other thing (unless they are found driving with no passenger of or over 14 years of age with authority to consent to the vehicle’s search).

Under the Search and Surveillance Act reporting requirements you do not have to report a consent search.

Question 8

What are your obligations of identification?

Answer 8

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.

Your obligations cover identification, intention, reason and notice
requirements whereby before initial entry you must:
* 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 (Bill of Rights).

If you are using a warrantless search power you must state the reason for your search.

Question 9

What must you do after using a power?

Answer 9

• 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)

Question 10

What notice must you provide to an occupier when using a power?

Answer 10

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 form:
* POL 1275 search notice to occupier

Question 11

When may there be an exception to providing your obligations under 131?

Answer 11

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

Question 12

What can you do if someone refuses entry to your power?

Answer 12

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.

Question 13

What can you do if no one is present at the place where the search is to be conducted?

Answer 13

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.

If the occupier of the place or the person in charge of the vehicle is not there when you search, you must leave a copy of the search warrant or a POL 1275 search notice to occupier and an inventory of any material seized.

This must be as soon as possible after the search and must be provided within 7 days of completion of the search.

Question 14

What does section 110 of the Search and Surveillance Act 2012 allow you to do?

Answer 14

Each search power authorises you to use additional powers when searching a place, vehicle or other thing with or without a warrant.

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

Question 15

What power can you use if your search is impeded?

Answer 15

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

Question 16

What can you do under section 116?

Answer 16

You can secure a place, vehicle or other thing to be searched and exclude any person from there.

Question 17

What can you do under section 118?

Answer 17

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.

Question 18

What can you do under section 119?

Answer 18

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.

Question 19

What can you do under section 120?

Answer 19

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.

Question 20

What is AWOCA

Answer 20

If a person resists a search use the AWOCA process.

Work through AWOCA to warn the person and arrest them for obstruction if necessary.

You can then carry out a section 85 (rub down) or section 88 (warrantless search of arrested or detained person) search.

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

Question 21

What are some special rules for searching people?

Answer 21

You can search any item that the person is wearing, carrying, has in their physical possession or immediate control (section 125(1)(i)).
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.

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.

Question 22

What can you do if you are having issues with someone detained?

Answer 22

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)).

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)).

Question 23

What are examples of a fresh pursuit?

Answer 23

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)).

Question 24

What is privileged information?

Answer 24

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.

Recognised privileged material includes material gained through
communication with:
* legal advisers
* ministers of religion
* medical practitioners
* clinical psychologists
* informers (informants)
* journalists

Question 25

What a the practical procedures for privileged information?

Answer 25

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 an inventory 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.

Question 26

What are the 7 steps to the search warrant process

Answer 26

1. Gain prior approval
2. Gain online approval
3. Gain Issuing Officer authorisation
4. Plan and brief search warrant execution
5. Execute search warrant
6. Report outcomes
7. File investigation Records

Question 27

What are other ways to obtain a warrant if it is not practicable the normal way?

Answer 27

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 or e mail).
* secure a scene while you apply for a search warrant for a maximum period of 6 hours (section 117).

These options may help you manage the time required to apply for a warrant where there is a risk of loss of evidential material. They should be considered as exceptions and not used unless other means are not practically available.

Note: If oral approval is sought, you must make an online application in the Search and Surveillance system as soon as possible and back-capture the required information.

Remember to keep notes of the content of the oral application.

Question 28

What must you do prior to making an online application for a SW?

Answer 28

Before commencing to make an application for a search warrant, you must:
1. 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
* RGTB that the search will find evidential material in respect of the offence in the place, vehicle, other thing or facility.
2. Have checked the target/s history in NIA for other search warrant applications / outcomes.
3. Have assessed the risks associated with executing the search warrant.
4. Have obtained initial approval from a supervisor at or above the rank of sergeant to proceed with the on-line application.

Question 29

What is section 117?

Answer 29

Section 117 offers a special power when a search warrant application 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.

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.
Remember that section 117 authorises the securing of the address until a search warrant is obtained. It is not a search power.

The powers conferred by section 117(1) may be exercised until the first of the following occurs:
(a) the expiry of 6 hours from when the power is first exercised:
(b) the warrant is available for execution at that place or vehicle or in respect of that other thing:
(c) the application for a search warrant is refused.

Question 30

Who can issue a search warrant?

Answer 30

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
* Deputy Registrar

Question 31

What must be satisfied for an issuing officer to approve a search warrant?

Answer 31

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.

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

Question 32

What should you do if the search warrant is refused?

Answer 32

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
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

Question 33

Who may execute a search warrant?

Answer 33

The person to whom it is directed or any constable.

Question 34

How long is a search warrant valid?

Answer 34

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.

Question 35

When can a search warrant be executed?

Answer 35

• at any time that is reasonable under the circumstances, or
• at a restricted time required by the Issuing Officer as a condition of execution.

Question 36

When is a search warrant considered executed?

Answer 36

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.

Question 37

How often can a search warrant be executed?

Answer 37

• 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.

Question 38

What are four things you must do in regard to risk assessment for search warrants?

Answer 38

• 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

Question 39

What happens if you cant provide a copy of the search warrant or inventory list?

Answer 39

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).

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.

Example:
You are applying for a warrant to search a gang headquarters for evidential material relating to the manufacture of methamphetamine.
If you believe that complying with notice obligations would be dangerous to those involved you can apply to a judge to postpone your obligations to leave a copy of the search warrant when you are applying for the search warrant or up to 7 days after the search warrant was executed.

Question 40

What is GSMEAC?

Answer 40

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 and Logistics
* travel to and from the place to be searched under warrant
* timing of the search warrant execution
* recording of evidential material seized

Command and Signals
* cell-phone numbers and radio channels
* before executing the search warrant
* during execution of the search warrant
* debrief

Question 41

List things the O/C should do at a search warrant briefing?

Answer 41

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 disclosable

The briefer should also clearly identify all risks and how to mitigate them. The briefer should also identify any issues relating to sensitive or source (CHIS) related information.

Question 42

List of obligations and additional powers (with sections)

Answer 42

Rules and obligations
* identification and notice requirements when searching places, vehicles and other things (section 131)
* the rules for searching people (section 125)
* powers incidental to search (section 110)
* reporting (section 169)

Additional powers
* securing a place, vehicle or other thing to be searched and excluding any person from there (section 116)
* powers of detention incidental to search of places or vehicles (section 118)
* powers of search by a person who has a power of arrest (section 119)
* stopping vehicles for search (section 121)
* moving vehicles for search / safekeeping (section 122)
* seizure of items in plain view (section 123)
* items of uncertain status may be seized (section 112)

Question 43

What happens if you don’t want to provide the list of evidential material sought?

Answer 43

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.

Question 44

What happens if no one is home for your search warrant?

Answer 44

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 and an inventory of any items seized. If not reasonably practicable, then this action must be completed within 7 days of the search warrant being executed.

Question 45

What is your power to search any person or vehicle when you a searching a place for a misuse of drugs act offence?

Answer 45

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 (section 19).

Remember to comply with the obligations and rules set out in section 125.
1. identify yourself by name or unique number
2. advise the person of the enactment under which the search is taking place and the reason for the search, unless it is impracticable to do so
3. produce evidence of identity if not in uniform

Question 46

what 4 things can you do when you exercise a power to search a person?

Answer 46

When you exercise a power to search a person you may:
* detain the person to enable the search to be carried out (for as long as is reasonably necessary)
* use force that is reasonable for the purposes of the search
* search any item that the person is wearing, carrying or is in the person’s physical possession or immediate control
* seize anything carried by or in their physical possession or immediate control if the thing is the subject of the search or may be lawfully seized.

Question 47

What is your power to stop a vehicle for a search warrant or warrantless power?

Answer 47

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

Question 48

What section allows you onto a place to execute a search warrant on a vehicle?

Answer 48

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.

Question 49

What power can you use for uncertain status and items in plain view?

Answer 49

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)

112

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.
Example:
1. drugs that require analysis at a laboratory
2. large amounts of documents that may contain evidential material and it is not practicable to sort them on-site.
If you are:
* Exercising a search power or
* Carrying out a lawful search of a person or
* Lawfully in a place or vehicle

123

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.
Example:
You are searching for a person under Section 8 and look inside a wardrobe for that person. You find a bag of cannabis. As the bag is in ‘plain view’ you may seize it under section 123.
Example:
You attend a family violence incident and while in the lounge talking with the couple involved, you see a distinctive item of clothing which you have RGTB was stolen in a recent burglary. As you are lawfully at the address and the clothing was in ‘plain view’ you can seize it under section 123.

Question 50

What section covers Production orders?

Answer 50

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).

Question 51

What is the difference between a search warrant and a production order?

Answer 51

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.

Question 52

What is the maximum time a Production Order can be in place?

Answer 52

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).

Question 53

Who may apply for a Production Order?

Answer 53

Any enforcement officer may apply to an issuing officer for a production order. (Section 71(1).

Question 54

Who must approve the application for a production order?

Answer 54

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

Question 55

What must you consider before applying for a production order?

Answer 55

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).

Question 56

Who approves production orders for a media organization?

Answer 56

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.

Question 57

What are the grounds for applying for a production order?

Answer 57

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).

Question 58

How can you apply for a production order?

Answer 58

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 e.g. by email.
All applications for production orders must be made using prescribed forms available in Police Forms > Search and Surveillance > Production Orders

Question 59

What must be satisfied if you wish to apply orally for a production order?

Answer 59

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))
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

Question 60

Can you use hearsay evidence for an application?

Answer 60

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

Question 61

What does policy state around claiming for damage to property during a search warrant?

Answer 61

Police employees must not incur expenditure or any indication or undertaking on behalf of Police to rectify damage caused to any property in the execution of a search warrant or statutory power, as this pre-empts any decision as to the payment of compensation.

Where a claim arises, or is likely to arise, it should be directed by the officer in charge of the incident to the District Commander or National Manager for consideration along with a report containing the following information:
* the circumstances in which the search warrant or statutory power was executed;
* the grounds for its execution;
* the damage caused and the associated circumstances;
* the outcome of the search warrant or statutory power being executed;
* details regarding the owner of the property and the occupier or user of the property, at the relevant time;
* the nature and basis of the claim, as stated by the owner of the property;
* any steps taken by Police or the owner to prevent further loss or damage.

Whilst it is not anticipated that employees will solicit claims for compensation from property owners, officers in charge should assist owners in putting their claim forward for consideration if they lack the ability to do so, when there is a basis for making such a claim.

Question 62

Do you have to secure a premise that you’ve been in?

Answer 62

Premises must never be left unoccupied and insecure after a forced-entry, as liability for any loss may arise, e.g. if the contents are stolen from the address. Officers in charge should make every attempt to prevent such loss by ensuring the property is made secure without incurring a liability for costs on behalf of Police.

Generally this will mean:
* liaising with the owner or occupier to secure their own property. If necessary and practicable, offer to wait for a specified period of time for the owner or occupier, or an agent, to arrive to do this; or
* at the occupier’s or owner’s request, engaging a contractor to make the premises secure on the understanding that the occupier or owner will bear the cost, or
* attending staff effecting a temporary repair where feasible, e.g. by boarding up a window.

Question 63

What is surveillance?

Answer 63

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

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

Question 64

What are the curtilage limitations?

Answer 64

The legislation sets time limitations on the use of a visual surveillance device for surveillance activity within the curtilage of private property.
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

Explanation:
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.

Question 65

What are the limitations of the use of an interception device?

Answer 65

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

Question 66

What happens if one person gives consent to record the private communication?

Answer 66

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.
Example:
An offender admits to his role in a drug ring and agrees to allow police to record his telephone conversation with the ringleader to gather evidential material.
Example:
A CHIS agrees to wear a device that will record his telephone conversation with a gang leader who is under investigation for a series of armed robberies.

Question 67

What is a tracking device?

Answer 67

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.
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.

Question 68

What is available in situations of emergency?

Answer 68

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 1 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:
* an Arms Act 1983 offence
− or a person by reason of their physical or mental condition (however caused) is incapable of having proper control of the 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.
* a drug offence; or
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
* presenting risk to life and safety and surveillance is necessary as an emergency response (section 14)

Question 69

What are time constraints on emergency situations?

Answer 69

Limitations on use of surveillance device without 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.

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.

Question 70

What is the requirement to report on emergency situations?

Answer 70

Report on use of surveillance device in situation 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.

Question 71

What is the period of time a surveillance device warrant can be obtained for

Answer 71

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.