Part 1 - Pg 1

Question 1

What does section 5 of the S & S act state?

Answer 1

Facilitate the monitoring of compliance and investigation and prosecution of offences in a manner consistent with human rights values:

• 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.

Question 2

How to comply under the S & S act?

Answer 2

When carrying out entries, searches, inspections, productions, examinations, seizures, road blocks and stopping vehicles, Police will:

• ensure 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).

Question 3

Define RGTS

Answer 3

Reasonable grounds to suspect (RGTS) means having a sound basis for suspecting that a situation or circumstance exists.

Question 4

Define RGTS

Answer 4

Reasonable Grounds to Believe (RGTB) means having a sound basis for believing that a situation or circumstance exists.

Question 5

Reasonable grounds, what must you do when you form a belief or suspicion ?

Answer 5

Record you reasonable grounds for using a search power in your notebook, this is your decision log.

Question 6

Under the S & S Act, what is a lawful search defined as?

Answer 6

One that is conducted:

• with a search warrant
• under a warrant-less search power
• with the persons consent

Question 7

Under the S & S Act, what is a reasonable search defined as?

Answer 7

One which considers factors such as:

• the nature of the search
• how intrusive the search is
• where and when the search takes place

Question 8

What must you consider before any search?

Answer 8

You must think about whether applying for a SW is practicable in the circumstances.

If it is at all practicable to do so then you should apply for a SW even if a warrant-less 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).

Question 9

What questions should you consider when thinking about practicable ?

Answer 9

• Is there time to gain approval and apply for search warrant
• Can the scene be secured (S.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.

Question 10

If it is not practicable in the circumstances to apply for a search warrant, there may be 2 other options available, what are these?

Answer 10

• 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.

Question 11

Why use a search warrant?

Answer 11

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

Question 12

Search by consent, what must you determine (reasons) for doing a search by consent?

Answer 12

• 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

Section 91 - 96 of S & S cover consent searches.

Question 13

What must you advise a person before conducting a search by consent?

Answer 13

• 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.

Record your grounds for search and make notes about the search in your notebook.

Question 14

Is a person under the age of 14 able to consent to a search?

Answer 14

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).

Question 15

Do you have any reporting requirements under consent searches?

Answer 15

No.

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

Question 16

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, what are the definitions of Tangible and Intangible?

Answer 16

Tangible
Tangible means something that may be touched.

Intangible
Intangible means ‘unable to be touched; not having physical presence’.

Section 97 provides examples of intangible things, e.g. an email address or access information to an Internet data storage facility.

Question 17

Define CADD?

Answer 17

• Concealed
• Altered
• Damaged
• Destroyed

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

Question 18

When searching a place, vehicle or other thing, you must comply with the obligations set out under section 131, what are these obligations?

Answer 18

• 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).

IPA AND BOR

Question 19

If you are using a warrant less power, what else must your do outside of your obligations under S.131?

Answer 19

• 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 20

Section 131 also 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, what does this include?

Answer 20

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 21

You are not required to comply with identification, intention and notice requirements on initial entry if you have RGTB that no one is present, what are the reasons not to?

Answer 21

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 22

In relation to force, what if there is no one at the place where the search is to be conducted?

Answer 22

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 23

In relation to force, what if a person refuses entry?

Answer 23

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.