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S & S 2012 > Revise 2 > Flashcards

Revise 2 Flashcards

1
Q

What is the definition of private communication?

A

Communication that may reasonably be taken that any party to the communication desires it be confined to the parties to the communication,

but

not include communication of that kind in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person without having implied consent to any party to do so.

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2
Q

What is the time frame for a S.48 use of a surveillance device without warrant in an emergency situation?

A

A period not exceeding 48 hours.

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3
Q

Section 5 discusses the purpose of the act, what is this?

A

Facilitate monitoring of compliance with the law, & investigation and prosecution of offences in a manner consistent with human rights value by:

  1. Modernising the law of search, seizure, and surveillance to take into account technologies.
  2. Providing rules that recognise the importance of the rights affirmed in other enactments
  3. Ensuring investigation tools are effective and adequate for law enforcement needs
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4
Q

RGTS - What does this mean?

A

Means having a sound basis for suspecting that a situation or circumstances exits.

Example: you enter a house or vehicle because you suspect an offence has been, is being, or is about to be committed there.

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5
Q

RGTB - What does this mean?

A

Means have a sound basis for believing that a situation or circumstances exits.

Example: You enter and search a house or vehicle, or search a person because you believe that a search will find the evidential material you are looking for.

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6
Q

Define a LAWFUL search and a REASONABLE search under the act?

A 
LAWFUL:
A search that is conducted with:
•	A search warrant
•	Warrantless search power
•	Search with consent

REASONABLE
A reasonable search complies with section 21 of the BOR Act and considers factors such as:
• Nature of the search
• How intrusive is the search for occupants?
• Where and when the search takes place

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7
Q

When deciding whether it is practical whether or not to get a SW, what must you consider?

A
  • Is there time to gain approval?
  • Can the scene be secured ? S.117
  • Are reasonable resources available to minimise risk and ensure safety?
  • Is evidential material at risk (CADD)
  • Location of search and who may be present?
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8
Q

Definition of evidential material, including tangible and intangible?

A
  • In relation to an offence or suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.
  • Tangible - something that may be touched
  • Intangible - unable to be touched, not having a physical present, e.g. an email address or information inside a computer.
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9
Q

What is an interception device?

A

Any electronic, mechanical, electromagnetic, optical or electro-optical instrument, equipment, or other device that is used or is capable of being used to intercept or record private communication;

but

Does not include a hearing device or similar device used to correct subnormal hearing of the user to no better than normal hearing.

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10
Q

What are the reasons/purposes you must have for a consensual search?

A
  • 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
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11
Q

What are the 3 reasons a consensual search may be unlawful?

A
  • Is not a purpose set out in sec. 92; or
  • Officer fails to comply with the requirements of sec. 93; or
  • Search is reliant on consent by a person who does not have the authority to give consent.
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12
Q

What are your obligations when search a place, vehicle or other thing?

A

S.131 (1)
• State your intention and to enter and search a place, vehicle or thing
• ID self by name or QID
• If not in uniform, proof of ID
• Produce a copy of the search warrant before or on initial entry
• If search is without a warrant, state name of the Act search is being authorized and reason for the search

** If person being detained don’t forget BOR**

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13
Q

What are your powers under S.121 and S.127?

A

Sec. 121 - gives you power to stop a vehicle if you intend to search it with:
• A search warrant
• Use a warrantless power

Sec. 127 - allow you to enter any place:
• To locate the vehicle to execute the search warrant
• If you have RGTB that the vehicle is there.
• Must comply with obligations under sec. 131

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14
Q

What are your obligations when searching a person?

A

Sec 125

  • State name and QID
  • State name of Act which authorize the search, and reason for the search
  • Produce ID if not in uniform
  • Detain person being search
  • May use reasonable force (if refused AWOCA)
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15
Q

What does S.116 allow you to do?

A

Secure a place vehicle or other thing

Exclude any person from there

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16
Q

What does S.118 allow you to do?

A

Detain people when search place, vehicle for the purpose of determining whether there is any connection.

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17
Q

What does S.119 allow you to do?

A

Search people found when search place and vehicles, IF

RGTB EM that is the object of the search is on that person

OR

RGTS that person in possession of dangerous item, which poses threat to safety, you believe immediate action is needed.

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18
Q

What does S.120 allows you to do?

A

If you are in FRESH PURSUIT
RGTB EM is still on that person
Enter any place to apprehend that person and
Search the person and vehicle.

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19
Q

What does S.123 allow you to do?

A

You are:
• Exercising a search power (search warrant or warrantless power); or
• Is lawfully at a place or in or on a vehicle; or
• Is conducting a lawful search of a person

You may seize any item you find in plain view during a lawful search If:

You have RGTB that you could have seized the item under a search warrant or other search power under this act or other act.

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20
Q

What are the exceptions to S.131, ID and notification upon entry?

A

If you have RGTB that no lawful person is present; or

If you have RGTB that complying with requirements of ID & Notice on entry would:
• Endanger any person’s safety; or
• Prejudice the successful use of the entry and search power; or
• Prejudice on-going investigations

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21
Q

What are your obligations upon completion of a S.W when no one is present?

A
  • No requirement to comply with S.131 announcement obligations on entry.
  • Leave a copy of the SW or POL 1275
  • Leave an inventory of what items were seized (as soon as reasonably practicable, must be within 7 days of execution).
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22
Q

The person in charge of a SW briefing should?

A
  • All staff are present
  • reinforce verbal with visual prompts
  • use maps, charts, diagrams, photographs
  • provide copies of important docs
  • ensure all staff clear of role and responsibilities
  • advise what can and can’t be recorded in notebook (CHIS etc).
23
Q 
RULES AND OBLIGATIONS
S. 131
S. 125
S. 110
S. 169
A

S. 131 - ID and notice req when searching place, veh or other things.

S. 125 - Rules for searching people and obligations.

S. 110 - Powers incidental to search (eg. authorises you to enter and search place veh or other thing, request assistance with entry and search and so on).

S. 169 - reporting.

24
Q 
ADDITIONAL POWERS
S. 116
S. 118
S. 119
S. 120
A

S. 116 - obstructing or hindering, power to exclude or reasonable direction.

S. 118 - power to detain to determine link between person and search.

S. 119 - power to search by a person who has power to arrest (RGTB EM object of search on the person, RGTS possession dangerous item, poses threat to safety, believe immediate action req).

S. 120 - Fresh pursuit, RGTB EM on person, may enter apprehend, search person or vehicle.

25
Q 
ADDITIONAL POWERS
S. 121
S. 122
S. 123 
S. 112
A

S. 121 - Power to stop vehicle that you intent to search (either with SW or warrantless power).

S. 122 - Moving vehicle for search or safekeeping.

S. 123 - Seizure of items in plain view (lawful entitled to be there, plain view, RGTB could be seized under SW or other search power).

S. 112 - items of uncertain status (carrying out lawful search, not reasonably practical to determine whether they can be lawfully seized, may remove item off site for examination/analysis. Must be within scope of original search).

26
Q

When executing a SW for drugs (MODA 75), what may you do to any person found in the place, vehicle you are searching (S.19)?

A

Under S.19 you may search any person found in the place or vehicle.

Remember obligations under S.125.

When exercising this power you may:

  • detain the person to enable search to be carried out.
  • use force that is reasonable for purposes of the search
  • search any item that person is wearing, carrying or is in immediate control or physical possession.
  • 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.
27
Q

What grounds must be satisfied prior to a district approver, approving a PO?

A
  • Grounds for applying for PO are met.
  • Resource benefit which is advantageous for Police in the investigation.
  • Information sought does not make unreasonable or unnecessary demands on the telco provider.
28
Q

An issuing officer may allow for an application for a PO to be made orally if satisfied of the following?

A
  • Written application would result in delay that will compromise the effectiveness of the search.
  • the question of whether the order should be issued can be properly determined on the basis of the oral or in person appearance
  • All required info is provided.

issuing officer must record grounds for application as soon as practicable, applicant must complete application form capturing information conveyed as soon as practicable and in any event with 24 HOURS

29
Q

If execution of SW or other power is justified by the outcome, and loss or damage is suffered to the property, will Police provide compensation?

A

Compensation will seldom be paid.

30
Q

If execution of SW or other power is NOT justified by the outcome, and loss or damage is suffered to the property, but the grounds for the execution were sound, will Police provide compensation?

A

Compensation will unlikely be paid.

31
Q

Damage caused to rental properties during S.W?

A

If justified by outcome or grounds were sound, compensation will not likely be paid, owners insurance may cover any repairs.

32
Q

If the search was unreasonable or unjustified damage was caused (eg. door unlocked and you break it down)?

A

In cases where unjustified damage is caused compensation may be available. If constable enters under S.14 risk to life/safety or prevent offence, compensation will seldom be paid.

33
Q

Where claims arise from damage during a SW who should be directed to ? and what information must be provided?

A

Directed by O/C to District Commander or National Manager for consideration.

  • Circumstances in which SW / Stat power was used.
  • Grounds for execution.
  • Damaged caused and associated circs.
  • Outcome of the search.
  • Details regarding owner of property.
  • Nature and basis of the claim as stated by the owner.
  • Any steps taken by Police or the owner to prevent further loss or damage.
34
Q

What is a surveillance device and what are kinds of SD?

A

A SD is a device which ASSISTS and ENHANCES your normal capabilities to carry out the surveillance.

These are:

  • Visual surveillance devices
  • an interception device
  • a tracking device
35
Q

What is a Visual surveillance device and what does it not include?

A

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used to observe, or to observe and record, a private activity, but
(b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.

36
Q

When relating to “goods” under the act, what does it generally mean?

A

Goods generally mean chattels and include vehicles and other tangible belongings.

37
Q

Tell me what the definition of private premise is?

A

Private premise means a private dwelling house, a marae, and any other premises that are not within the definition of non-private premises.

38
Q

Tell me what the definition is of non-private premise?

A

Means premises or part of premises to which members of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway station, airport or shop.

However of note not all places within these premises are considered non-private, such as theaters/consulting rooms/ office areas, staff meal rooms.

39
Q

What are the grounds for a person that expects activity to be private?

A

Ought reasonably to expect, this is an objective test.

40
Q

What is trespass surveillance?

A

Surveillance that involves trespass onto land or trespass to goods.

Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.

Interception devices are restricted to serious offences only, 7 years or more).

41
Q

What is the definition of curtilage ?

A

Land immediately surrounding a house or dwelling, including any closely associated building and structures, but excluding any associated “open fields beyond”.

42
Q

Visual surveillance device within the curtilage of private property is restricted, what are the restrictions?

A

Any observation of private activity in the curtilage of private premises, and recording of that observation, if any of the observation or recoding is by means of a visual surveillance device, and the duration of that observation for a single investigation or connected series exceeds,

(i) 3 hours in a total 24 hour period
(ii) 8 hours in total.

43
Q

What does interception mean?

A

Relates to private communications, includes LISTEN, HEAR, LISTEN TO, RECORD, MONITOR, ACQUIRE OR RECEIVE the communication either:

  • when it is taking place
  • what it is in transit
44
Q

What is a interception device?

A

(a) means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to intercept or record a private communication; but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.

45
Q

What are the limits to using an interception device?

A

Only for gathering EM relating to:

  • Offence punishable by 7 years imprisonment or more
  • identified Arms Act 1983 offences
  • identified psychoactive substances act 2013 offences.
46
Q

What is a voluntary oral communication?

A

Voluntary oral communication is:

  • Communication between one or more persons where at least one party in the communications gives their consent for the communication to be recorded (S.47).

There is no requirement for a SDW to intercept and record voluntary oral communication.

47
Q

What is a tracking device? important to know

A

(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.

A SDW may be used for a tracking device for ANY OFFENCE PUNISHABLE BY IMPRISONMENT.

48
Q

S.48 Discusses situations which a SDW need not be obtained what are these?

A

INGREDIENT - Entitled to apply

INGREDIENT - Impractical in the circs

49
Q

Surveillance without warrant in situations of emergency or urgency is permitted only where the “entitled to apply” and “impractical in the circs’ apply and the suspected offence has been, is being, or is about to be committed and is?

A
  • Punishable 14 years imprisonment or more
  • believe SDW would obtain EM in relation to the offence of: an Arms Act 1983 offence:
  • or person by reason of their physical or mental condition is incapable of having proper control or the arms or may kill or cause bodily injury to any person.
  • Domestic violence act 1995, protection order or PSO is in force against the person.
  • grounds to make application against him or her for a protection order.
  • a drug offence OR
    There is a situation which is:
  • likely to cause injury/serious property loss/damage and surveillance is necessary to prevent the offending from being commited or continued.
  • presenting risk to life and safety and surveillance is necessary as emergency response (s.14).
50
Q

What is the warrantless period for a SDW?

A

Not exceeding 48 hours.

51
Q

Who’s approval must you get for a interception device in a emergency situation?

A

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.
52
Q

What are your reporting requirements when use of a surveillance device for urgency or emergency? important to know

A

Section 60:
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.

53
Q

What is the period in which a SDW can be issued?

A

No more the 60 days, then another application will need to be made, there is no renewal under the act.

S & S 2012 (8 decks)

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