S&S Flashcards
Reasonable Grounds to Suspect (RGTS)
Reasonable grounds to suspect (RGTS) means having a sound basis for suspecting that a situation or circumstance exists.
Example:You enter a house or vehicle because you suspect an offence has been, is being, or is about to be committed there.
Reasonable Grounds to Believe (RGTB)
Reasonable Grounds to Believe (RGTB) means having a sound basis for believing that a situation or circumstance exists.
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.
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? And you may?
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.
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.
What is the Purpose of the Act under Section 5?
To facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values by:
Modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies
Ensuring investigative tools are effective and adequate for law enforcement needs.
Providing rules that recognise the importance of the rights and entitlements affirmed in other enactments
How do you comply with the S&S Act?
To meet its objectives and obligations when carrying out entries, searches, inspections, productions, examinations, seizures, road blocks and stopping vehicles, Police will:
satisfy requirements detailed in the Act (e.g. notice and inventory requirements after search or seizure)
provide appropriate announcements and identification in the exercise of those powers
only seize what Police are lawfully entitled to seize
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
ensure it has a lawful authority to conduct such activities and exercise any other incidental power in relation to those activities, including the use of force
Lawful and Reasonable
What is a Lawful search?
Under the Search and Surveillance Act a lawful search is a search that is conducted:
* with a search warrant, or
* under a warrant-less search power, or
* with the person’s consent
Lawful and Reasonable
What is a Reasonable search?
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 ( right to be secure against unreasonable search or seizure) and considers factors such as:
the nature of the search
how intrusive the search is
where and when the search takes place.
Practicable in the circumstances…
What must you consider when considering using a warrantless search power?
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 when deciding between a search warrant vs a warrantless power 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…
Search Options….
If it is not practicable in the circumstances to apply for a search warrant, there may be two other options available to you…
earch 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.
Why use a search warrant?
3 Reasons…
Ensures judicial oversight
Provides greater protection for Police and the public
Requires recording and reporting of results
To search by warrant requires participation in an end-to-end process. This process provides a series of checks and balances to protect both the Police and the public.
The process moves from initial approval to application, authorisation, execution and on to final reporting of search warrant outcomes. Organisational accountability is maintained by reporting to Parliament and if required to issuing officers.
Which Sections of the SASA cover consent searches?
AND REMEMBER…
Sections 91- 96 of the Search and Surveillance Act cover consent searches.
Remember: If you have a search power available to you (either warrant or warrantless) then you should use that power. If you do not, then a search by consent may be available to you.
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.
Undertaking a consent search…
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.
When can a person withdraw consent from a consent search of themselves, place, vehicle, or thing in their control?
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.
Make sure you follow good practice requirements and record your grounds for requesting a consent search and make notes about the search in your notebook.
What are some other rules regarding consent searches? (Age)
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.
CADD - What is Evidential Material ?
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.
Explain what Tangible and Intangible Mean?
Tangible
According to the Oxford Dictionary, tangible means something that may be touched.
Intangible
According to the Oxford Dictionary, intangible means ‘unable to be touched; not having physical presence’.
Section 97 of the Search and Surveillance Act provides examples of intangible things, e.g. an email address or access information to an Internet data storage facility.
When deciding if you should use a warrantless power, amongst other things you should consider if there is a possibility that evidential material will be subject to CADD…
What does CADD stand for…?
Concealed
Altered
Damaged
Destroyed
You must be able to explain your RGTB that the evidential material you are searching for will be subject to CADD.
What are some examples of the different terms in CADD?
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
Obligation: Identification
Section 131 SASA 2012
Obligation
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)
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).
Obligation: Reason (+ also)
Section 131 SASA 2012
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)
Obligation Notice.
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. You must:
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
Exceptions to Section 131 SASA 2012 identification and notice…
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.
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 (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…
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
What if your search is impeded?
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.
Explain Sections 116, 118, 119, and 120…
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.
AWOCA…
If a person resists a search, use the AWOCA process, what is AWOCA?
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
You can then carry out a section 85 (rub down) or section 88 (warrantless search of arrested or detained person) search.
Special Rules For Searching People…
125(1)(i) - You can search any item that the person is wearing, carrying, has in their physical possession or immediate control.
125(1)(j) - 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, and
You may also seize any item that may be lawfully seized even if it was not the subject of your search. Remember to promptly provide an inventory of these items on the POL268 form.
Special Rules For Searching People…
What manner must a search be conducted with ?
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.
What if a Detained person tries to leave or person arrives at search place?
Section 118(4) =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.
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)).
What are two examples of Fresh Pursuit under section 120(1)(b) SASA 2012?
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)).
Priviledged Material…
What does it allow the holder of it to do?
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.
What are some forms of priviledged material?
Recognised privileged material includes material gained through communication with:
* legal advisers
* ministers of religion
* medical practitioners
* clinical psychologists
* informers (informants)
* journalists
Privilege – practical procedures
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 (especially if you have RGTB anything discovered during the search may be priviledged).
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.
Privilege – practical procedures
What should you do if you are expecting a claim of 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.
What does Section 21 of the NZBORA 1990 State?
Everyone has the right to privacy in their own home and the right to refuse entry (section 21 New Zealand Bill of Rights Act 1990).
Entering someone’s home (or business premises) without invitation is an invasion of privacy.
A valid search warrant provides legal authority to enter any place, vehicle or other thing to search for and seize specified evidential material.
What are the Key Steps in the Search Warrant Process?
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
Practicable in the Circumstances?
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)
secure a scene while you apply for a search warrant for a maximum period of 6 hours (section 117).
What may the three options for a warrant application help you manage?
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.
Before making an on-line application…
Before commencing to make an application for a search warrant, you must:
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.
Have checked the target/s history in NIA for other search warrant applications / outcomes.
Have assessed the risks associated with executing the search warrant.
Have obtained initial approval from a supervisor at or above the rank of sergeant to proceed with the on-line application.
Risk assessments…
Any search is inherently risky. These risks must be:
identified
assessed
considered in planning how you execute the search warrant
The risks must be assessed before the application is approved and again before a search warrant is executed.
A Planned Action Risk Assessment and CARD prompt must be completed and TENR applied to assess…
Threat
Exposure
Necessity
Response (measures to reduce risk)
Secure address – search warrant pending – section 117
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.
What is another situation where this special power 117 may be used?
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
Who can issue a search warrant?
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
When will a search warrant be authorised?
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
When the search warrant application is refused what should you do?
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
When the search warrant application is refused and issues raised cannot be addressed what should you do?
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
Who may execute a search warrant?
The person to whom it is directed or any constable.
How long is a search warrant valid?
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.
When can a search warrant be executed?
at any time that is reasonable under the circumstances, or
* at a restricted time required by the Issuing Officer as a condition of execution.
When is a search warrant considered executed?
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.
How often can a search warrant be executed?
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.
Safety and search warrant briefings…
You will have identified risks involved in executing the search warrant when you completed the Planned Action Risk Assessment and CARD prompt for the application process.
However, risk assessment must be on-going and in preparing a search warrant execution plan you must:
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
Application to postpone compliance with notice obligations…
What situation would you be able to apply to postpone?
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 when?
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.
The safety of staff executing a search warrant (and of any other people who may be present at the target) is a primary concern.
When executing a search warrant you may be required to use reasonable force to:
enter the place, vehicle or other thing (section 131)
search (on property only) and seize (section 110)
* carry out a search of a person (section 125)
Remember to use AWOCA and TENR as required.
All staff involved in executing a search warrant should be fully briefed. Following GSMEAC allows all the key points to be covered.
GSM…
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
All staff involved in executing a search warrant should be fully briefed. Following GSMEAC allows all the key points to be covered.
EAC…
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
* travel to and from the place to be searched under warrant
* timing of the search warrant execution
* recording of evidential material seized
Communication
* cell-phone numbers and radio channels
* before executing the search warrant
* during execution of the search warrant
* debrief
Holding a search warrant briefing…
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.
Obligations and additional powers when executing a search warrant…
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)
Obligations and additional powers when executing a search warrant…
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)
Obligation –entry
Before or when you enter a place or vehicle to execute a search warrant you must:
dentify yourself by name or unique identifier (eg: QID)
provide evidence of identity if not in uniform
state the name of the Act and reason for your search
announce your intention to enter and search
provide a copy of the search warrant
Where occupants are detained for the purpose of search you must advise them of the caution (Bill of Rights).
When can you delay giving the list of evidential material sought when executing a search warrant?
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.
What is the process when no one is home at the address to be searched?
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.
Drug searches and stopping vehicles…
Executing a search warrant for drugs
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.
identify yourself by name or unique number
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
produce evidence of identity if not in uniform
Executing a search warrant for drugs
When you exercise a power to search a person you may..(Start to finish)
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.
Stopping a vehicle for the purposes of search
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
When executing a search warrant for a vehicle on private property, what can you do?
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.
Items of uncertain status and in plain view
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)
Items of uncertain status (section 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:
drugs that require analysis at a laboratory
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
tems in plain view (section 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.
Introduction – Production Orders
What should it be?(For police)
What should it not make? (For the provider)
Using a production order should be an effective investigative tool and the offence(s) under investigation be sufficiently serious to justify the resource.
The information sought should not make unreasonable or unnecessary demands on a provider of information, whom the order is against. Stipulate a reasonable delivery period (not less than a week).
What is a production order?
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).
Production Order versus Search Warrant
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.
Duration of a Production Order?
Section 76…
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).
Who may apply for a Production Order?
Section 71(1)…
Any enforcement officer may apply to an issuing officer for a production order. (Section 71(1).
Who must you seek approval from to apply for a Production Order? (To Telecommunications providers)
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
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).
Approval to apply for Production order for media organisation…
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.
Approval to apply for a Production Order,
Where practicable obtain what authority?
Where practicable obtain written authority to make an application for a production order from a constable of or above the position level of sergeant where practicable.
Grounds for applying for a Production Order…
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).
How to apply for a production order..
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
Oral applications for a Production Order…
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))
What 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
Using hearsay evidence in production order applications…
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.
Where the execution of a search warrant or other statutory power is justified by the outcome of its execution, and the resulting loss or damage is suffered by the subject of the search or process..
In what circumstances will compensation seldom be paid?
Where the execution of a search warrant or other statutory power is justified by the outcome of its execution, and the resulting loss or damage is suffered by the subject of the search or process, compensation will seldom be paid.
Example…
A search warrant is executed at an address in respect of cannabis cultivation, where plants are found and the owner is aware of the cultivation or is responsible for it. Compensation for justifiable damage will not be paid.
Where the execution of a search warrant or other statutory power is justified by the outcome of its execution, and the resulting loss or damage is suffered by the subject of the search or process..
In what circumstances will compensation unlikely be paid? (considered on a case-by-case basis).
Where the execution of a search warrant or use of other statutory power is not justified by the outcome of its execution, but the grounds for the execution were sound, compensation is unlikely to be paid. However, any related claims will be considered on a case-by-case basis.
Example:
A search warrant is executed at an address where the occupants are believed to have been dealing methamphetamine. The grounds for the search warrant included credible and corroborated information from more than one informant. No illicit drugs are located. Compensation is unlikely to be paid for justifiable damage.
With regards to compensation due to damage suffered as part of the search process.
Discuss damage caused to rental properties
Landlords, and those who have boarders living in a property belonging to them, will generally carry the risk in respect of illegal activity taking place on the property. Where a search warrant or use of other statutory power is justified by the outcome of its execution, or the grounds for execution were sound, the compensation for justifiable damage will not generally be available. Owner building insurance may cover any repairs.
Where the execution of a search warrant or other statutory power is justified by the outcome of its execution, and the resulting loss or damage is suffered by the subject of the search or process..
With reference to unreasonable searches or unjustified damage In what circumstances may compensation be paid?
The method of entry and the manner in which the search is conducted must be reasonable in all the circumstances, e.g. if the door is unlocked there is no justification in breaking it down. In cases where unjustified damage is caused in the execution of a search warrant or statutory power, compensation may be available in respect of any claim.
Where the execution of a search warrant or other statutory power is justified by the outcome of its execution, and the resulting loss or damage is suffered by the subject of the search or process..
With reference to mistakes when executing search powers, will compensation be available?
In cases where a mistake is made in the execution of a search warrant or statutory power, for example, where a search warrant is executed at a wrong address, compensation is likely to be available in respect of any claim.
With reference to compensation will entry under Section 14 of the SASA 2012 result in compensation being available?
If a constable enters a property under s14, Search and Surveillance Act 2012 (Warrantless entry to prevent offence or respond to risk to life or safety), compensation will seldom be paid for any damage incurred in forcing entry. The responsibility for the repairs lies with the owner or occupier. Again owner building insurance may cover any repairs.
What is the policy for Police employees when faced with rectifying damage caused?
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.
What is the correct procedure for a claim in regards to a claim for property damage?
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.
Securing Premises…
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.
What is Police Surveillance?
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
What does the S&S Act 2012 mean when it comes to Police Surveillance?
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
Surveillance risk assessment…
Any surveillance work (with or without warrant) is inherently risky. These risks must be…
identified
* assessed
* considered in planning before surveillance is executed
APPLY TENR…
Thorough risk assessment is a component of the surveillance device warrant application process and must be repeated before a surveillance device warrant is executed.
What is a surveillance device?
A surveillance device is a device which assists and enhances your normal capabilities to carry out the surveillance.
A surveillance device may be any one or more of the following kinds of device.
a visual surveillance device
an interception device
a tracking device
What is a visual surveillance device?
Visual surveillance device –
(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.
Section 46(c) of the SASA 2012….
Activities for which surveillance device warrant required
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.
Some exceptions apply to the requirement to obtain a surveillance device warrant for the use of a visual surveillance device.
These are:
* situations of emergency or urgency (although use of a surveillance device in these situations must still be reported in the on-line system); and
* activities that do not require a warrant
Where surveillance with a surveillance device is concerned, the Search and Surveillance Act restricts surveillance activity in places an individual ‘ought reasonably to expect’ are private. Those places include…
Land (in private ownership) and any private premises on that land, and ‘goods’.
Goods generally mean chattels and include vehicles and other tangible belongings.
Surveillance is unlawful if it involves a trespass, which is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by a surveillance device warrant (Exceptions apply in situations of emergency or urgency).
What is a private premise?
Private premises means a private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises.
What is a Non-private premises?
Non-private premises means premises, or part of a 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.
Note: Not all parts of hospitals, bus stations etc are non-private premises. Areas that would be considered as private are:
* hospitals – theatres, consulting rooms
* railway station – office area , staff meal room
What is the definition of private activity?
The definition of private activity acknowledges fundamental human rights. A participant in an activity can reasonably expect the activity is private, if it is
carried out in private premises.
But – ‘ought reasonably to expect’ must be an objective test i.e. what any person would expect.
Where private activities occur is of key importance.
Consider – would you expect your participation in the following activities to be private?
* sleeping in a hotel room
* planting in your back garden
* trying on clothes in a changing room
Be aware – private activities may occur in places that do not fit the definition of private premises.
What does private communication mean?
Means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication.
What does not private communication not include?
Does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so.
Reasonable Expectation of Privacy when communicating?
Note that any person can reasonably expect their communication to be private when it occurs in circumstances where they have the right to expect it will not be intercepted or recorded.
Where reasonable expectations of privacy are interfered with or intruded upon by the use of an interception device, a surveillance device warrant is required.
What does Trespass Surveillance mean…?
means surveillance that involves trespass onto land or trespass to goods.
Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.
For surveillance purposes, if you do not have consent to enter onto private property, then you are trespassing.
What are the Restrictions on use of surveillance devices warrants?
Any warrant application to use a visual surveillance device for trespass surveillance will only be authorised for obtaining evidential material for serious offences.
Any warrant application to use an interception device, whether or not a trespass surveillance occurs, is restricted to obtaining evidential material for serious offences only.
(A serious offence is an offence punishable by 7 years imprisonment or more).
Section 46 – Activities for which surveillance device warrant required
(d) Use of a surveillance device that involves trespass onto private property
What is curtilage?
Means the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’.
It defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.
Activities that do not require a warrant cover the use of a visual surveillance device within the curtilage of private property but usage is restricted to time limitations.
Explanantion of Curtilage…
The curtilage of a dwelling is the ground between the fence, garden, hedge or mowed grass border and the dwelling. It can be taken to mean a garden, yard or field, or other piece of ground or building near to or belonging to a house.
The curtilage of a dwelling does not necessarily equate with the boundary of the property, although in the vast majority of cases the boundary and the curtilage will coincide exactly. Thus, the curtilage of a suburban house is likely to be clearly defined by a fenceline whereas on a farm, the house and curtilage will form a small part of the whole property.
Curtilage Limitations…
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
Curtilage Limitations…
Explanation and example…
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.
Example:
Constable Brown receives information a man is growing cannabis in an area behind his house. The information is not substantiated and Constable Brown decides to begin his investigation by viewing the property through his binoculars from a nearby hill to determine if a cannabis plot can be seen on the property.
What does interception mean?
Intercept in relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communication either –
* when it is taking place, or
* while it is in transit
Whats an interception device?
Interception device –
(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.
Note: A surveillance device warrant is required to use an interception device to intercept a private communication.
Section 46 – Activities for which surveillance device warrant required
(a) Use of an interception device to intercept private communications
Limitations on use of an interception device…
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
What is a voluntary oral communication?
Provide 2 examples…
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.
What is a tracking device?
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.
Does the use of a tracking device requires a surveillance device warrant?
Section 46 SASA 2012 (b)…
YES
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.
Specialist Support…
When may tracking devices only be used?
Tracking devices may only be used with the assistance of specialist squads.
Covert surveillance using sophisticated electronic surveillance devices must be undertaken only by specialist trained officers.
Specialist trained staff and surveillance squads are established at a number of main centres and their services are available to districts on request.
