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