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Search and Surveillance > S&S > Flashcards

S&S Flashcards

1
Q

What does RGTS mean?

A

Reasonable grounds to suspect - Means having a sound basis for suspecting that a situation or circumstances exists.

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2
Q

What does RGTB mean?

A

Reasonable grounds to believe - Means having a sound basis for believing that a situation or circumstances exists.

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3
Q

Lawful and reasonable searches, meanings

A

Lawful is a search that is conducted, with a search warrant, under a warrantless search power or with a persons consent. A reasonable search is a search that , complies with section 21 of BOR Act, considers the nature of the search, how intrusive the search is, where and when the search takes place.

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4
Q

What to consider when deciding on applying for SW or not?

A
  • Is there time to gain approval and apply for a search warrant.
  • Can the scene be secured (under 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
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5
Q

What sections cover consent searches, and what must you determine before conducting a consent search

A

91-96 of S&S Act 2012.
Must determine that search is for one of the following reasons:
- prevent commission of an offence
- investigate whether an offence has been committed
- protect life or property
- prevent injury or harm

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6
Q

What must you advise someone before consent search?

A

Of the reason for the proposed search, and that they may consent or refuse to consent to the search.

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7
Q

Can a person under 14 consent to a search?

A

They cannot consent to the search of a place or vehicle (unless they are found driving with no passenger of or over 14 years of age)

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8
Q

What are your obligations when searching a vehicle place or thing? And what section

A

Section 131.
Before initial entry, you must:
- Identify yourself by name or QID
- Announce your intention to enter and search
- State the name of the act
- Give notice by providing copy of the search warrant
- When detaining for search, give BOR

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9
Q

If using warrantless search power, you must state the reason for your search and….

A
  • Provide a copy of the search warrant or warrantless search notice to occupier (POL 1275), and provide inventory of items seized.
  • Report your use of certain powers (S169)
  • Consider privilege (S136 - 147)
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10
Q

Within how many days must you provide copy of search warrant and 268 and occupants not present?

A

Within 7 days after search

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11
Q

What does Section 110 allow you to do?

A

Allows you to use additional powers when searching place, vehicle or other thing, for example:

  • Enter and search V, P or T
  • Search any item or items found in that V, P or T
  • Use reasonable force in respect of any property for the purpose of carrying out search and lawful seizure
  • Seize anything that is subject of the search or anything else that may be lawfully seized
  • bring and use any equipment found on the V, P or T
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12
Q

Powers to exclude

A

If search is impeded by any person or you have RGTB that any person would impede or obstruct search, under 116 you can:

  • Exclude that person from the P, V, or T being searched
  • Give any reasonable direction to that person
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13
Q

Additional powers to use with either warrantless or warranted search

A

116 - Secure a P, V or T to be searched and exclude any person
118 - Detain people when searching P and V to determine if connection between person at the place or in or on the vehicle and the object of the search.
119 - Search people found when searching P and V 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
120 - If you are in fresh pursuit and with RGTB that relevant evidential material is still on the person, you have power to enter any place to apprehend the person and search the person or vehicle

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14
Q

What does section 125 entail

A
  • Can search any item that the person is wearing, carrying or has in immediate control
  • Seize any item that the person is wearing etc
  • Seize any item that may be lawfully seized even if it wasn’t the subject of your search
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15
Q

Explain privileged material

A

Privilege allows holders of particular information to refuse to disclose this information. No privilege applies if information is made or received for dishonest purpose or to enable or aid any person to commit an offence

Recognised privileged material includes material gained through communication with:

  • legal advisers
  • ministers of religion
  • medical practitioners
  • informants
  • journalists
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16
Q

What to do when a search involves privileged material?

A

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
  • That person must provide you with a list of documents which they claim are privileged.
  • Provide POL 268 listing all documents seized, show to person present, invite them to check for accuracy, leave a copy with them
  • Person is allowed to make copy of document before it is taken, and they may object to seizure of any document
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17
Q

What does a search warrant allow you to do?

A

Provides legal authority to enter any place, vehicle or other thing to search for and seize specified evidential material

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18
Q

Alternative methods to apply for search warrant

A
  • Apply for a search warrant orally
  • Apply for a search warrant without approaching an issuing officer in person (by using a phone)
  • Secure a scene (s117) whilst you apply for a search warrant (Max 6 hours)
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19
Q

4 things to do before making online application

A

1 - RGTS that offence punishable by imprisonment has, will or is being committed
RGTB that search will find evidential material in respect of the offence
2 - Check targets NIA for other search warrants
3 - Assessed the risks associated with executing the search warrant
4 - Have obtained approval from a supervisor to proceed with application

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20
Q

What to do if children will be at house during SW?

A
  • Search the house during school hours

- Allocating someone to search for the children and remove them to a safe place

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21
Q

What does section 117 allow you to do?

A

If SW application is or is about to be 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 SW is 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.
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22
Q

Section 117 can be used until 1 of the 3 following things occur…

A

1 - 6 hours has passed
2 - The warrant is available for execution
3 - The application for the search warrant is refused

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23
Q

Who can issue a SW?

A

Issuing Officer may be:
- District or High Court judge

Any other person authorised by the Attorney General, such as:

  • JP
  • Community Magistrate
  • Registrar
  • Deputy Registrar
24
Q

What to do when SW application is refused

A
  • Record issuing officers reasons for refusing to sign
  • consider issues and redraft application
  • resubmit to same issuing officer
25
Q

How long is a search warrant valid?

A

No more than 14 days from date of issue, or no more than 30 days if you have justified this to the Issuing Officer.

26
Q

When is a search warrant considered executed?

A

When you or anyone assisting you:

  • have seized the evidential material specified in the search warrant or,
  • leave the place, vehicle or other thing to be searched and do not return within 4 hours
27
Q

Applying to postpone notice obligations

A

Under Section 131, you must provide copy of SW and inventory of items seized.

If providing a copy of SW or inventory would:
- Endanger the safety of any person or
- Prejudice on going investigations
You may apply to a judge to postpone your obligation.

An application to postpone is made under 134 of the act and should be presented to the judge:

  • at the time of the SW application or,
  • before 7 days has passed after SW execution

Judge can postpone obligations for up to 12 months

28
Q

Obligations and additional powers when executing SW

A

Rules and obligations:

  • identification and notice requirements when searching places, vehicles and other things (s131)
  • Rules for searching people (s125)
  • Powers incidental to search (s110)
  • reporting (s169)

Additional powers

  • securing a place, vehicle or other thing to be searched and excluding any person (s116)
  • powers of detention incidental to search of places and vehicle (s118)
  • powers of search by a person who has a power of arrest (s119)
  • stopping vehicles for search (s121)
  • moving vehicles for search/safekeeping (s122)
  • seizure of items in plain view (s123)
  • Items of uncertain status may be seized (s112)
29
Q

What can you do when executing a SW for drugs?

A

If SW application offence was offence against MODA 1975, you may search any person found in the place or vehicle you are searching (s19)

30
Q

What can you do when exercising a power to search a person?

A
  • Detain the person to enable search to be carried out
  • use force that is reasonable for the purposes of the search
  • search any item that the person is wearing, carrying or is in the persons physical possession or immediate control
  • seize anything carried by or in their physical possession if the thing is subject of the search or may be lawfully seized
31
Q

What does S127 allow you to do?

A

Allows you to enter any place:

  • To locate the vehicle to execute the search warrant if
  • You have RGTB that the vehicle is there.
32
Q

Items in plain view

A

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 SW or other search power.

33
Q

Duration of a production order?

A

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)

34
Q

Grounds for applying for a production order?

A

If you have reasonable grounds to:

  • suspect that offence has been, is being or will be committed and,
  • you believe that the documents sought by the proposed order,
  • constitute evidential material in respect of the offence,
  • are in the possession or under the control of the person against whom the order is sought, or will come into their possession
35
Q

Using hearsay evidence in production order application

A

It can be used if it is highly reliable. Indicate reliability by:

  • sufficient info to prove reliability
  • the informants reliability and whether they have given reliable info in the past
  • whether the info has been confirmed by other means
36
Q

2 situations where compensation for damage will not be paid

A

1 - Where the execution of a SW 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 not be paid. ie, SW for cannabis where plants are found and owner is aware

2 - Where the execution of a SW or other power is not justified by outcome of its execution, but the grounds for the execution were sound, compensation is unlikely to be paid

3 - If constable enters under S14 (entry to prevent offence or respond to risk to life or safety), compensation will seldom be paid.

37
Q

2 situations where compensation for damage may be paid

A

1 - Unreasonable searches or unjustified damage

2 - Mistakes when search warrants or powers are executed. SW is executed at the wrong address etc

38
Q

What needs to be in report when claim for compensation has been received?

A
  • Circumstances in which SW or other power were executed
  • grounds for the execution
  • damage caused and the associated circumstances
  • the outcome of the search warrant or stat power being executed
  • details regarding the owner of the property and the occupier or user of the property
  • nature and basis of the claim
  • any steps taken by Police or the owner to prevent further loss or damage
39
Q

Surveillance device definition

A

A surveillance device is a device which assists and enhances your normal capabilities to carry out surveillance.

40
Q

Types of surveillance devices

A
  • a visual surveillance device
  • an interception device
  • a tracking device
41
Q

What is a visual surveillance device?

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.

42
Q

When is surveillance device warrant required in relation to visual surveillance devices?

A

Section 46
c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device

Exceptions to the rule of needing a SDW

  • situations of emergency or urgency
  • activities that do not require a warrant
43
Q

Definition private premises

A

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

44
Q

Definition non-private premises

A

Premises that members of public are frequently permitted to have access. Hospital, bus and railway station, airport or shop. Not all areas in the above are non-private, ie operating theatres.

45
Q

What is trespass surveillance?

A

Surveillance that involves trespass onto land or trespass to goods. It occurs the moment an enforcement officer steps onto private property without consent.

46
Q

Restrictions on SDW’s

A

Warrant application to use a visual surveillance device for trespass surveillance will only be authorised for obtaining evidential material for serious offences (7 years or more)

Warrant application to use a interception device, whether or not a trespass occurs, will only be authorised for obtaining evidential material for serious offences (7 years or more)

47
Q

Definition of curtilage?

A

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.

48
Q

Limitations of curtilage surveillance

A

You can observe the curtilage of a property without a warrant using a visual surveillance device, for the purposes of a single investigation, or connected investigations, for 3 hours in any total 24 hour period, or 8 hours in total.

49
Q

Definition of interception

A

Intercept in relation to private communication, includes hearing, listening, record, monitor or receive the communication either when it is taking place, or while it is in transit

50
Q

Definition of 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
b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.

51
Q

A SDW will only be authorised for use of an interception device for gathering evidential material for….

A
  • offences punishable by 7 or more years of imprisonment
  • identified Arms Act 1983 offences
  • identified Pyschoactive Substances Act 2013 offences
52
Q

Is a SDW required when one person is consenting to the communication being recorded?

A

No, under Section 47 there is no requirement for an SDW if one person has given consent, ie wearing a wire

53
Q

What is a tracking device?

A

A device that may be used to help ascertain by electronic or other means, either or both of the following:

  • the location of a thing or a person
  • whether a thing has been opened, tampered with, or in some other way dealt with but,
  • does not include a vehicle or other means of transport, such as a boat or helicopter

SDW required for tracking device. Can be for any offence punishable by imprisonment

54
Q

What are the two ingredients needed to use Section 48?

A

Ingredient - Entitled to apply
Means - You would be entitled to make an application for a SDW as the situation is one of serious criminal activity

Ingredient - Impracticable in the circumstances
Means - You need to use a device urgently as it is not immediately practicable to obtain a SDW

55
Q

Situations where you can use Section 48?

A
  • 14 years offence and you believe that use of SDW would obtain evidential material
  • Section 14, offence likely to cause injury to any person, or serious loss or damage of property or there is a risk to the life or safety of any person that requires an emergency response.
  • Arms Act Offences
  • Drug offence

SDW can only be in place for max 60 days. Need to apply for new warrant after that period

Search and Surveillance (2 decks)

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