S & S ACT 2012 Flashcards
Privileged material
Privileged material
Sections 136 - 147
Privilege allows the holder of particular information to refuse to disclose this information. No privilege applies if info is for dishonest purposes or to aid a person to commit an offence. Recognised privileged material includes material gained through communication with:
Legal advisors. Ministers of religion. Clinical psychologist. Informers ( informants). Journalist.
CADD
Concealed. Buy 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.
Evidential material tangible and intangible
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 S&S ACT provides examples of intangible things, EG an email address or access information to an Internet data storage facility.
RGTB
Reasonable grounds to believe means having a sound basis for believing that a situation or circumstance exist. Example you enter and search a house or vehicle or search a person because you believe that a person will find the evidential material you are looking for.
RGTS
Reasonable grounds to suspect 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.
Lawful and reasonable
Under the search and surveillance act a lawful search is a search that is conducted with a warrant or under a warrantless search, or with the person’s consent. Under the search and surveillance act a reasonable search is a search that complies with section 21 of New Zealand Bill of Rights Act 1990 and considers factors such as the nature of the search how intrusive the search is, where and when the search takes place.
Surveillance risk assessment
Any surveillance work with or without warrant is inherently risky. These risk must be
- identified
- assessed
- considered in planning before surveillance is executed. Apply t e n r to assess
- threat
- exposure
- necessity
- response (measures to reduce risk) .
Section 46(e)
A visual surveillance device may be lawfully used without warrant together evidential material for a serious offence if it’s usage does not exceed the established time limits:
- 3 hours in any total 24 hour period; or
- 8 hours in total
A surveillance device warrant is required if the time limits are exceeded.
Section 46(d)
Use of a surveillance device that involves trespass to land or trespass to goods.
A surveillance device warrant is required.
Section 46(c)
Observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.
A surveillance device warrant is required.
Section 46(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.
A surveillance device warrant is required.
Section 46(a)
Use of an interception device to intercept a private communication.
A surveillance device warrant is required.
Production order
Section 74 of the search and surveillance Act 2012.
Section 169
Reporting
Section 110
Powers incidental to search.
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 it’s 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 example computer data
- take photos, sound and video recordings and drawings
A w o c a
Ask greet the person and identify yourself ask the person to comply with your search.
Why give the reasons for your actions intention to search under search and surveillance Act 2012 based on belief or Suspicion.
Options present options allow search or be arrested for obstruction.
Confirm that the person understands.
Action take action arrest for obstruction.
No one at the place where the search is to be conducted
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 pol 268. This must be as soon as possible after the search and must be provided within 7 days of completion of the search.
Section 112
Items of uncertain status may be seized.
Section 123
Seizure of items in plain view.
Section 122
Moving vehicles for search or safekeeping.
Section 121
Stopping vehicles for search 1 without warrant 2 with warrant 3 give reason for search give the enactment of the ACT if not in uniform produce police identification state your name qid Police Station no need to give rain if impracticable.
Section 119
You can search people found when searching places and vehicles if you have reasonable grounds to believe that evidential material that is the object of the search is on that person (119(1))
or if you have reasonable grounds to suspect 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. (119 (2)(a) and (b)).
Section 118
Powers of detention incidental to search of places or vehicles.
(118(4)) if a detained person tries to leave you can use reasonable force to keep them detained.
(118(1)) detain a person who arrives to the place or vehicle to determine if there is a connection between them and the object of your search.
Section 116
Securing a place, vehicle, or other thing to be searched and excluding any person from there.
(116(1)(b)) exclude that person from the search scene if you have reasonable grounds to believe the person will obstruct or hinder your powers.
Section 117
Enter and secure a place, vehicle or other thing, and secure any item found there, and direct any person to assist with entry in securing the place or vehicle or securing items in it. It is not a search power. You can do the above if you have reasonable grounds to believe that evidential material may be concealed altered damaged destroyed or removed before the search warrant can be issued. Secure address secure warrant pending.
Section 125
The rules for searching people. You must give rain. In addition you have the power to detain the person to enable the search to be carried out.
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.
Section 21
Warrantless searches of people found in or on places or vehicles. A Constable conducting a search of a place or vehicle under section 20 May, without a warrant search any person found in or on the place or vehicle.
Side note section 21 relates to section 20. Section 20 relates to offences against the misuse of drugs Act 1975.
Section 7
Entry without warrant to arrest person unlawfully at large.
A Constable May enter a place or vehicle without warrant to search for and arrest a person if the constable has reasonable grounds to suspect that a person is unlawfully at large, and believe that the person is there.
Section 8
Entry without warrant to avoid loss of a offender or evidential material.
And the circumstances set out in subsection 2, or Constable may enter place or vehicle without a warrant and search for and arrest a person that the constable suspects has committed the offence.
2 suspects an imprisonable offence has been committed believe the person is there if not done immediately the person will leave there avoiding arrest and evidential material will be concealed altered damaged or destroyed.
Key steps/ 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
Consent search
Search by consent sections 91 through to 96 of search and surveillance Act 2012.
You must determine the search to prevent the commission of an offence to investigate whether an offence has been committed to protect life or property to prevent harm or injury.
A consent search may be refused or withdrawn at any time. under the search and surveillance Act 2012 you do not have to report a consent search.
Be aware that there are other rules regarding consent search. 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 vehicles search.
Section 120
If you are in fresh pursuit and with reasonable grounds to believe 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.
(120(1)(b) you must have reasonable grounds to believe the evidential material you are searching for is still in the vehicle or on that person.
Why use a search power,?
Using a search warrant
- Ensures judicial oversight
- Provides greater protection for police and the public
- Requires recording and reporting of results.
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 the search warrant considered executed
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.
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.
G s m e a c
Ground
- location to be searched
- address
- neighbours
Situation
- reason for seeking the search warrant
- background on any Suspects
Mission
- address
- suspects
- specific evidential material sought
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
Section 134
If providing a copy of the search warrant or inventory would :
- endanger the safety of any person, or
- prejudice ongoing 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:
- 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.
Under section 30 who can authorise a road block
A Constable who holds a level of position of sergeant or higher, and includes any constable who is acting in any such rank.
Section 31
The road block is valid for an initial period not exceeding 24 hours specified by the person giving the authorisation: and
May be renewed from time to time by a District Court Judge for a further period not exceeding 24 hours specified in writing by the Judge.
Who may apply for a production order
Any enforcement officer may apply to an issuing officer for a production order. Section 71 l(1).
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 visual surveillance device
(a) means any electronic, Mechanical, electromagnetic, optical, or electro optical instruments, 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 know better than normal vision.
Interception device
(a) means any electronic, mechanical, electromagnetic, optical or electro optical instruments, 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 know better than normal hearing.
Tracking device
(a) means a device that, may be used to help ascertain, buy electronic or other means, either or both of the following:
(I) the location of a thing or person;
(ii) weather a thing has been opened, tampered with, or in some other way dealt with; but
(b) that’s not include a vehicle or other means of Transport, such as a boat or helicopter.
Section 48
A surveillance device warrant need not be obtained for use of surveillance devices in some situations of emergency or urgency.
Section 48 acknowledges that in certain situations, Police may need to act immediately without warrant to use any one or more surveillance devices
2 key ingredients exist for any situation to be recognised as one of emergency or urgency.
Entitled to apply:
Means you would be entitled to make an application for a surveillance device warrant as the situation is one of a serious criminal activity.
Impracticable in the circumstances:
Means you need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant.
Surveillance without warrant and situations of emergency or urgency is permitted only where the above circumstances apply and the suspected offence has been, is being, or is about to be committed and is punishable by 14 years imprisonment or more and you believe that use of the surveillance device would obtain evidential material in relation to the offence.
An Arms act 1983 offence or a drug offence or a situation likely to cause an injury or serious property loss for / damage and surveillance is necessary to prevent offending from being committed or continuing or presenting list of life and safety and surveillance as necessary as an emergency response (section 14).
S. 21 Bill of Rights Act 1990
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, correspondence or otherwise.
Section 47
No warrant is required for the following activities.
- being lawfully in private premises
- recording what he or she sees or hears there without the use of a surveillance device
- covert audio recording of a voluntary oral communication between 2 or more persons made with consent by at least one of them
- activities carried out under an authorisation issued under part 4 of the intelligence and security act 2017
- activities carried out by an enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this act
Section 45
45(1) nothing in this subpart authorises any enforcement officer to undertake trespass surveillance (other than by means of a tracking device) except in order to obtain evidential material in relation to an offence -
(a) that is punishable by a term of imprisonment of 7 years or more; or
(b) against sections 44, 44A, 45, 50, 50 a, 50b, 50d, 51, 53a, 54, 54a, or 55 of the arms at 1983; or
(c) against section 25, 26, 70 psychoactive substances act 2013.
Section 130(1)
A person exercising a search power and respect of any data held in a computer system or other data storage device may require a specified person to provide access information and other information or assistance that is reasonable and necessary to allow the person exercising the search power to access that data.
Section 178
Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months who fails, without reasonable excuse, to assist a person exercising a search power when requested to do so under section 130(1).
Section 130(2)
A specified person may not be required under subsection 1 to give any information tending to incriminate the person.
Section 127
Search warrants to enter and search vehicles
If a search warrant is issued authorising the entry and search of a vehicle, the person executing this warrant May enter any place where the person has reasonable grounds to believe that the vehicle is for the purpose of locating it and searching it.
You are not required to specify the address or place.
Section 5
Purpose
The purpose of this act is 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 -
(a) modernising the law of search, seizure, and surveillance to take into account advances and technologies and to regulate the use of those Technologies; and
(b) providing rules that recognise the importance of the rights and entitlements affirmed in other enactments including the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the evidence Act 2006 ; and
(c) ensuring investigative tools are effective and adequate for law enforcement needs.
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).
Section 76
Duration of a production order
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).
Section 72
You may apply for 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 sort 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.
Who is an issuing officer
Issuing officers are the only people who May issue.
An issuing officer may be a district court judge, High Court judge.
Or any person authorised by the attorney general such as are Justice of the Peace, community magistrate, registrar, deputy registrar
Section 22
Warrantless power to search for controlled drugs and precursor substances if offence suspected at against misuse of drugs Act 1975
- a Constable may, in the circumstances set out in subsection 2, search a person without a warrant.
- The constable must have reasonable grounds for the following:
They believe the person is possession is in possession of a controlled drug specified or described in schedule 1 part 1 of schedule 2 part 1 of schedule 3 a precursor substance described in Part 3 of schedule 4
To suspect that an offence against misuse of drugs Act 1975 has been committed is being committed or about to be committed in respect of that controlled drug or precursor substance.
Section 49
Application for Surveillance Device Warrant
