S&S - Powers

Question 1

Section 7

Entry Without Warrant to Arrest Person Unlawfully at Large

Answer 1

A constable may enter a place or vehicle without warrant to search for and arrest a person if the constable has reasonable grounds—

(a) to suspect that a person is unlawfully at large; and
(b) to believe that the person is there.

Question 2

Section 8 – Entry without warrant to avoid loss of offender or evidential material

Answer 2

(1) In the circumstances set out in subsection (2), a constable may—

(a) enter a place or vehicle without a warrant; and
(b) search for and arrest a person that the constable suspects has committed the offence.

(2) The circumstances are that the constable has reasonable grounds—

(a) to suspect that the person has committed an offence that is punishable by imprisonment and for which he or she may be arrested without warrant; and
(b) to believe that the person is there; and
(c) to believe that, if entry is not effected immediately, either or both of the following may occur:

(i) the person will leave there to avoid arrest:
(ii) evidential material relating to the offence for which the person is to be arrested will be destroyed, concealed, altered, or damaged.

Question 3

Section 9 – Stopping a vehicle to find persons unlawfully at large or who have committed certain offences (imprisonable offences)

Answer 3

A constable may stop a vehicle without a warrant to arrest a person if the constable has reasonable grounds—

(a) to suspect that a person—
(i) is unlawfully at large; or
(ii) has committed an offence punishable by imprisonment; and

(b) to believe that the person is in or on the vehicle.

Question 4

Section 10 – Powers and duties of constable after vehicle stopped

Answer 4

Require – the person suspected of being unlawfully at large or having committed an offence punishable by imprisonment to supply all or any of his or her name, address, other contact details, and date of birth.

 Search – the vehicle for the person.

 Search – the vehicle for evidential material in relation to the offence the vehicle was stopped for if:

(i) the person has been arrested; or
(ii) is seen fleeing from the vehicle before he or she can be arrested.

Question 5

Section 15 – Entry without warrant to find and avoid loss of evidential material relating to certain offences

Answer 5

A constable may enter and search a place without a warrant if he or she has reasonable grounds—

(a) to suspect that an offence punishable by imprisonment for a term of 14 years or more has been committed, or is being committed, or is about to be committed; and
(b) to believe—

(i) that evidential material relating to the offence is in that place; and
(ii) that, if entry is delayed in order to obtain a search warrant, the evidential material will be destroyed, concealed, altered, or damaged.

Question 6

Section 16 – Searching people in public place without warrant for evidential material relating to certain offences

Answer 6

A constable may search a person without a warrant in a public place if the constable has reasonable grounds to believe that the person is in possession of evidential material relating to an offence punishable by imprisonment for a term of 14 years or more.

Question 7

Section 17 – Warrantless entry and search of vehicle for evidential material relating to certain offences

Answer 7

A constable may, without a warrant, enter and search a vehicle that is in a public place if he or she has reasonable grounds to believe that evidential material relating to an offence punishable by imprisonment for a term of 14 years or more is in or on the vehicle.

Question 8

Section 18 – Warrantless searches associated with arms

Answer 8

(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a person may, without a warrant, do any or all of the following:

(a) search the person:
(b) search any thing in the person’s possession or under his or her control (including a vehicle):
(c) enter a place or vehicle to carry out any activity under paragraph (a) or (b):
(d) seize and detain any arms found:
(e) seize and detain any licence under the Arms Act 1983 that is found.

(2) The circumstances are that the person is carrying arms, or is in possession of them, or has them under his or her control, and—
(a) he or she is in breach of the Arms Act 1983; or
(b) he or she, by reason of his or her physical or mental condition (however caused),—
(i) is incapable of having proper control of the arms; or
(ii) may kill or cause bodily injury to any person; or
(c) that, under the Domestic Violence Act 1995,—
(i) a protection order or a police safety order is in force against the person; or
(ii) there are grounds to make an application against him or her for a protection order.

(3) A constable may, without a warrant, enter a place or vehicle, search it, seize any arms or any licence under the Arms Act 1983 found there, and detain the arms or licence if he or she has reasonable grounds to suspect that there are arms in the place or vehicle—
(a) in respect of which a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; or
(b) that may be evidential material in relation to a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983.

Question 9

Section 20 – Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences

Answer 9

A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—

(a) to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and

(b) to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c) to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.

Question 10

Section 21 – Warrantless searches of people found in or on places or vehicles

Answer 10

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.

Question 11

Section 22 – Warrantless power to search for controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975

Answer 11

(1) A constable may, in the circumstances set out in subsection (2), search a person without a warrant.

(2) The circumstances are that the constable has reasonable grounds—
(a) to believe that the person is in possession of—
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b) to suspect that an offence against the Misuse of Drugs Act 1975 has been committed, is being committed, or is about to be committed, in respect of that controlled drug or precursor substance.

(3) This section does not—
(a) limit section 20 or 21; or
(b) authorise a constable to enter or search a place or vehicle except in accordance with those sections.

Question 12

Section 27 – Searching people in public places without search warrant if offence against section 202A(4)(a) of Crimes Act 1961 suspected

Answer 12

A constable who has reasonable grounds to suspect that a person is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances) may, without a warrant, search the person.

Question 13

Section 28 – Stopping and searching vehicles without warrant if offence against section 202A of Crimes Act 1961 suspected

Answer 13

(1) A constable who has reasonable grounds to suspect that the circumstances in subsection (2) exist in relation to a vehicle may search the vehicle.

(2) The circumstances are that —
(a) a person travelling in the vehicle or who has alighted from it is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances); and
(b) the vehicle contains a knife, offensive weapon, or disabling substance.

Question 14

Section 83 – Entry without warrant after arrest

Answer 14

(1) This section applies if a person—
(a) arrests a person for an offence; and
(b) has reasonable grounds to believe that evidential material relating to the offence is at a place and that the evidential material will be destroyed, concealed, altered, or damaged if entry to that place is delayed to obtain a warrant.

(2) The person may enter the place without a warrant to search for the evidential material relating to the offence (whether or not the person was arrested there).

Question 15

Section 84 – Warrantless entry and search of vehicle after arrest

Answer 15

A person to whom this subpart applies who has arrested a person and who has reasonable grounds to believe that evidential material relating to the offence for which the person was arrested is in or on a vehicle may enter and search it without a warrant.

Question 16

Section 112 – Items of uncertain status may be seized

Answer 16

If a person exercising a search power is uncertain whether any item found may lawfully be seized, and it is not reasonably practicable to determine whether that item can be seized at the place or vehicle where the search takes place, the person exercising the search power may remove the item for the purpose of examination or analysis to determine whether it may be lawfully seized.

Question 17

Section 117 – Special powers where application for search warrant pending

Answer 17

(1) If an application for a search warrant is about to be made or has been made and has not yet been granted or refused by an issuing officer, an enforcement officer present at the place or vehicle that is or is to be the subject of the application may, if authorised by subsection (2),—
(a) enter and secure the place, vehicle, or other thing in respect of which authorisation to enter and search is being sought, and secure any item or items found at that place or in or on that vehicle or other thing, at any time that is reasonable in the circumstances:
(b) direct any person to assist with the entry and securing of the place or vehicle or other thing or the securing of items in it (including, without limitation, a member of a hapu or an iwi if the place to be entered is of cultural or spiritual significance to that hapu or iwi).
(2) The powers conferred by subsection (1) may be exercised if the enforcement officer has reasonable grounds to believe that evidential material may be destroyed, concealed, altered, damaged, or removed before a decision is taken to grant or refuse the issue of a search warrant.

(3) The powers conferred by subsection (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.

(4) A person who exercises any power under subsection (1) must, on the request of any person affected by the exercise of the power,—

(a) identify himself or herself either by name or by unique identifier; and
(b) 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; and
(c) if not in Police uniform, produce evidence of his or her identity.

Question 18

Section 121 – Stopping vehicles with or without warrant for purposes of search

Answer 18

(1) An enforcement officer may stop a vehicle to conduct a search under a power to search without a warrant conferred on that officer by this Act or any enactment specified in column 2 of the Schedule to which this section applies if he or she is satisfied that he or she has grounds to search the vehicle.
(2) An enforcement officer may stop a vehicle to conduct a search under a power to search with a warrant issued under this Act or any enactment specified in column 2 of the Schedule to which this section applies if he or she is satisfied that the warrant has been issued and is in force.

(3) A person who exercises a power under this section must, on the request of any person affected by the exercise of the power,—
(a) identify himself or herself either by name or by unique identifier; and
(b) 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; and
(c) if not in Police uniform, produce evidence of his or her identity.

Question 19

Section 123 – Seizure of items in plain view

Answer 19

(1) This section applies to an enforcement officer who, as part of his or her duties,—

(a) exercises a search power; or
(b) is lawfully in any place or in or on a vehicle; or
(c) is conducting a lawful search of a person.

(2) An enforcement officer to whom this section applies may seize any item or items that he or she, or any person assisting him or her, finds in the course of carrying out the search or as a result of observations at the place or in or on the vehicle, if the enforcement officer has reasonable grounds to believe that he or she could have seized the item or items under—

(a) any search warrant that could have been obtained by him or her under this Act or any other enactment; or
(b) any other search power exercisable by him or her under this Act or any other enactment.

(3) If an enforcement officer seizes any item or items under subsection (2), in circumstances where he or she is not already exercising a search power, the enforcement officer may exercise any applicable power conferred by section 110 in relation to the seizure of the item or items.

Question 20

Section 45 – Restrictions on some trespass surveillance and use of interception device

Answer 20

(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 section 44, 45, 50, 51, 54, or 55 of the Arms Act 1983.

(2) Nothing in this subpart authorises any enforcement officer to use an interception 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 section 44, 45, 50, 51, 54, or 55 of the Arms Act 1983.

Question 21

Section 46 – Activities for which surveillance device warrant required

Answer 21

(1) Except as provided in sections 47 and 48, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:
(a) use of an interception device to intercept a private communication:
(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:
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) use of a surveillance device that involves trespass to land or trespass to goods:
(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 the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—

(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.

(2) This section is subject to section 45.

Question 22

Section 47 – Some activities that do not require warrant under this subpart

Answer 22

(1) No warrant under this subpart is required by an enforcement officer for any 1 or more of the following activities:
(a) the enforcement officer—

(i) being lawfully in private premises; and
(ii) recording what he or she observes or hears there (provided that the enforcement officer records only those matters that he or she could see or hear without the use of a surveillance device):
(b) covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them:
(c) activities carried out under the authority of an interception warrant issued under—

(i) section 4A(1) or (2) of the New Zealand Security Intelligence Service Act 1969; or
(ii) section 17 of the Government Communications Security Bureau Act 2003:

(d) activities carried out by the enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this Act.
(2) Subsection (1)(b) does not prevent an enforcement officer from applying for a warrant authorising covert audio recording in the circumstances set out in that subsection.

Question 23

Section 48 – Surveillance device warrant need not be obtained for use of surveillance device in some situations of emergency or urgency

Answer 23

(1) An enforcement officer who is in any 1 or more of the situations set out in subsection (2) may use a surveillance device for a period not exceeding 48 hours from the time the surveillance device is first used without obtaining a surveillance device warrant, if—

(a) he or she is entitled to apply for a surveillance device warrant in relation to those situations; but
(b) obtaining a surveillance device warrant within the time in which it is proposed to undertake the surveillance is impracticable in the circumstances.

(2) The situations are as follows:
(a) the enforcement officer has reasonable grounds—
(i) to suspect that an offence punishable by a term of imprisonment of 14 years or more has been, is being, or is about to be committed; and

(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(b) the enforcement officer has reasonable grounds—
(i) to suspect that any 1 or more of the circumstances set out in section 14(2) exist; and
(ii) to believe that use of the surveillance device is necessary to prevent the offending from being committed or continuing, or to avert the emergency:

(c) the enforcement officer has reasonable grounds—
(i) to suspect that any 1 or more of the circumstances set out in section 18(2) exist; and
(ii) to believe that use of the surveillance device is necessary to facilitate the seizure of the arms:

(d) the enforcement officer has reasonable grounds—
(i) to suspect that a category 3 or 4 offence in relation to arms or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(e) the enforcement officer has reasonable grounds—
(i) to suspect that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, or to a precursor substance specified or described in Part 3 of Schedule 4 of that Act; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(f) the enforcement officer has reasonable grounds—
(i) to believe that a person is in possession of any 1 or more of the things described in section 81(2)(a) to (d); and
(ii) to believe that use of the surveillance device is necessary to facilitate the thing’s seizure.

(3) An enforcement officer using, or intending to use, a surveillance device in accordance with subsection (1) may do any or all of the following, using any force that is reasonable in the circumstances to do so, in order to install, maintain, or remove the surveillance device, or to access and use electricity to power the surveillance device:
(a) enter any premises, area, or vehicle:
(b) break open or interfere with any vehicle or other thing:
(c) temporarily remove any vehicle or other thing from any place where it is found and return it to that place.
(4) This section is subject to section 45.