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S And S > SandS > Flashcards

SandS Flashcards

1
Q

What is the purpose of the act?

A

S5 states that the purpose of the act is to facilitate the monitoring of compliance with law and the investigation and prosecution of offences in a manner that is consistent with human rights values by:
- modernise the law of search, seizure and surveillance taking into account the advances of technology and regulate the use of those technologies
- provides the rules that recognise the rights and entitlements affirmed in other enactments.
- ensures investigative tools are efficient and adequate for law enforcement

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2
Q

How to comply; to meet the objectives and obligations when carrying out entries, searches and inspections, productions, examinations, seizures, road blocks and stopping vehicles, Police will..?

A
  • only seize what Police are lawfully entitled to seize.
  • provide appropriate announcements and identification in the exercise of those powers
  • satisfy requirements detailed in the Act
  • conduct risk assessments when planning the exercise of those powers and take action to mitigate risks to protect the safety of public and staff
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3
Q

Define RGTB

A

Having a sound basis of believing a circumstance or situation exists. E.g. you enter and search a property because you believe EM will be located in that place, vehicle, or other thing.

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4
Q

Define RGTS

A

Having a sound basis of suspecting a circumstance or situation exists. Eg you suspect a offence or suspected offence is being, has been, or about to happen at that place, vehicle, or other thing.

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5
Q

reasonable ground, you must? And be aware that you may be required to?

A
  • when you form a belief or suspicion you make a clear decision and record of that belief and suspicion.
  • must be a record of decision for reasonable ground and powers used and note it in your notebook - which is your decision log.
  • required to make note of grounds and powers used and justify your decision of powers used in court or other formal proceedings.
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6
Q

To undertake a warrantless search of a person for controlled drug (S and S s22) you must:?

A
  • have RGTS that an offence against the MODA 75 HAS BEEN, WILL BE OR 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.
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7
Q

Under S and S act 2012, a lawful search is a search that is conducted with a?:

A
  • Search warrant
  • Warrantless search power
  • with a persons consent
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8
Q

Under the S and S act. A reasonable search is a search that?

A
  • complies under s21 of BOR act 1990 and considers factors such as:
  • the nature of the search
  • how instructive is the search
  • when and where the search will take place
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9
Q

Practicable in the circumstances, when thinking about whAt is practicable, consider questions such as:

A
  • is there time to gain approval and apply for a SW
  • is there risk to EM (Cadd)
  • is there reasonable resources(staff) available to minimise risk and ensure safety
  • the location of the search, who may be present.
  • can the scene be secured. (S117)
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10
Q

Search options. If it is not preacticable to apply for a SW, there may be 2 other options available. What are they?

A

Warrantless search power - if a warrantless power is available to you, then you have a power to search without a warrant.
Search by consent - if you do not have to apply fore a search warrant or use a warrantless power. You can request a search by consent.

If you do not have a warrant less or consent search power than you cannot search

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11
Q

Why use a SW?

A
  • ensures judicial oversight
  • protection of Police and Public
  • requires recording and reporting of results
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12
Q

Search by consent: before conducting a search by consent, you must determine that the search is for one of the following reasons:

A
  • prevent injury or harm
  • investigate weather an offence has been committed
  • protection of life and property
  • prevents the commission of an offence
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13
Q

Undertaking a consent search: before conducting a consent search, what must you advise the person from whose consent is sought?

A
  • the reason for the proposed search
  • may consent and refuse to the consent search
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14
Q

The person who consents to the search may do what during the search?

A

May withdraw consent at any time, you must stop immediately unless you invoke a warrantless power to continue the search.

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15
Q

Rules surrounding a person under the age of 14 (consent search)

A

Person under the age of 14 years cannot consent to the search of a place, vehicle or other thing (unless they are found driving with no passenger of or over the age of 14 years who has authority to consent to the search of the vehicle.)

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16
Q

CADD - EM material - definition of EM? Tangible? Intangible?

A

EM, in relation to a offence or suspected offence is evidence of an offence or any item which is tangible (can see or touch) or intangible (can not touch, no physical presence e.g email address or internet data) relevant to the investigation of an offence.

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17
Q

Examples of CADD?

A
  • concealed - burying, hiding the item
  • Alter - changing or removing the serial numbers from stolen property in an attempt to disguise them
  • Damage - cutting out the firewall from a stolen vehicle to remove identifying feature.
  • destroyed - consuming food/alcohol or burning clothing.
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18
Q

Obligations ID: when searching a place, vehicle or other thing, you must comply with obligations set up in s131

A

R - reason for search
A - Act used
I - Intention for the search
N - identify yourself by name or unique identifier. - must show proof of ID if not in uniform
- give notice by leaving a copy of the SW
- when you detain a person for a search, you must rights caution them.

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19
Q

Obligations/reason. If your are using a warrantless search power, you must state the reason for your search, you must also..

A
  • Provide a copy of the search warrant or warrantless search power (pol1275) and inventory of items seized.
  • report your use of power (s169)
  • Consider privilege (sec 136 - 147)
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20
Q

Obligations/ notice: section 131, you must give notice to the occupier or person in charge. ≈

A

If using a SW..:
- Provide a copy of the search warrant

If using a warrantless power:
- state name of enactment under which search is taking place, and reason for search
- to comply with obligations can use form pol1275 search notice to occuopier

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21
Q

Exceptions to ID and Notice:

A
  • RGTB no one is present
  • endangers persons safety
  • prejudice an ongoing investigation
  • prejudice successful entry and search power
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22
Q

What to do if person refuses entry?

A

Use reasonable force to gain entry or doesn’t allow entry within a reasonable time

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23
Q

What if there is no one at the place where the search is to be conducted?

A

Use reasonable force to enter place, vehicle or other thing if you have RGTB no one is lawfully present.
- leave a copy of the search warrant/pol1275 and inventory list within 7 days after search.

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24
Q

Section 110?

A

Section 10 authorises you additional powers when conducting a search. This include:
- enter and search the place, vehicle =, or thing that you are authorised to enter and search
- search any items found in that place, vehicle, thing (if reasonable)
- use reasonable force in respect of any property for the purpose of carrying out the search
- seize anything that is 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/ other thing
- bring and used a trained law enforcement dog and their handler
- copy any document/part of a document that may be lawfully seized.
Access a computer system or other data storage device
- take photographs, sound and video recordings and drawings.

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25
Q

What if your search is impeded? S116

A

S116 allows you to
- exclude any person from that place, vehicle or other thing being searched, or any area in or on the place or thing.
- give any reasonable direction to that person

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26
Q

S116 and 118

A

116 - You can secure a place, vehicle, or thing to be searched and exclude any person from there.
118 - you can detain people when searching places and vehicles for the purpose of determining their connection between a person and place or in a vehicle

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27
Q

S119

A
  • You can search people found when searching places and vehicles if you. Have RGTB they have EM on them that is object to the search or
  • you have RGTS that person is in possession of a dangerous item that poses threat to safety and you believe immediate action is necessary to address the threat
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28
Q

S120

A

Fresh pursuit
- if you are in fresh pursuit and with RGTB that relevant EM is still on the person, you have the power to enter any place to apprehend that person and search the person or vehicle.

29
Q

AWOCA

A

Ask - ask to comply with search
Why? - intention to search under S and S based on belief/suspicion
Options - allow search or be arrested for obstruction
Confirm - confirm they understand the options
Act - arrest for obstruction

30
Q

Privileged material

A
  • Privilege allows holders of particular information to refuse to disclose it.
  • no privilege applies to any information that is complied for a dishonest purpose or to enable/aid any person to commit an offence.

Recognised privilege material includes material gained through communications with:
- legal advisors
- ministers of religion
- medical practitioners
- clinical psychologists
- informants
- journalist

  • does not include accountants !!!
31
Q

Privilege - practical procedures - set procedures for search involving privilege material held by a specific person

A
  • ensure that the person or their representative is present when the search is undertaken
  • give the person reasonable opportunity to claim privilege
32
Q

If you receive or are expecting to receive a claim of privilege

A
  • secure the thing subject to privilege
  • do not continue to search or examine it
  • do not undertake any other investigations in reliance on it unless no claim of privilege is made, or the claim is withdrawn.
  • or the search is in accordance with the direction of the court determining the claim of privilege
33
Q

Search warrant - practicable in the circumstances - when applying for a S/W in certain circumstances, with your supervisors approval, you can..

A
  • apply for a search warrant orally
  • apply for a search warrant without approaching an issuing officer in person (via phone or email)
  • secure a scene while you apply for a search warrant for a maximum of 6 hours (s117)
34
Q

S117 offers powers when a search warrant is pending which includes:

A
  • 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.
35
Q

S117 applies until one of the following occurs

A
  • expiry of 6 hours from when power first exercised
  • the warrant is available for execution
  • application for S/W is denied
36
Q

Who can issue a S/w?

A
  • district court judge
  • high court judge
  • JP
  • community magistrate
  • registrar
  • deputy registrar
37
Q

A issuing officer may put restrictions on a search warrant including…

A
  • restricting the time when the search warrant may be executed
  • require the occupier or person in charge of a place to provide reasonable assistance to the officer executing the search warrant
  • require a report of the search warrant within a specified time
38
Q

When a search warrant application is refuse you should…

A
  • record the issuing officers reasons for refusing to sign
  • consider the issues raised and if possible re-draft the application, ensuring you have addressed the issues
  • re-submit the application to the same issuing officer.

If the issues cannot be addressed:
- make further inquiries to support the application
- consider whether to continue your investigation without conducting the search
- if reason for refusing the search warrant does not seem justified, submit a report to legal services for direction.

39
Q

Who may execute a search warrant and when?

A

The person whom is directed or any constable

40
Q

How long is a search warrant valid for?

A

14 days.
Or no more than 30 days if justified why it is necessary

41
Q

When is a search warrant considered executed?

A

When all EM specified in search warrant seized, or
- leave the place, vehicle or other thing and do not return within 4 hours

42
Q

How often can a search warrant be executed?

A

Once, unless more than one occasion is applied for and justified and authorised in the search warrant. Must detail reason for multiple entries

43
Q

A application to postpone is made underage of the act and should be presented to the judge when..

A

At the time of the search warrant application
Or
Before 7 days has passed after the search warrant execution

A judge can postpone these obligations for a term not exceeding 12 months

44
Q

GSMEAC

A
45
Q

Holding a search warrant briefing. The person in charge of the briefing should…

A
  • ensure all required staff are present
  • reinforce verbal information given with visual prompts
  • use map, charts, diagrams and photographs
  • provide copies of all important information’
  • ensure all staff 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 are disclosable.
46
Q

What to do if nobody at the address to be searched

A

If you have RGTB that no one is home, you do not have to comply with the 131 announcement obligations. 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 warrant being executed.

47
Q

Stopping vehicles for the purpose of a search (section and powers)

A

S121
Power to stop a vehicle if you intend to search it - must have a warrant less power or search warrant as a reason to stop vehicle.

48
Q

Items of uncertain status and in plain view

A

S112 and s123 - may seizes items of uncertain status to examine and analyse of site to determine if you could have seized it lawfully

  • plain view - you have reasonable grounds to believe that you could have seized the item under a search warrant or other power.
49
Q

Duration of a production order

A

Production orders may be in force for a period not exceeding 30 days after the date of which the order is made

50
Q

Matters to consider for the district production order approved

A

The information sought does not make unreasonable or unnecessary demands on telco providers whom the order is against

51
Q

Grounds for applying for a production order

A

Suspect that an imprisonable offence has been, will be, is about to be committed

Believe that the documents sought by the proposed order:
- constitute EM in respect of the offence
- are in possession or under control by the person whom the order is made against or will come into their possession or control whilst the order is in force

52
Q

How to apply for a production order

A

Make an application orally e.g by telephone or personal appearance

Have application considered without a personal appearance or communication e.g email

53
Q

Policy around damaging property in the execution of a search warrant

A

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.
- circumstances in which the S/W or statutory power was executed,
- grounds for its execution
- the damage caused and associated circumstances
- the outcome of the search warrant or statutory power executed.
- details regarding the owner of the property and the occupier or user of the property at the relevant time.

54
Q

Securing premises

A

Premises must never be left unoccupied AND insecure after a forced entry. Liability for for contents being stolen may arise. Officers in charge should make every attempt to prevent such loss by insuring the property is made secure. Generally this means:
- liaising with the owner/occupier to secure their own property, if necessary or practicable. Offer to wait for a specified period of time for the owner/occupier/agent to come and do that.
- at the occupiers or owners request engage with a contractor to make the premises secure on the understanding that the owner/occupier will bear the cost.
- attending staff effecting a temporary repair where feasible e.g boarding up a window

55
Q

What is a surveillance devise

A

A surveillance device is a device which assists and enhances your normal capabilities to carry out the surveillance.
May include:
- a visual surveillance device
- an interception device
- a tracking device

56
Q

What is a visual surveillance device?

A

Means any electrical, 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

57
Q

S46 - activities for which a suerveillance device warrant is required

A

Observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.

Some exceptions apply:
- situations of emergency or urgency and
- activities that do not require a warrant.

58
Q

Define private premise

A

Private premise means a private dwelling house, a marae, and any other premise that are not within the definition of non-private premise

59
Q

Define non-private premise

A

Non private premise means premises, or part of a premise, to which members of the public are frequently permitted to have access to, and includes any part of a hospital, bus station, railway station, airport, or shop.

Note: not all parts Tor these premises are non private premises. For example a theatre room in a hospital

60
Q

Define Private activity

A

The definition of private activity acknowledges fundamental human rights. A participant in an activity can reasonably expect the activity if private, if its carried on a private premise

But… reasonably to expect must be an objective test I.e what a normal person would expect.

Where private activities occur is of key importance

Private activities may occur in places that do not fit the definition of private premise.

61
Q

Define private communication

A
  • means a communication whether oral or by form of telecommunications, 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.
    But…
    Does not include communication 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.

Note: where reasonable expectations of privacy are breached with use of an interception device, a surveillance device warrant is required.

62
Q

Define cu rtilage

A

Means land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated “open fields”

It defines the boundary within which a home owner can have reasonable expectations of privacy and where commmon daily activities take place. E.g the ground between the dwelling and the fence/garden/hedge/mowed grass border. It is often the same as the boundary in urban areas, whereas on farms it does not include open fields.

Activities that do not require a warrant to cover the use of a visual surveillance device within the curtilage of private property but usage is restricted to time limitations.

63
Q

Activities for which a surveillance device warrant is required in relation to curtilage limitations

A

Observations of private property activity in the curtilage of private premises, and any recording of that observation, if any part of the observation/recording is by means of a visual surveillance device, and the duration of that observation, for the purpose of a single investigation, or a connected series of investigations, exceeds:
- 3 hours in any total 24 hour period, or
- 8 hours total

A visual surveillance device for A serious offence if its usage does not exceed the established time limits 

64
Q

Define 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 conversation but does not include a hearing aid or similar device used to correct some normal hearing all the user to know better than normal hearing
  • A surveillance device warrant is required to use an interception device to intercept a private conversation section 46 activities for which surveillance device warrant required use of an interception device to intercept private communications
65
Q

Limitations on use of a interception device

A

Surveillance device warrant will be authorised for use of an interception device for gathering evidence material for.
-Offences punishable by seven or more years in prisonment
- Identified Arms act 1983 offences
- Identified psychoactive substances act 2013 offences

66
Q

What is voluntary oral communication

A

Voluntary all communication as a communication between one or more persons where at least one party in the communication gave their consent for the communication to be recorded (s47)

There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication

And example of this is HS wearing a device to record a telephone conversation with the gang leader

67
Q

What is a Tracking device 

A

Means 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

Although the use of a tracking device is considered to be less intrusive to an individual’s privacy as I only reveals location of a thing or a person and position of that thing. The use of a tracking device requires a surveillance device warrant.

Hey surveillance device warrant may authorise the use of a tracking device to obtain evidential material for the investigation and any offence punishable by imprisonment.

68
Q

situations of emergency or urgency

A

A surveillance device warrant need not be obtained for use of surveillance devices in some situations of emergency urgency.

Section 48 acknowledges that in certain situations, police may need to act immediately without warrant to use any one or more surveillance devices

Two key ingredients exist for any situation to be recognised as one of the emergency or urgency

Ingredient – entitled to apply
Means – you would be entitled to make an application for surveillance Warrant as the situation is one of serious criminal activity

Ingredient – impracticable in the circumstances
Means – you need to use a device urgently as it has not immediately practicable to obtain a surveillance device warrant

Surveillance without warrant in situations of emergency urgency as permitted only where the above circumstances apply and the suspected offence is being or is about to be committed and is punishable by 14 years imprisonment or more and you believe the use of a surveillance device would obtain evidence from material in relation to that offence
– or an arms at the fence
– or a person by reason of the physical or mental condition is in capable of having proper control of the arms or Michael or cause bodily injury to any person
– or the under the domestic violence act 1995 a protection order or a police safety order is in force against the person
- A drug offence or
There is a situation which is
Likely to cause injury or serious property loss/damage and surveillance is necessary to prevent offending from being committed or continuing
– presenting risk to life and safety and surveillance as necessary as an emergency response ( section 14)

S And S (1 decks)

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