Search and Surveillance Flashcards
Evidential Material
Evidence of an offence or any other item, tangible or intangible, of relevance to the investigation of the offence
RGTB
Having a sound basis for believing that a situation or circumstance actually exists eg, RGTB that the search WILL locate evidential material relating to that offence
RGTS
Having a sound basis for suspecting that a situation or circumstance is LIKELY TO EXIST eg, RGTS that an offence has been committed.
What are some examples of a person who is unlawfully at large?
2W; Corrections Act; Prison breaker; escape S120 C.A.; Special/restricted patient; Care/special care recipient; YP within the OT Act under S311.
List the general principles applying to searches
- Lawfulness and reasonableness - all searches must be lawful and reasonable
- Search hierarchy- 1.S/W 2. W/O warrant 3. Consent
- Decision record - record in your notebook
- Identification and notice - Has the right to know who, the authority and the reasons why
- Force used against property must be reasonable - S131(3)
- Search and seizure should be witnessed - Should be witnessed by a Police employee, enforcement officer from another agency or a helper
- Seized property must be documented
McRae v Police (2017)
This details inquiring as to a reasonable excuse for possessing an offensive weapon before conducting a search
Section 7
Entry to arrest a person UAL
Section 7 - Entry to arrest a person UAL
RGTS that a person is UAL; and
RGTB that the person is IN or on a place or vehicle; then
You may ENTER the place or vehicle W/O warrant to search for and arrest the person
Section 8
Entry to avoid loss of offender or ev. mat.
Section 8 - Entry to avoid loss of offender or ev. mat.
RGTS - a person has committed an offence punishable by imprisonment; and
RGTB - the person is in a place or vehicle; and
RGTB - if entry is not effected immediately then EITHER or BOTH:
- the person will leave to avoid arrest OR
- CADD will occur; then you may:
ENTER W/O warrant; and
SEARCH for and K9 the person you suspect has committed the offence
NOTE: You may not search for ev. mat. UNLESS an ARREST is made and a search incidental to arrest is made under S83-88
ENTRY AND SEARCH TO EFFECT ARREST
Sections: 7/8
EMERGENCY POWERS
Section: 14
Section 14
Entry to prevent offence or respond to risk to life or safety
Section 14 - Entry to prevent offence or respond to risk to life or safety
RGTS - in relation to a place or vehicle:
- Offence is being, or about to be committed = injury or serious loss or damage to property; or
- Risk to life or safety of any person that requires an emergency response
You may:
- Enter W/O warrant; AND
- TAKE ANY ACTION you have RGTB is necessary to:
- Prevent the offending from being committed or continuing; or
- Avert the emergency
Section 15
Entry and search of places to find and avoid loss of ev. mat.
Section 15: Entry and search of places to find and avoid loss of ev. mat.
(Hint: urgency)
RGTS - 14yr+ offence has been/is being/about to be committed; and
RGTB - ev. mat. is there; AND if entry is delayed CADD will occur then you MAY:
- Enter and search W/O warrant
What is the premise of section 15?
Urgency - once that urgency has passed and the scene is secure, a warrant should be obtained.
14+ YEAR OFFENCE SEARCHES
Sections: 15/16/17
Section 16
Searching people in PP for ev. mat. for 14+ yr offences
Section 16 - Searching people in PP for ev. mat. for 14+ yr offences
RGTB - Person in a PP has ev. mat. 14+ then:
You may - SEARCH that person W/O warrant
Section 17
Entry and search of vehicles in PP for ev. mat. 14+
Section 17 - Entry and search of vehicles in PP for ev. mat. 14+
RGTB - a vehicle in a PP has ev. mat. 14+ then:
You may - enter and search the vehicle W/O warrant
If a vehicle is on private property which section should you use to search it?
Section 15 - warrantless search of places
Section 18(3)
Warrantless search for arms in places or vehicles
Section 18(3) - Warrantless search for arms in places or vehicles
RGTS - firearms in any place or vehicle; and
Cat. 3/4 offence or offence against the arms act is being or about to be committed; or arms act offence;
You may - Enter the place or vehicle; Search it; Seize and detain any arms or license
WARRANTLESS SEARCHES FOR OFFENSIVE WEAPONS
Section 27/28
Section 27
Searching people for offensive weapons
Section 27 - Searching people for offensive weapons
If RGTS 202(4)(a) Crimes Act offence then you may:
Search the person
Section 28
Searching vehicles for offensive weapons
Section 28 - Searching vehicles for offensive weapons
RGTS - a person traveling in a vehicle (or who has alighted from it) is committing an offence in PP v. 202(4)(a) of the CA 1961; AND -
The vehicle contains a knife, offensive weapon or disabling substance; then -
You may - Search the vehicle
Disabling substance
Any anaesthetising or other substance produced to use for disabling a person, or intended for such use by the person who has it with them
Offensive weapon
Any article made or altered to use for causing bodily injury, or intended for such use by the person who has it
Section 29
Search of vehicles for stolen property
Section 29 - Search of vehicles for stolen property
RGTB - there is stolen property in a vehicle in a PP then you may -
SEARCH the vehicle
Warrantless searches for drugs
20/21/22
Section 20
Warrantless searches of places and vehicles in relation to MODA 1975 offences
Section 20 - Warrantless searches of places and vehicles in relation to MODA 1975 offences
RGTB - not practicable to obtain a warrant and that in or in a place/vehicle is a controlled substance; and
- RGTS - an offence has been/is being committed in respect of that drug; and
- RGTB - if search not carried out CADD will occur; then:
Can enter/search a place/vehicle w/o warrant
Section 21
Warrantless searches of people found in/on places/vehicles
Section 21 - Warrantless searches of people found in/on places/vehicles
Under S20 any person found in/on place/vehicle may be searched
Section 22
Warrantless power to search for controlled drugs if MODA offence suspected
Section 22 - Warrantless power to search for controlled drugs if MODA offence suspected
RGTB - a person is in possession of controlled drugs AND suspect an offence has been committed - can search a person
Entry and search of places incidental to arrest
Sections 83/84
Section 83
Entry and searches of places after arrest
Section 83 - Entry and searches of places after arrest
RGTB - ev. mat. is at the place; AND
- If entry is delayed CADD will occur; THEN
- You may w/o warrant ENTER the place to search for ev. mat. (whether or not the arrested person was there)
What is the requirement of Section 83 and 84 that allows you to invoke this search power?
You must have arrested the person first that the search relates to
Section 84
Entry and search of vehicles after arrest
Section 84 - Entry and search of vehicles after arrest
RGTB - ev. mat. in the vehicle; then -
- May enter and search the vehicle w/o warrant
List the key points of consent searches
- Before carrying out a consent search consider a S/W or warrantless search
- You must have a reason for searching
- You must advise the reason and that they can refuse or withdraw
What is the minimum age a person can consent to a search of a place, vehicle or other thing?
14 - UNLESS FOUND DRIVING A MOTOR VEHICLE
What are the exceptions to the consent search rules?
- As a condition of entry to any public or private place
- Under a power conferred by an enactment
- Under an implied license
Section 92 - purposes for which consent searches may be undertaken
- to prevent the commission of an offence
- to protect life or property, or to prevent injury or harm
- to investigate whether an offence has been committed
Section 93 - Advice that must be given
- the reason for the proposed search
- that they may consent or refuse
Section 94 - Circumstances where consent searches become unlawful
- it is not for a purpose under S92
- you fail to give the advice under S93
- you search relying on consent from someone who can’t give it
Section 95 - Restrictions on persons under 14 to consent
- they cannot consent to a search of a place, vehicle or other thing EXCEPT - if they are found driving a vehicle and there is no one over 14 to consent
Does S95 prevent a person under 14 consenting to a search of themselves or anything in their immediate possession or control?
No.
Section 96 - Exceptions to consent search rules
- doesn’t affect searches conducted as a condition of entry to any public place or private place
List the disadvantages of using consent searches
- the person consenting can withdraw it at any time
- if a search power is invoked after withdrawal of consent, the initial request may be seen to be token or meaningless
- the existence or vadility of any consent given may be challenged in court
List the actions you may take when carrying out search powers
- Enter and search at any reasonable time
- Request assistance from any person with the entry and search
- Use reasonable force in respect of property ONLY
- Seize anything that is the subject of the search
- Bring and use equipment OR any equipment found there - may also use electricity
- Bring and use a trained law enforcement dog and its handler
- Copy any document that may be lawfully seized
- Access a computer system or other data storage device
- Copy intangible material
- Take photographs and recordings
Section 113 - Using assistants during searches
- they are subject to your control and overall responsibility
- You MUST:
- accompany them when they first enter
- provide reasonable supervision of them
Section 117 - Power to secure scenes
RGTB - CADD will occur before a decision is made to grant or refuse the issue of a S/W then you may:
- enter and secure
- secure any items found there
- direct any person to assist with the entry and securing of the place or securing of items in it …
Until the FIRST of the following occurs:
- 6hrs expires from when the power is exercised
- the s/w is available for execution
- the application is refused
Section 118 - powers of detention incidental to searches of places and vehicles
ENSNARE RITALIN
ENSNARE RITALIN = connEctioN/Start/eNtA/Reasonable forcE/peRiod/busIness/shorTest/ALlow/accommodatIoN
If exercising a search power, you may detain any person to determine a CONNECTION between them and the object of the search if:
- they are there at the start
- they arrive at, stop at, enter, try to enter the vehicle or place while the search is being carried out
- may use reasonable force eg, handcuffing
- it may be for any reasonable period - it starts when you direct the person to remain and ends when you tell them you are free to go
- once people are excluded and cleared of suspicion they should be informed that they are free to go about their business
- detention is for the shortest period practicable
- endeavour to allow occupants back into a place or vehicle as soon as it has been secured and where it is physically practicable
- if not practicable then assist to find alternative accommodation
Section 119 - powers to search persons at a place or vehicle
RGTB - a person has ev. mat. on them that is the object of the search
RGTS - a person is in possession of a dangerous item and RGTB action is needed to address that; you can -
- SEARCH any person found, arrives at or stops, enters or tries to enter
EXCEPTION: Drugs - can search as a matter of course
- If you seize any item posing a threat to safety then, UNLESS AN OFFENCE, it must be returned to the person - once the search has been completed or when there is no longer any threat to safety
Section 120 - powers of search when suspect pursued
If a person or vehicle leaves before you are able to start or complete a search, if you have -
- Been freshly pursuing AND,
- RGTB ev. mat. is still on the person or in the vehicle; you may:
- apprehend the person,
- enter any place to apprehend the person or vehicle
S110
S127
S131(1)
S117
S110 - a s/w gives you power of entry to the place
S127 - a s/w gives you power of entry to a vehicle
S131(1) - provide a copy of the warrant
S117 - when securing the scene state the NAME OF THE ACT AND REASON FOR THE SEARCH
What is the process for warrants covering separate units of occupancy?
- each occupier of each unit should be provided with a copy of the warrant - if in doubt, take multiple copies of a warrant to a search scene to distribute if necessary
List exceptions to announcing entry/identifying yourself/giving a copy of the warrant
- (S131(2))
- no person is lawfully present
- compliance would -
- endanger safety
- prejudice entry and search power
- prejudice ongoing investigations
Section 116 - RAN
Reason
Act
Name
Section 131 - RAIN
Reason
Act
Intent to enter and search
Name
What is the obligation for plain clothes staff wearing SRBA?
Must produce ID
What sections detail use of force?
In relation to SSA2012
S110 - v property
S131(3) - v persons when entry resisted or refused
What items may be searched and seized?
- only items listed on the s/w
- a vehicle can be searched if it is on the premises
- a vehicle parked on the street must be specified on the warrant
Section 112 - items of uncertain status
May remove an item to determine whether it may be lawfully seized
S123 - seizure of items in plain view
RGTB - Could have seized the item under another act or SSA
Notice requirements - S131 and 132
You must:
- give that person before or on initial entry - a copy of the warrant contained in ‘notice to occupier’
- if warrantless search, a POL1275
When someone is not present:
- Leave a copy of warrant/POL1275
Obligations when a search results in a seizure
Either at the time or no later than 7 days:
- to the occupier or owner of a thing a PROP record/copy of the warrant
Road blocks and stopping vehicles for search purposes
S9/121/122/128/129/177
S121 - stopping vehicles w/o warrant to search
W/O warrant - If satisfied that grounds exist to search the vehicle
With a warrant - if the warrant has been issued and is in force
S122 - moving a vehicle for the purpose of search or safekeeping
IF - you find or stop a vehicle
AND YOU HAVE - Lawful authority to search but it is impractical; or
- RGTB necessary to move for safekeeping
S128 - duty to remain stopped
You may require the vehicle to remain stopped for as long as is reasonably necessary for the exercise of any powers in respect of:
- the vehicle; or
- the occupants of the vehicle
S129 - duty to provide information to vehicle’s driver
Hint: obligations
MUST:
- ID yourself
- state the act and reason for the search (unless impractical)
- if not in uniform, produce ID
Section 9 - stopping vehicles without warrant to effect arrest
You may - stop a vehicle to K9 a person
If you - RGTS UAL or has committed an offence punishable by imprisonment and RGTB the person is in or on the vehicle
If you have stopped a vehicle under S9, list the actions you may take
- arrest any person you have RGTS UAL or has committed offence punishable by imprisonment
- search vehicle if RGTB person is in or on a vehicle
- search a vehicle to locate property that is ev. mat. in relation to offence if the person:
- has been arrested or is seen fleeing from the vehicle before they can be arrested
What must you advise the driver of a vehicle if they are not the subject of your S9 stop?
RAIN - (these are your obligations under S10 when stopping a vehicle under S9)
What does S177 allow you to do if a vehicle fails to remain stopped?
It’s a power of arrest
What circumstances must exist in order to establish a road block for the purpose of arrest
- must be authorized by a supervisor or above
- RGTS UAL or committed an offence punishable by imprisonment
- RGTB in or on the vehicle
- RGTS the vehicle the vehicle will travel past where the road block has been established
What is the definition of a senior constable in relation to authorising a road block under S30?
Acting Sgt/Substantive Sgt or higher
What is the initial period for establishing a road block
24hrs
What authority can authorize a renewal of the road block and how long can this be for?
A DC judge; for 24 hrs as specified in writing
If you are the one authorizing the road block, what must you do? (S31)
Keep a written record of:
- the location
- the periods for and grounds on which authorization was granted or renewed
List what you can do if a roadblock has been authorized - you can
- establish the roadblock
- stop vehicles
- require particulars
- search vehicles
List the principles of searching people
- must be lawful
- person must be treated with dignity, privacy, respect and sensitivity
- any force used must be reasonable
- searchers should be the same sex
- property removed should be witnessed
- property should be documented
List your warrantless search powers
Hint: for searching people
S11 - in custody or about to be locked up
S16 - In a public place with ev. mat. for 14+ year offences
S18(1) - arms
S21 - drug offences
S27 - offensive weapons
S85/88 - rub down search after arrest or detention
S11 - searching people who are, or are to be, locked up in Police custody
May search a person who has been taken into lawful custody and is:
- at a police station
- in other premises, or in, or about to be placed in a vehicle being used for police purposes - and is, or is to be, locked up
- you may take any money or other property found during the search (s11(4))
- this power may be exercised BEFORE the person is locked up(s11(2))
What is the definition of ‘locked up’?
A person who has been taken into lawful custody and being placed behind a closed or locked door that prevents them from leaving.
S11(3) - searching people after they are locked up
Can only be searched if:
- they were not searched before being locked up
- since being searched before being locked up, they have been, or RGTS of having been in close proximity to:
- a person who was not locked up in police custody
- another person who was eligible to be searched after being locked up but was not; or
- RGTB in possession of anything that may be used to harm themselves or others
TIMING: Avoid searching under S11 immediately after their arrest
S85 - rub down searches of arrested or detained people
- harm any person or facilitate escape
S88 - warrantless searches for ev. mat.
RGTB have any thing that:
- could harm any person
- may be used to facilitate escape or
- ev. mat. relating to offence for which the arrest was made or the person detained
- 88(2)(c ) - search/seizure from the external body of an arrested person
List some examples of when samples from a person’s external body may be seized
- A swab to remove blood from the victim of an assault on the arrested person’s neck
- finger nail scrapings from the fingers of an arrested rape offender
- a swab of an arrested person’s skin for gunshot residue
- penile swabs
They must be approved by Sgt or above
Explain R v Jeffries (1994) and how it relates to lawfulness and reasonableness
Lawfulness is not inevitably determinative of reasonableness.
If particular evidence would still have been discovered if the search had not been conducted, then the evidence may still be deemed admissible
In McCrae v Police (2017), what did the Court suggest the officer could have asked McCrae regarding his possession of a machete?
The Court suggested that prior to conducting a search of the vehicle, the officer could have asked the driver why he had the machete in his vehicle.
What is good practice regarding consent searches?
To identify yourself by name, give the reason for the search and if not in Police uniform, produce ID.
What type of search would you conduct on a person that you have just arrested?
A rub down search under S85-87
What is the primary purpose of a S11 search?
To protect the detained person’s property and remove items that might be used to harm themselves or others.
A prisoner has undergone a S11 search at one station. Upon transportation and arrival at another station you RGTB that the person needs to be searched again.
What type of search would you use?
S85 or 88
