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CPK - February 2022 > Search and Surveillance > Flashcards

Search and Surveillance Flashcards

1
Q

Evidential Material

A

Evidence of an offence or any other item, tangible or intangible, of relevance to the investigation of the offence

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2
Q

RGTB

A

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

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3
Q

RGTS

A

Having a sound basis for suspecting that a situation or circumstance is LIKELY TO EXIST eg, RGTS that an offence has been committed.

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4
Q

What are some examples of a person who is unlawfully at large?

A 
2W - Warrant to Arrest 
Corrections Act - Prison breaker
Escaped Police Custody 
Special/restricted patient 
Care/special care recipient 
YP within the OT Act under S311
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5
Q

List the general principles applying to searches (7)

A
  • 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
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6
Q

McRae v Police (2017)

A

This details inquiring as to a reasonable excuse for possessing an offensive weapon before conducting a search

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7
Q

Section 7

A

Entry to arrest a person UAL

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8
Q

Section 7 - Entry to arrest a person UAL

A

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

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9
Q

Section 8

A

Entry to avoid loss of offender or ev. mat.

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10
Q

Section 8 - Entry to avoid loss of offender or ev. mat.

A

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

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11
Q

Section 14

A

Entry to prevent offence or respond to risk to life or safety

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12
Q

What reasonable grounds must be established before invoking Section 15 - Loss of Evidential Material relating to certain offences? (3)

A

1) Suspect a 14-year offence has/is/about to be committed
2) Believe evidential material is in that place
3) Believe any delay will lead it to being CADD

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13
Q

Section 16 - Search person in public for evidential material - 14 year offence. What are the requirements?

A
  • The person is in a public place

- RGTB they are in possession of evidential material relating to a serious offence.

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14
Q

Section 17 - Search vehicle in public for evidential material - 14 year offence. What are the requirements (2)?

A

1) A vehicle in a public place.

2) RGTB there is evidential material of a serious offence in or on the vehicle.

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15
Q

Section 83 - Entry and search place/vehicle incidental to arrest

A

If you have arrested a person for an offence and believe evidential material is in the place or vehicle, and that delay in getting a Search Warrant would result in the evidential material being CADD,

you may enter and search the place/vehicle for evidential material relating to the offence.

It does not matter if the person was not arrested there

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16
Q

When executing a Search Warrant or Power, who can you search at the scene?

A

You can search any person found at, arrives at or stops/enters the place or vehicle if you have reasonable grounds to believe that evidential material is on that person or

suspect that the person is in possession of a dangerous item that poses a threat to to safety and you believe immediate action is needed.

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17
Q

Section 117

A

Secure scene while search warrant is pending (up to 6 hrs)

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18
Q

According to Section 131 of the Search and Surveillance Act 2012, what must you do when exercising a search power?

A

RAIN

Before entry, you must:

  • announce intention to enter and search using a power
  • identify yourself by name
  • if not in uniform, produce evidence of your identity

131 (1) - Before of on initial entry, provide the occupier a copy of the search warrant.

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19
Q

Section 131 (2) - When do you not have to announce entry or give reasons for the search?

A
  • no person lawfully present

- compliance would endanger the safety of any person or prejudice the exercise of the entry or the ongoing investigation

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20
Q

What are some of the factors you should consider before making an unannounced forced entry (5)?

A
  1. Whether there are reasonable and practical alternatives to a forced entry.
  2. The seriousness of the offence or circumstances.
  3. Any history of violence by the parties present.
  4. Danger being posed to people at the premises.
  5. Whether evidence is likely to be CADD.
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21
Q

How old does a person need to be to be treated as an occupier or person in charge according to SSA 2012?

A

14 years or older.

The only exception is if they are found driving a vehicle and there is no passenger 14 years or older with authority to consent to the vehicles search.

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22
Q

What is curtilage?

A

An area attached to a dwelling house and forming one enclosure with it. In an urban area it would include the area within a dwelling’s fenced boundary.

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23
Q

Section 9 - stopping vehicles without warrant to effect arrest. What are the requirements?

A
  • RGTS the person is unlawfully at large or has committed an imprisonable offence.
  • RGTB the person is in or on that vehicle.
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24
Q

Under section 30 of the Search and Surveillance Act 2012, who can establish a road block?

A

A senior constable (which means sergeant or above, including acting).

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25
Q

What is required to invoke a search under section 18, subsection 3, of the Search and Surveillance Act 2012 (2)?

A

If you have RGTS that there are arms in any place or vehicle:

1) in respect of which a category 3 or 4 offence or an offence against the Arms Act 1983 has/is/about to be committed OR
2) that may be evidential material in relation to a category 3 or 4 offence or an offence against the arms act

26
Q

What does locked up mean?

A

Taken into lawful custody and being placed behind a closed or locked door which prevents them from leaving.

27
Q

According to section 11 of the Search and Surveillance Act 2012, You may search a person who has been taken into lawful custody and is…(3)

A

1) At a Police station, or
2) in other premises, or in, or about to be placed in a vehicle being used for Police purposes, and
3) is, or is to be, locked up (pending a decision on bail or for any other reason)

28
Q

Section 85 - What is the purpose of a rub down search?

A

To ensure a person who has been arrested or detained is not carrying anything that may be used to harm any person or facilitate escape.

29
Q

Under which circumstances would you carry out a section 88 search under SSA 2012?

A

If you have arrested a person or detained them under a statutory power, and have reasonable grounds to believe that there is anything on or carried by the person that:

  • may be used to harm any person
  • may be used to facilitate the person’s escape
  • is evidential material relating to the offence for which the person is arrested or the person detained.

You may search that person

30
Q

What are some examples of when samples from a person’s body may be seized as evidential material pursuant to a Sec 88 search?

A
  • swabs to remove blood on the arrested person
  • fingernail scrapings
  • swabs for firearms residue
  • penile swab (to obtain victim’s DNA from offender relating to a sexual violation)
31
Q

What does inevitable discovery refer to?

A

Evidence obtained as a result of a breach of the New Zealand Bill of Rights which would of been obtained even if the breach had not occurred. The fact that it would have inevitably been discovered is a factor to be taken into account in determining whether it is admissible under the balancing test in section 30 of the Evidence Act 2006. It is not admissible as a matter of course.

32
Q

What was held in R v Jefferies with respect to the lawfulness and reasonableness of searches?

A

Lawfulness is not inevitably determinative of reasonableness or unlawfulness of unreasonableness.
If particular evidence would still be discovered if the unlawful search had not been conducted, then the evidence may still be deemed admissible.

33
Q

What constitutes being unlawfully at large (6)?

A

1) Has an arrest warrant
2) Has escaped from Prison or is absent without leave
3) Has escaped lawful custody
4) Is a special or restricted patient and has escaped or failed to return from leave.
5) Is a special care recipient (intellectual disability) that has escaped or failed to return from leave.
6) Is a young person who is subject of a Youth Court Supervision order and have absconded CYF Custody.

34
Q

When searching vehicles for offensive weapons under the SSA 2012, what thresholds must you meet (2)?

A

1) If you have reasonable grounds to suspect that a person travelling in a vehicle (or who has alighted from it) is committing an offence in a public place against 202A(4)(a) of Crimes Act 1961 and
2) The vehicle contains a knife, offensive weapon, or disabling substance

You may search the vehicle without a warrant

35
Q

Disabling Substance means?

A

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.

36
Q

Section 29 - Stolen Property

A

If you have reasonable grounds to believe that any stolen property is in or on any vehicle you may search the vehicle without warrant.
- If the vehicle is on private property you should seek a warrant or use alternative warrantless powers.

37
Q

Section 119 - Searching People when searching places or vehicles..

A

If you have reasonable grounds to believe that:
- Evidential material that is object of the search is on that person.
- The person is in possession of a dangerous item that poses a threat to safety, and that immediate action is necessary to address the threat,
Then you may seize the evidential material or dangerous item.

38
Q

According to section 122 of the Search and Surveillance Act 2012, when may you move a vehicle to another place (2)?

A
  1. You have lawful authority to search it but it is impracticable to do so at that place
    OR
  2. RGTB it is necessary to move the vehicle for safekeeping.
39
Q

Section 27 - Warrantless searches of people for offensive weapons

A

You may search a person without warrant if you have reasonable grounds to suspect the person is committing and offence against section 202A of the Crimes Act 1961.

40
Q

Section 125 - What are the obligations when Searching people (4)?

A

You Must:

  • Identify yourself
  • State the name and Act under which the search is taking place and the reasons for it unless it is impracticable to do so.
  • Produce evidence of your identity if not in police uniform.
  • Provide the person with a copy of an inventory of any items seized.
41
Q

What can you do according to a section 85 rub-down search (3)?

A

A rub-down search is a search of a clothed person in which you may:
1) run or pat your hand over the body of the person being searched whether outside or inside their clothing (other than the underclothing)
2) insert your hand inside any pocket or pouch in their clothing (other than the underclothing)
3) for the purpose of permitting a visual inspection, require the person being searched to:
-open their mouth
-display the palms of their hands or the soles of their
feet
-lift or rub their hair

42
Q

How should you keep a decision record in relation to searches?

A

You should record your reasonable grounds to suspect and/or believe that were known at the time a warrantless power was used. You may need to rely on this record in court.

43
Q

Why does the Search & Surveillance Act 2012 have identification and notice requirements?

A

The owner/occupier/or person in charge of a place, vehicle or thing being searched has the right to know who searching, the person’s authority for searching and the reasons why they are conducting a search, unless there are good reasons for not providing this information.

44
Q

What does section 131 of the Search & Surveillance Act 2012 say about the use of force?

A

Any force used to gain entry to any place, vehicle or other thing for the purpose of carrying out your search should always be reasonable in the circumstances.

45
Q

What must you do when you seize property?

A

All property removed or seized from a place, vehicle and other thing must be appropriately documented and accounted for.

46
Q

What reasonable grounds are required before establishing a section 30 SSA road block (3)?

A

1) RGTB that in or on a vehicle there is a person who you have
2) RGTS has committed an imprisonable offence or is unlawfully at large and
3) RGTS the vehicle will travel past the place where it is proposed the road block be established

47
Q

How long is a section 30 SSA road block valid for?

A

An initial period not exceeding 24 hours specified by the person giving the authorisation

48
Q

How can a section 30 SSA road block be renewed?

A

It may be renewed from time to time by a district court judge for a single further period not exceeding 24 hours specified in writing by the judge.

49
Q

What must you keep a written record of if you establish a section 30 SSA road block (2)?

A

1) The location

2) The period(s) for and grounds on which authorisation was granted or renewed

50
Q

What six powers do you have when carrying out a warrantless road block under section 30 SSA?

A

1) Establish road block
2) Stop vehicles
3) Require particulars who you suspect has committed an imprisonable offence (name, address, DOB)
4) Search the vehicle if you have RGTB someone in there has committed an imprisonable offence or who is unlawfully at large
5) Require that vehicle to remain stopped for as long as is reasonably necessary to exercise ay of the powers
6) Arrest if someone fails to stop or remain stopped

51
Q

Do you have to have a reason before asking for a consent search?

A

Yes. You must have a reason to justify asking a person to consent to a search and the search must not be used to go on ‘a fishing expedition’.

52
Q

What are four reasons you might ask for a consent search?

A

1) To prevent the commission of an offence
2) To protect life or property, or to prevent injury or harm
3) To investigate whether an offence has been committed
4) Any purpose in respect of which you could exercise a power of search conferred by an enactment, if you held a particular belief or suspicion specified in the enactment

53
Q

What must you do before carrying out a consent search (3)?

A

1) Determine that the search is for a purpose listed in s92
2) Advise the person from who consent is sought of the reason for the proposed search and
3) That they may consent or refuse to consent to the search

54
Q

Under which three circumstances would a consent search be deemed unlawful?

A

1) It is not for a purpose set out in s92
2) You fail to give the required advice set out in s93
3) You undertake a search relying on consent given by a person who does not have authority to give that consent

55
Q

A person under 14 years of age cannot consent to the search of a place, vehicle, or other thing. What is the exception?

A

When they are found driving a vehicle and there is no passenger of or over the age of 14 years with authority to consent to the vehicle’s search.

56
Q

Can someone under 14 consent to a search of themselves or something in their immediate possession or control?

A

Yes. Section 95 SSA does not prevent this. It only relates to a vehicle, place, or other thing.

57
Q

Where do consent search rules not apply (2)?

A

1) They do not apply to a search conducted as a condition of entry to any public or private place (e.g., a condition of entry to a sporting fixture or concert)
2) Nor do they affect the rule of law relating to the implied licence to enter property

58
Q

What is implied licence?

A

It is assumed that members of the public, including police officers, can enter private property (e.g., go to the door of private premises) so far as is necessary to make an inquiry of an occupier, for any reasonable purpose or in the course of any lawful enquiry. Such an implied licence can be revoked by the occupier at any time.

59
Q

What can you search during a consent search of a person?

A

If a person consents to a search of themselves, you may extend the search to any item that the person is wearing or carrying or is in the person physical possession or immediate control provided the person consents to these items being searched.

60
Q

What are the disadvantages of a consent search (3)?

A

1) The person being searched by consent can withdraw their consent at any time, which means the search must stop immediately unless a search power can be invoked to continue the search
2) If a search power is invoked after withdrawal of consent, the initial request may be seen to be token and meaningless
3) The existence or validity of any consent given may be challenged in court

CPK - February 2022 (18 decks)

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