Search and Surveillance Flashcards
What is the purpose of the S and S Act?
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:
- moderning the law of search, seizure and surveillance to take into account advances in technologies and to regulate the use of those technologies.
- providing rules that recognise the importance of the rights and entitlements affirmed in other enactments.
- ensuring investigative tools are effective and adequate for law enforcement needs.
In order to comply with the act, (to meet objectives and obligations when carrying out entries, searches, etc.) Police will:
(SCOPE)
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 the public and employees carrying out the Act’s powers.
Only seize what police are lawfully entitled to seize
Provide appropriate announcements and identification in the exercise of those powers.
Ensure it has a lawful authority to conduct such activities and exercise any other incidental power in relation to those activities, including the use of force.
Reasonable Grounds to Suspect
Means having a sound basis for suspecting that a situation or circumstance exists.
Reasonable Grounds to Believe
Means having a sound basis for believing that a situation or circumstance exists.
What are reasonable grounds?
Your reasons for holding belief or suspicion
Reasonable Grounds
You must -
You may be required to -
You must:
- record your reasonable grounds for using a search power in your notebook. This is your decision log.
You may be required to:
- report on your decision to use a power and your grounds for using it.
- justify your use of power in court or in other formal proceedings.
What is a lawful search under the act?
- with a search warrant
- under a warrantless search power
- with the person’s consent
What is a reasonable search under the act?
- Complies with Section 21 of the New Zealand Bill of Rights Act and consider factors such as:
- The nature of the search
- How intrusive the search is
- Where and when the search takes place
When should you apply for a search warrant, if there is a warrantless power available?
If it is at all practicable to do so
What should you base your decision on when deciding against applying for a search warrant
RGTB it is not practicable to apply for one in the circumstances
What are some questions to help you consider if it is practicable to apply for a Search Warrant?
Is there time to gain approval and apply for a SW?
Can the scene be secured? (under section 117)
Is the evidential material at risk?
Are reasonable resources (including number of staff) available to minimise risk and ensure safety?
Location of the search and who may be present.
Why use a Search Warrant?
(PER)
Provides greater protection for Police and the Public
Ensures Judicial Oversight
Requires recording and reporting of results
What must you determine before conducting a search by consent?
The search is for…
Preventing the commission of an offence
Preventing injury or harm
Protecting life or property
Investigating whether an offence has been committed
Section 92 - one or more of these situations MUST exist to justify any consent search.
What must you advise a person prior to a consent search?
The reason for the proposed search
They may consent or refuse to consent to the search
Who cannot consent to a search of a place vehicle or other thing (unless driving without passengers)
A person under 14 years old
When must you report a consent search?
Never
Define Tangible
According to the Oxford Dictionary, tangible means something that may be touched
Define Intangible
According to the Oxford Dictionary, intangible means ‘unable to be touched ; not having physical presence’
What is CADD and an example for each.
Concealed - Burying or hiding.
Altered - changing or removing serial numbers from stolen property in an attempt to disguise it.
Damaged - Cutting out the firewall of a stolen car to remove identifying feature.
Destroyed - Consuming food, alcohol or drugs, burning clothing.
What are your obligations under section 131 when searching a place, vehicle or other thing
Identification, Intention, Reason, Notice
When do you not have to comply with obligations ‘identification’ ‘intention’ and ‘notice’ on initial entry?
If you have RGTB no one is present OR You have RGTB that doing so would: - endanger a persons safety - prejudice the successful use of the entry and search power - prejudice ongoing investigations
When can you use reasonable force to enter when using a SW or WS?
If the person refuses entry or does not allow entry within a reasonable time following request.
If you have RGTB no one is lawfully present.
What must you leave if no one is present when searching?
Copy of SW or POL1275
Inventory of any material seized
(ASAP after search - MUST be within 7 days of completion of search)
What does Section 116 allow you to do?
You can secure a place, vehicle or other thing to be searched and exclude any person from there.
You can give any reasonable direction to a person impeding your search.
What does Section 118 allow you to do?
You can detain people when searching places and vehicles to determine if they are connected to the object of the search.
What does Section 119 allow you to do?
You can search people found when searching places and vehicles if you have RGTB that evidential material that is the object of the search is on that person OR if RGTS 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.
What does AWOCA stand for?
How would you use it if a person resisted a search?
Ask (Greet and ID self - ask the person to comply with your search)
Why (Give reasons for actions - intention to search under s & s act, based on belief/suspicion)
Options (present options - allow search or be areested for obstruction)
Confirm (confirm they understand their options)
Action (take action - arrest for obstruction)
What does Section 120 allow you to do?
If you are in Fresh pursuit, and have RGTB that relevant evidential material is still in the vehicle or on that person, you have the power to enter any place to apprehend the person and search the person or vehicle.
Search Warrant Process (7 Steps)
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
How long can you hold a scene for under Section 117?
Maximum 6 hours
Before making an application for SW you must: (5 “Haves”)
- Have RGTS that an offence punishable by imprisonment has been, will be or is about to be committed AND
- Have RGTB that the search will find evidential material in respect of the offence in the place, vehicle, other thing or facility.
- Have checked the target/s history in NIA for other SW applications/outcomes
- Have assessed the risks associated with executing SW
- Have obtained initial approval from a supervisor at or above sergeant rank.
What do you do with children when planning a SW?
Children should be considered as vulnerable people. You will need to plan to keep them safe and minimise harm.
What does Section 117 allow you to do?
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.
When can you use Section 117?
If a SW application has been or is about to be made and you are waiting for it to be authorised, and you have RGTB evidential material may be CADDed or removed before the search warrant can be issued.
Is Section 117 a Search Power?
No.
When do the powers under Section 117 expire?
Either
- 6 hours from when it was exercised.
- The warrant is available for execution.
- The application for the SW is refused.
Who can issue a SW?
An issuing officer such as:
District Court Judge
High Court Judge
Any person authorised by the attorney general such as: Justice of the Peace Community Magistrate Registrar Deputy Registrar
What restrictions may an issuing officer place on a SW?
3 Rs
- Restricting the time when it can be reasonably executed
- Requiring the occupier or person in charge of place to provide reasonable assistance to the officer executing the SW
- Requiring a report on the SW within a specified time
Issuing officer doesn’t sign SW. What next?
- Record their reasons for refusing to sign.
- Re-draft addressing these issues
- Re-submit to same issuing officer
If the issuing officer doesn’t sign your SW and the issues cannot be addressed… What can you do?
- make further enquiries to support the application
- consider continuing the investigation without a search
- if reasons for not signing seem unjustified - submit report to legal services for direction.
Who may exercise 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 date of issue OR
No more than 30 days as specified by the issuing officer if you have justified why this is necessary and the issuing officer is satisfied.
When can a SW be executed? (As in time of day)
Any time that is reasonable under the circumstances OR
A restricted time as required by the issuing officer as a condition of execution.
When is a SW considered executed?
- evidential material specified in the SW has been seized OR
- leave the place, vehicle or other thing, and do not return within 4 hours
How often can a SW be executed?
Once, unless
More than one execution is applied for, justified, and authorised in SW.
If you feel that safety or prejudice to investigation will occur fulfilling your SW obligations, when must you apply to a judge to postpone these obligations?
At the time of the SW application or before 7 days has passed after the SW execution
Rules and Obligations and Additional Powers when executing a SW:
Section 110, 112, 116, 118, 119, 121, 122, 123, 125, 131, 169?
110 - powers incidental to search
112 - items of uncertain status may be seized
116 - securing place vehicle or other thing to be searched - excluding any person from there.
118 - powers of detention incidental to search of places or vehicles
119 - powers of search by person who has powers of arrest
121 - stopping vehicles for search
122 - moving vehicles for search and safekeeping
123 - seizure of items in plain view
125 - the rules for searching people
131 - identification and notice requirements when searching places, vehicles and other things
169 - reporting
What does GSMEAC stand for?
Ground Situation Mission Execution Administration and Logistics Command and Signals
What section covers your announcement obligations?
131
When exercising a power to search a person you may (4 things):
Detain the person
Use force that is reasonable
Search any item they are wearing, carrying, or is in their possession or immediate control
Seize anything if it is the subject of the search or may be lawfully seized
Section 121 - power to…?
Stop a vehicle if you intend to search it (using SW or warrantless power)
Section 127 allows you to…
Enter any place to locate vehicle to execute search warrant - IF RGTB that vehicle is there.
Section 112
Items of uncertain status - remove to determine if you can seize lawfully or to examine
Section 123
Seizing items in plain view - if RGTB you could have seized item under SW or warrantless power
Oral application. How long do you have to complete application capturing info conveyed?
Within 24 hours
How do you show informations reliability for Hearsay evidence?
The informants reliability - reliable info in the past?
Information confirmed by other means
When will compensation be paid for damage as a result of SW
If the execution is justified by the outcome - seldom paid.
If not justified by outcome - unlikely, however, case by case basis.
If unreasonable search or unjustified damage - compensation may be available
If damage as result of mistake (eg wrong address) - likely available
How might you secure a premises after a forced entry?
- Liaise with owner or occupier to secure it
- At owner/occupiers expense, engaging a contractor
- Attending staff effecting a temporary repair - e.g boarding up a window.
What is Police Surveillance?
- Observing and any recording of that observation (people, places, vehicles, things)
- Ascertaining (tracking) the location of a thing or person, or whether a thing has been interfered with or tampered with
- Intercepting a private communication
What is a surveillance device?
A device which assists and enhances your normal capabilities to carry out surveillance. (E.g. visual surveillance device, tracking device, interception device)
Define - Visual surveillance device
(a) means any electronic, 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, but
(b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
46(c) Activities which require a surveillance device warrant
46 (c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.
Define - Private Premises
A private dwelling house, a marae, and any other premises that are not WITHIN the definition of a non-private premises
Define - Non-private premises
Premises, or part of a premises, to which members of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway station, airport or shop. Note: not all parts of hospitals, bus stations etc are non-private premises. Areas that would be considered as private are:
- hospitals - theatres, consulting rooms
- railway station - office area, staff meal room
Define - Private activity
The definition of private activity acknowledges fundamental human rights. A participant in an activity can reasonably expect the activity is private, if it is carried out in a private premises.
Define - Private communication
(a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) 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
(b) does not include a communication of that kind occurring in circumstances 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.
Define - Trespass Surveillance
Surveillance that involves trespass onto land or trespass to goods.
Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.
For surveillance purposes, if you do not have consent to enter onto private property, then you are trespassing.
Section 46 (d)
Use of a surveillance device that involves trespass onto private property.
Any warrant application to use an interception device must be for obtaining evidential material for serious offences. What is considered serious?
7 years imprisonment or more
Define - Curtilage
Means the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’.
It defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.
Section 46 (e) Activities for which surveillance device warrant is required
(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 that observation, for the purposes of a single investigation, or a connected series of investigations, exceeds -
(i) 3 hours in any total 24hr period OR
(ii) 8 hours in total
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 communication; but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.
Section 46 (a) Activities for which surveillance device warrant required
(a) use of an interception device to intercept private communications
A surveillance device warrant will only be authorised for use of an interception device for gathering evidential material for…
- Offences 7 years + imprisonment
- identified arms act 1983 offences
- identified psychoactive substances act 2013 offences
Define - Tracking device
(a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
(i) The location of a thing or person;
(ii) Whether a thing has been opened, tampered with, or in some other way dealt with; but
(b) does not include a vehicle or other means of transport, such as a boat or helicopter.
Section 46 (b) Activities for which surveillance device warrant required
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.
How long is the warrantless period for use of a surveillance device in an emergency or urgency situation?
Not exceeding 48 hours.
Consent Search - What must you record?
Your grounds for requesting a consent search
Make notes about the search in your notebook
Can a person withdraw their consent from a consent search?
Yes. At any time. You can only continue if you can invoke a warrantless search power to continue the search.
Obligation: Notice. What notice are you required to give for:
- a SW
- a warrantless power
SW - copy of the search warrant
WP - POL1275 search notice to occupier or Give Name of enactment under which the search is taking place and the reason for the search. (Unless impractical to do so)
What can you do if a detained person to be searched attempts to leave the place or vehicle?
Use reasonable force to detain the person to be searched
If someone else arrives at a place or vehicle and starts talking to the person you have detained under Section 118, you may:
- Exclude the person from the search scene if you have RGTB they will obstruct or hinder your powers
- Detain that person to determine if there is a connection between them and the object of your search.
- Search that person if you have RGTB they may have evidential material on them
- Search that person if you have RGTS that they may have a dangerous item that poses a threat to safety and you believe you need to act immediately to address that threat.
A surveillance device warrant may authorise the use of a tracking device to obtain evidential material for the investigation of what?
Any offence punishable by imprisonment
Situations of Emergency or Urgency
What are the two key ingredients that must exist for a situation to be recognised as one of Emergency or Urgency - and what do they mean?
‘Entitled to apply’
Means - you would be entitled to make an application for a surveillance device warrant as the situation is one of 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.
Recognised privileged material includes material gained through communication with:
- Legal advisors
- Ministers of religion
- Medical practitioners
- Clinical psychologists
- Informers (informants)
- Journalists
When a search involves privileged material held by a specified person, you must:
Ensure that the person or their representative is present when the search is undertaken.
Give the person a reasonable opportunity to claim privilege.
Which sections in the S & S act cover consent searches?
91-96
Obligation (Reason) for warrantless search.
State the reason for your search.
Provide warrantless search notice to occupier (pol 1275)
Before initial entry you must: (obligations)
Identify yourself by name or QID - provide evidence of identity if not in uniform.
Announce your intention to enter and search
State the name of the act
Give notice by providing a copy of the search warrant
Remember to caution them (bill of rights) if detained for the purpose of a search.
What are some other obligations (Reason)
- If warrantless - state reason for the search.
- provide copy of SW or warrantless search notice to occupier (pol 1275)
- report your use of certain powers
- consider privilege
How can you fulfill your Notice obligation?
SW - provide copy of the SW
WS - state name of enactment and reason for search (unless impracticable to do so)
(Search notice to occupier (pol 1275) fulfils this obligation)
Section 110 authorises you to:
Stabbers Cut
Search any item/s found in that place, vehicle or thing (if reasonable)
Take photographs, sound and video recordings and drawings
Access a computer system or other data storage device
Bring and use any equipment found on the place, vehicle or other thing.
Bring and use a trained law enforcement dog and its handler
Enter and search the place, vehicle or other thing that you are authorised to enter and search
Request assistance with entry and search
Seize anything that is the subject of the search or anything else that may be lawfully seized.
Copy intangible material eg computer data.
Use reasonable force in respect of any property for the purpose of carrying out the search and lawful seizure
To copy any document or part of a document that may lawfully be seized
What is privilege?
Privilege allows the holders of particular information to refuse to disclose it. No privilege applies if the information is made, received, compiled or prepared for a dishonest purpose or to enable or aid any person to commit an offence.
If you are searching and have RGTB that anything discovered may be privileged you must:
You must provide the person an opportunity to claim privilege
Not practicable in the circumstances to apply for SW. With supervisor approval you can:
- apply for a search warrant orally
- apply for a search warrant without approaching an issuing officer in person (by using the phone or email).
- secure a scene while you apply for SW for max period of 6 hours. (S117).
Explain how to do a SW risk assessment.
Risks must be: Identified, assessed, considered in planning how you execute the SW.
A planned action risk assessment and CARD prompt must be completed and TENR applied.
When will a SW be authorised?
If the issuing officer is satisfied the application clearly shows:
RGTS offence punishable by imprisonment has been, will be, about to be committed.
RGTB that the search will find evidential material in respect of the offence in the place, vehicle or other thing.
In preparing a SW execution plan you must:
Review and reassess the identified risks
Work with others to identify and consider any further risks
Plan how to manage and minimise any identified risks
Determine how risk management will be communicated in your search warrant breifing
The person holding a SW briefing should:
Umpire
Use maps, charts, diagrams, photographs
Make sure all required staff are present
Provide copies of all important documents
Identify and advise staff of what they can record in their notebooks during the briefing as all entries may be disclosable.
Reinforce verbal information given with visual prompts
Ensure all staff present are clear about their roles and responsibilities
Obligation - entry
Identify yourself (name, unique identifier)
Provide evidence if not in uniform
State name of the Act and reason for your search
Announce your intention to enter and search
Provide a copy of the search warrant
When can you use section 112?
Exercising a search power
Carrying out a lawful search of a person
Lawfully in a place or vehicle
Duration of a production order
As specified in the order - Not ecceeding 30 days after the date the order is made
District approver - production orders - before granting approval
- grounds for applying for a PO are met
- resource benefit of making the application is advantageous to Police
- information sought doesnt make unreasonable or unnecessary demands on the telecommunications provider.
If your PO application relates to a news media organisation you must:
Obtain approval from a Police Executive member in the case of PNHQ or a district commander for a district matter.
Grounds for applying for a Production Order
Suspect an offence has been, is being or will be committed
Believe the documents sought:
- Constitute evidential material in respect of the offence
- 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
Oral application for Production Order - when must the officer complete application capturing info conveyed to issuing officer?
As soon as practicable- Within 24 hours
What is interception?
In relation to private communication includes hear, listen to, record, monitor, acquire or receive the communication either:
- when it is taking place
- while it is in transit
Surveillance without warrant in situations of emergency or urgency - only permitted when:
Entitled to apply and impracticable in the circumstances ingredients apply.
The suspected offence (has been, will be, about to be) committed is:
- punishable by 14 years imprisonment or more and
- you believe that the use of the surveillance device would obtain evidential material in relation to the offence:
- an arms act 1983 offence
- a drug offence OR
A situation likely to cause injury or serious property loss and surveillance necessary to prevent offending or a situation presenting risk to life and safety and surveillance is necessary as an emergency response
Approval to use an interception device in emergency situation to be obtained from a D/I unless
- immediacy of situation does not allow for prior planning
- statutory criteria is met
- opportunity to obtain evidential material would otherwise be lost if not taken at the time.
Reporting on use of surveillance device in urgency or emergency - when must you provide a notification to a judge
Within 1 month after the last day of any period of 48 hours or less which the surveillance device was used.
How long is a surveillance device warrant issued for?
No more than 60 days after date of issue.
