Search and Surveillance Flashcards
Reasonable Grounds to Suspect definition
Means having a sound basis for suspecting that a situation or circumstance exists
Reasonable Grounds to Believe definition
Means having a sound basis for believing that a situation or circumstance exists
When you have formed RGTS or RGTB what must you be able to do:
Record your reasonable grounds for using a search power in your notebook. This is your decision log.
When you have formed RGTS or RGTB what may you be required to do?
- Submit a report on your decision to use a power and your grounds for using it
- Justify your use of a power in court or in other formal proceedings
What search options are available to you?
- A search warrant
- A warrantless search power if a warrant is not practicable in the circumstances
- A consent search if you do not have grounds for a warrant or a warrantless search
Why should we use a Search Warrant?
- It ensures judicial oversight
- Provides greater protection for the public and Police
- Requires recording and reporting of results
The end-to-end process required by a warrant provides checks and balances to protect the police
Consent Search - Section & Act
Sections 91 - 96 S&S 2012
Consent searches - what circumstances MUST exists for you to conduct a search by consent?
- To prevent the commission of an offence
- To investigate whether an offence has been committed
- To protect life or property
- To prevent injury or harm
One of the above circumstances must exist to justify a consent search (S92)
What MUST you advise the person from whom consent is sought prior to conducting the search?
- Of the reason for the proposed search; and
- They may consent or refuse to consent to the search
What if someone withdraws their consent for a search?
They may withdraw their consent at any time. If this occurs, stop the search IMMEDIATELY, unless you can invoke a warrantless search power to continue the search.
What are the restrictions around age and consent searches?
A person under 14 cannot consent to the search of a place or vehicle with the exception being they are the sole occupant / driver of a vehicle as there is no one else who can provide consent.
Evidential material definition
Means evidence of the offence, or any other item, tangible or intangible of relevance to the investigation of the offence.
Tangible definition
Means something that may be touched
Intangible definition
Means something that is unable to be touched such as an email address or access information to an Internet data facility
CADD definitions and examples of each
Concealed - Hidden / buried
Altered - Serial number removed / changed
Damaged - Firewall removed from a vehicle
Destroyed - Consumed (food/drugs), burned by fire
You must have RGTB that the EM will be CADD to conduct a warrantless search for EM.
Section 131 Search and Surveillance Act 2012 - what does this outline?
Section 131 outlines the obligation of identification, intention, reason and notice.
Under Section 131 Search and Surveillance Act 2012, before initial entry is made you must:
- Identify yourself by name or QID
- Provide evidence of identity if not in police 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, if someone is detained to provide them with their BOR.
Under Section 131 Search and Surveillance Act 2012 what must be provided to the subjects of the search / owners or occupiers of the location being searched?
- A copy of the Search warrant or warrantless search notice and an inventory of items seized
- Report the use of certain powers
What are your obligations if no one is present at the place you intend to search?
If you have RGTB that no one is present then you are not required to comply with identification, intention and notice requirements on initial entry.
What are the circumstances that do not require you to comply with Section 131 S&S12 being notification?
If you have RGTB it would
- Endanger any persons safety
- Prejudice the successful use of the entry and search power
- Prejudice on going investigations
What if a person refuses entry?
You can use reasonable force to enter if the person refuses entry (S110)
Section 110 Search and Surveillance Act 2012 - brief explanation
Special Powers when conducting a search of a place, vehicle or other thing
What does Section 110 authorise?
It authorises you to:
- Enter and search the place, vehicle or other thing
- Search any item or items found in that place, vehicle or other thing
- Use reasonable force in respect of any property for the purposes of carrying out the search and seizure
- Request assistance
- Bring with / use any equipment found on the place, vehicle or other thing
- Bring and use a trained law enforcement dog and their handler
- Copy any document or part of any document that can be lawful seized
- Access any computer system or other data storage device
- Copy intangible material
- Take photographs, sound and video recordings and drawings
What to do if a search is impeded by any person
If your search is impeded by any person or you have RGTB that it will be impeded:
- S116 allows you to:
- Exclude that person from the place, vehicle or other thing being searched
- Give any reasonable direction to that person
What additional powers are available to you that you can use alongside your original search power (warrantless or warrant)
Section 116 - Power of exclusion
Section 118 - Power of detention
Section 119 - Power to search people at place being searched
Section 118 - what power does it give you?
It gives you the power to DETAIN when searching places and vehicles for the purpose of determining whether there is any connection between a person at the place or in or on the vehicle and the object of the search.
Section 119 - what power does it give you?
It gives you the power to 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
- 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
Section 120 - what power does it give you?
If you are in FRESH PURSUIT and with RGTB that EM is still on the person, you have the power to ENTER any place to APPREHEND the person and SEARCH the person or vehicle
What does section 125 stipulate with regard to searching people?
- You can search any item that the person is wearing, carrying, has in their possession or immediate control.
- Any search you undertake must be conducted with DECENCY and sensitivity.
- It MUST be conducted in a manner that affords the person being searched a degree of privacy and dignity.
- You can SEIZE any item that person is wearing, carrying or is in their immediate possession if that is the item you are searching for
What can you do if a detained person attempts to leave a scene?
- If a detained person attempts to leave the place or vehicle you can use REASONABLE force to detain the person to be searched.
What can you do if a person arrives at a scene being searched?
If someone arrives at the place or vehicle and starts talking to those detained you may;
- EXCLUDE that person if you have RGTB they will obstruct / hinder the search (S116)
- DETAIN the person to determine their connection to the scene or subjects (S118)
- SEARCH the person if you have RGTB they have EM on them (S119)
- SEARCH the person if you have RGTS they have a dangerous item on them that poses a threat to life or safety
What is privileged material?
Privileged material includes material gained in communication with:
- Legal Advisors
- Medical Practitioners
- Clinical Psychologists
- Ministers of Religion
- Informers
- Journalists
What does ‘privilege’ allow?
Privilege allows the holders of the particular information to refuse to disclose the information.
When does privilege not apply?
If the information is made, received, compiled or prepared for a dishonest purpose or to enable or aid any person to commit an offence
What must you do 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
What must a person who has claimed privilege do in a reasonable timeframe?
Provide a list of things (such as documents) which they claim are privilege
They may also make a copy of any document before you seize it, and they may object to seizure of any document.
What to do if you expect to receive a claim of privilege?
Secure the item in question but do not continue to search or examine it. Do not conduct your investigation with reliance on it unless no claim of privilege is made, if privilege is withdrawn or the search is in accordance with the direction of the court determining the claim of privilege.
What is the seven step process when applying for a search warrant?
- Obtain prior approval
- Obtain online approval
- Obtain Issuing Officer Authorisation
- Plan and brief search warrant execution
- Execute Search warrant
- Report on outcomes
- File investigation records
If a search warrant is not practicable in the circumstances, how else can you apply for a search warrant?
With supervisor approval you may apply for a warrant
- Orally
- Apply for a search warrant without approach to an issuing officer (Email or phone)
- Secure the scene under S117
What must you do after the search warrant is executed if an oral search warrant application was made / obtained?
You must provide a written/online application as soon as possible that back captures the required information.
What are the four things you must have done before making an application for a SW online?
- Be sure that there is RGTS an offense punishable by imprisonment has / is or will he committed AND RGTB that the search will find EM in respect of the offense
- Have checked the target history in NIA
- Have assessed the risks associated with executing the SW
- Have obtained initial approval from a supervisor at or above the rank of sergeant
What are the four things you must have done before making an application for a SW online?
- Be sure that there are:
- RGTS an offence punishable by imprisonment has been, will be or is being committed. AND
- RGTB the the search will find evidential material in respect of that offence in the place vehicle, or other thing.
- Have checked the targets history in NIA
- Have assessed the risks
- Have obtained prior approval from a supervisor
Search warrant risk assessment - These risks must be?
- Identified
- Analysed
- Considered in planing how to execute the search warrant
Section 117 Search and Surveillance Act - What can you do?
If a SW application is about to be made or has been made and you are waiting to hear if it has been authorised, and you have RGTB that evidential material may be CADD or removed before the search warrant can be issued, you may
- Enter and secure a place, vehicle or other thing and
- Secure any item found in that place
- Direct any person to assist with entry and securing the place, or vehicle or securing items in it
When else could section 117 be used?
If you arrive for execution of a search warrant and you realise you have a search warrant for the wrong address / flat number. Section 117 can be used while a SW application is made (orally or through the S&S system)
How long may the powers under S117 be exercised?
The powers conferred by this section may be exercised until the first of the following occurs:
- the expiry of 6 hours from when the power is first exercised
- The warrant is available for execution at that place or vehicle or in respect of that other thing
- The application for a search warrant is refused
Who can issue a search warrant?
An issuing officer:
- A district court / high court judge
Someone authorised by the Attorney General:
- Registrar
- Deputy Registrar
- Community Magistrate
- Justice of the peace
When will a Search warrant be authorised?
A SW will be authorised when the issuing officer is personally satisfied that there is :
- RGTS an offence punishable by imprisonment has occurred.
- RGTB that the search will find evidential material in respect of the offence
What restrictions can an issuing officer put on the search warrant?
- Restricting the time upon which the search warrant can be reasonably executed.
- Requiring the occupier or person to provide reasonable assistance to the officer executing the search warrant
- Requiring a report on the search warrant within a specified time
What should you do if the Issuing Officer does not sign the search warrant application?
- Record the issuing officers reason for refused
- Consider the issues raised and if possible re-draft the application, ensuring you have addressed these issues.
- Re-submit the application to the same Issuing Officer
What should you’d o if the concerns raised by the issuing officer cannot be met?
- Make further enquiries to support the application
- Consider whether to continue your investigation without conducting a search
- If the reason for not signing the search warrant was not justified, submit a report to Legal Services for direction
Who can execute a search warrant?
The person to whom it is directed or any constable
How long is a search warrant valid for?
- No more than 14 days from the date of issue as specified by the issuing officer OR
- No more than 30 days from the date of issue, as specified by the Issuing Officer, if you have justified why this is necessary
When can a search warrant be executed?
- At any time that is reasonable under the circumstances OR
- At a restricted time required by the Issuing Officer as a condition of the execution
When is a search warrant considered executed?
When you:
- Have seized the evidential material specified in the search warrant OR
- Leave the place, vehicle or other thing to be searched and do not return within 4 hours
How often can a search warrant be executed?
- Once, unless
- More than one execution has been applied for, justified and authorised by the issuing officer - You must detail the reason for the multiple entries
Risk assessments in regards to SW must be ongoing and in preparing a search warrant execution 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 communication in your search warrant briefing
When can you apply to postpone compliance (S134) with notification requirements?
If providing a copy of the search warrant or inventory would:
- Endanger the safety of any persons or
- Prejudice ongoing investigation
You may apply to a judge to postpone these obligations to provide a copy of the search warrant
How can you apply to postpone the obligations under S131?
An application to postpone is made under section 134 and should be presented to the judge:
- At the time the SW application is made
- Before 7 days has passed after the search warrant execution
How long can a judge postpone the obligations under S131 for?
No more than 12 months (for long term investigations)
When executing a SW reasonable force may be used to:
- Enter the place, vehicle or other thing being searched (Section 131)
- Search the property and seize (Section 110)
- Search a person (Section 125)
SW briefings must be conducted using the GSMEAC template - what does this stand for?
Ground
Situation
Mission
Execution
Admin / Logistics
Command and signals
What is covered under Ground (GSMEAC)
- Location to be searched
- Address
- Neighbours
What is covered under Situation (GSMEAC)
- Reason for seeking the search warrant (Circumstances)
- Background on the suspect/s
What is covered under Mission (GSMEAC)
- Address
- Suspect/s
- Specified evidential material sought
What is covered under Execution (GSMEAC)
- Timings
- Method of entry (Use of Force)
- Roles e.g. O/C Scene, Exhibits etc
- Responsibilities
- Obligations on entry
- Managing suspects
- Searching for EM
- Recording EM
- Assisting vulnerable people
- Sequence of events
- Managing risks and ensuring safety
What is covered under Admin/Logistics (GSMEAC)
- Travel to and from the place to be searched
- Timing of the SW execution
- Recording of EM seized
What is covered under Command and Signals (GSMEAC)
- Cell phone numbers and radio channels
- Before executing the search warrant
- During the execution
- Debrief
When holding a search warrant briefing you should:
- Ensure all staff are present
- Reinforce verbal information given with visual prompts
- Use maps / charts, diagrams and photographs
- Provide copies of all important documents
- Ensure all staff present are clear about their roles and responsibilities
- Identify and advise staff of what they can record in their notebooks during the briefing (start of)
What are your obligations when entering for a Search Warrant?
- Identify yourself by name or QID
- Present police ID if not in uniform
- State the name of the act and the reason for the search
- Announce your reason for the search
- Provide a copy of the Search Warrant.
If occupants are detained (S118) you must provide them with their BOR
What to do if you have concerns the occupants will advise others of the SW scope (What is sought)
You can delay providing the occupants with a list of the EM sought and delay complying with S131 obligations at the time of entry
What to do if no one is home when a SW is executed
If you have RGTB that no one is at the address, you do not have to comply with S131. You must leave a copy of the SW and an inventory of items seized - if this is not practicable at the time then this must be done within 7 days of the SW being executed
When executing a SW for an offence against the Misuse of Drugs Act, you may:
Search any person found in the place or vehicle you are searching
What obligations must you comply with (S125) when searching a person in relation to the MODA?
- Identify yourself by name / QID
- Advise the person of the enactment under which the search is taking place and the reason for the search
- Produce evidence of identity if not in police uniform
When exercising a search power you may:
- Detain the person to enable the search to be carried out
- Use force that is reasonable for the purposes of the search
- Search any item that the person is wearing, carrying or is in the persons physical possession or immediate control
- Seize anything carried by or in their physical possession or immediate control if the thing is the subject of the search or may be lawfully seized
Under what section can you stop a vehicle to be lawfully searched?
Under Section 121 Search and Surveillance Act 2012
When may you stop a vehicle under S121?
You may stop a vehicle under S121 if you have the lawful authority to search using:
- A Search warrant
- Warrantless Search Power
S121 is not a SEARCH power and you must therefore have another power available to you.
What does the following section allow you to do:
Section 127 Search and Surveillance Act 2012
Section 127 allows you to ENTER any place:
- To locate the vehicle to execute the search warrant for a vehicle if
- You have RGTB the vehicle is there.
You do not have to specify the place for the vehicle to be located - your search warrant target is the vehicle.
What does the following section allow you to do
Section 112 Search and Surveillance Act 2012
If you are carrying out a lawful search and it is not reasonably practicable to determine whether any item can be lawfully seized you may:
- Remove the items for examination or analysis offsite to determine if you can seize them lawfully
NOTE: any item you remove must be within the scope of the original search
What does the following section allow you to do:
Section 123 Search and Surveillance Act 2012
It allows you to seize any item you find in plain view when you are searching or that you observe if you:
- Have RGTB that you could have seized that item under a search warrant or any other search power
Under what section are production orders made?
Section 74
What is a production order?
A production order is an order made under section 74 of the search and surveillance Act 2012 and requires a person or organisation to produce documents to enforcement agencies as evidential material of a specified offence.
Production orders vs search warrants - what should be considered
You have the choice whether a standard search warrant or production order should be sought. While compliance costs are associated with production orders they are less than those incurred by Search warrants.
Production orders are also less intrusive and are a good alternative to a SW.
What is the duration of a production order?
30 days from date of issue
Who may apply for a production order?
Any enforcement officer
Do you need approval to apply for a oproduction order?
You must seek prior approval from your district approver before making an application seeking information
What will be considered before a production order application is granted?
- The grounds for applying
- The resource benefit
- Ensuring the information sought does not make it unreasonable or unnecessary demands on the telco provider.
What must you do prior to applying for a production order for a News Media Organisation?
You must obtain approval from PNHQ or the district commander for a district matter and follow the guidelines on search warrants production orders and examination orders involving media organisations
What are the grounds for applying for a production order?
You must have:
- RGTS an offence has been, will be or is being committed and
- RGTB that the documents sought by the proposed order:
- Constitute EM in respect of the offence and
- 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
When will an oral production order application be considered?
If the issuing officer is satisfied that:
- Requiring a written application would result in a delay that would compromise the effectiveness of the search and
- The question of whether the order should be issued can be properly determined on the basis of an oral communication AND
- All required information is supplied to them
If an oral application for a production order is granted what must be done?
- The issuing officer must record the grounds for the application as soon as practicable
- The application must complete the application form capturing the information conveyed as soon as practicable and in any event within 24 hours
Can hearsay evidence be used in a production order application?
Yes hearsay evidence can be used to outline the grounds for the application if it is highly reliable.
How can you indicate the reliability of hearsay evidence?
State:
- Sufficient information to prove reliability
- The informants reliability and whether they have provided reliable information in the past
- Whether the information has been confirmed by other means.
When will compensation for damage caused as a result of a Search Warrant ‘seldom be paid’?
Where the execution of a search warrant or other stat power is justified by the outcome and the resulting loss or damage is suffered by the subject of the search or process.
What is an example of compensation ‘seldom being paid’?
When a search warrant is executed at an address in respect of cannabis cultivation, where plants are found and is aware of the cultivation or is responsible for it.
wWhen will compensation for damages caused by the execution of a search warrant be ‘unlikely to be paid’?
Where the execution of the search warrant is not justified by its outcome but the grounds for the execution are sound.
What is an example of compensation that is unlikely to be paid?
A search warrant is executed at an address where the occupants are believed to have been dealing methamphetamine. The grounds for the SW included credible and corroborated information from more than one informant. No illicit drugs were located.
When will compensation for damages caused by the execution of the search warrant ‘generally not be available’
Damage caused by tenants to rental properties.
Landlords and those who have boarders living in a property belonging to them, will generally carry the risk in respect to illegal activity taking place on the property. Where a search warrant or other stat power is justified by the outcome of its execution or the grounds for the execution were sound, the compensation for justifiable damage will generally not be available.
When will compensation for damages caused by execution of the search warrant ‘may be available’
When there is unreasonable searches or unjustified damage.
If the method of entry and the manner in which the search is conducted is unreasonable in the circumstances and if there is unjustified damage, compensation may be available.
When will compensation for damages caused by execution of the search warrant ‘likely be available’?
In cases where a mistake has been made in the execution of a search warrant or stat power.
E.G SW executed at wrong address.
Will compensation be paid under S14?
Damage caused to properties made under section 14 are seldom paid and are the owners/occupiers expense.
What should be done when a claim has arisen or is likely to arise for compensation for damage?
The claim should be directed to the District Commander or National Manager - no indication should be given to the claimants on whether or not compensation will be paid as this preempts the decision.
The information provided to those above should detail:
- The circumstances surrounding the warrant/warrantless power
- The grounds for its execution
- The damage caused and the surrounding circumstances
- The outcome of the search warrant
- The occupants details.
- The nature and the basis of the claim
- Any steps taken by police to prevent further damage
What must be done when leaving a SW that is insecure due to damage caused by Police?
A premises should never be left insecure and unoccupied post a search warrant as a liability for loss could arise.
This means police might need to:
- Engage with the owner / occupier to secure their own property. Offer to wait a certain amount of time for them to arrive to do so.
- At their request engage a contractor to make the premises secure, at their expense or
- Effect a temporary repair
When police lawfully enter a private premises what may you do in terms of surveillance (without warrant) ?
Police may carry out:
- Unaided observation
- Unaided sense of hearing
- Unaided sense of smell
You can also record, by way of audio or visual device, what you see or hear there, providing the device does not enhance your ability to observe or hear.
What is surveillance?
Police surveillance is planned and directed activity, open or covert
What is the purpose of surveillance?
- Observing, and any recording of that observation, of people, vehicles, places and things
- Ascertaining (tracking) the location of a thing or person or whether the thing has been interfered or tampered with
- Intercepting private communication
What does the Search and Surveillance Act regulate (Surveillance)?
the use of surveillance activities undertaken with a device. It establishes clear boundaries for the lawful use of a surveillance device:
- Where trespass is not involved
- Where trespass is involved
- Where warrantless powers exist
What must risks be (for surveillance purposes)?
- Identified
- Assessed
- Considered in planning before surveillance is executed
What is a surveillance device?
It is a device that assists or enhances your normal capabilities to carry out surveillance
May be any one or more of the following:
- A visual surveillance device
- A tracking device
- An interception device
What is a visual surveillance device?
Visual surveillance devices
- Means any electronic, mechanical, electromagnetic, optical or electro-optical apparatus, equipment, or other device that is used to observe, or to observe and record, a private activity but
- Does not include spectacles or contact lenses or similar device that is used to correct subnormal vision to that of no more than normal.
Where is the use of a Surveillance Device (without warrant and not in cases of emergency/urgency) restricted?
in places an individual ‘ought reasonably to expect’ are private.
This includes land (in private ownership) and any private premises on that land and any ‘ goods ‘
What is the definition of ‘goods’?
Goods generally means chattels and include vehicles and other tangible belongings.
Trespass surveillance
Surveillance is unlawful if it involves a trespass, which is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by a surveillance device warrant.
Private premises definition
Private premises means a private dwelling house, a mare, and any other premises that are not within the definition of non-private premises.
What is the definition of a ‘non private premises’
Non-private premises means 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: Some premises can fall under the definition for both private and non private premises as different parts have different uses.
What is the definition of ‘private activity’
This definition acknowledges fundamental human rights and covers where a participant in an activity can ‘reasonably expect’ the activity is private, if it is carried out in a private premises.
Can private activity occur in a non private premises?
Yes - E.G sleeping in a hotel room or getting changed in a changing room.
What is the definition of a ‘private communication’
(a) Means a communication (whether oral or written) made under circumstances that may be reasonably taken to indicate that any party to the communication desires it to be confined to the parties in the communication and
(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 will be intercepted by some other party without having the express or implied consent to do so.
When is a SDW required for the purposes of intercepting communication?
A SDW must be obtained where a reasonable expectation of privacy are interfered with or intruded upon by the use of an interception device.
What is trespass surveillance?
It is surveillance that requires trespass onto land or trespass to goods.
It occurs the moment an enforcement officer steps onto private property without consent.
What are the restrictions on the use of a visual surveillance device with warrant?
It will only be authorised for serious offences (7 years imprisonment or more)
What are the restrictions on the use of an Interception device with warrant?
An interception device will only be authorised for an offence punishable by 7 years imprisonment +
What is the definition of curtilage?
Curtilege is the land immediately surrounding a house or dwelling, including any closely associated buildings or structures, but excluding any associated ‘open fields beyond’.
What does the term ‘curtilage’ define?
It defines the boundary within which a home owner can have a reasonable exception of privacy and where ‘ common daily activities’ take place.
When can a visual surveillance device be used to capture the curtilage of a property without warrant?
If this observation / recording is only for
- 3 hours in a 24 hour period or
- 8 hours in total
When must you seek a SDW for visual observation / recording of private activity in the curtilage of a property?
If the duration of its use, for the purposes of a single investigation, or a connected series of investigation, exceeds:
- 3 hours in any total 24 hours period or
- 8 hours in total
What is “intercept” in relation to private communication?
Intercept includes to hear, listen to, record, monitor, acquire or receive the communication either
- When it is taking place or
- While it is in transit
What is an interception device?
(a) Means any electronic, mechanical, electromagnetic, optical or electro optical instrument, apparatus, equipment or other device that is used or capable of being used to intercept or record a private communication
(b) does not include hearing aids or similar devices that is used to correct subnormal hearing of the user to no more than normal hearing
For what offences will a SDW be issued for an interception device?
- Serious offences (7+ years imprisonment)
- identified arms act offences
- identified offences against the psychoactive substances act
What is a voluntary oral communication?
Is a communication between one or more persons where at last one party in the communication gives their consent to the communication being recorded (Section 47)
Is there a requirement to obtain a SDW to intercept a voluntary oral communication under Section 47?
There is no requirement to obtain a warrant
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
(i) the location of a thing or a 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 hellicopter
When can a tracking device be authorised?
to obtain EM for the investigation of any offence punishable by imprisonment
What does section 48 Search and Surveillance Act cover?
Situations of emergency or urgency where Surveillance Devices can be used without warrant for a period of no more than 48 hours.
What are the two key ingredients for a situation to be recognised as one of emergency or urgency?
- ‘entitled’ to apply’ means you would be entitled to make an application for a SDW 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.
When can a SD be used without warrant in situations of emergency or urgency?
It is permitted only when ‘entitled to apply’ and ‘impracticable in the circumstances’ applies and the suspected offence has / is / will be committed and is:
- Punishable by 14 years imprisonment or more and
- You believe that use of the surveillance device would obtain EM in relation to the offence
- An arms act 1983 offence
- a person by reason of their physical / mental condition is incapable of having proper control fo the arms or may kill / cause GBH
- Under the Domestic Violence Act 1995 a protection order or PSO is in force
- There are grounds to make an application against him or her
- A drug offence
What other situations can a Surveillance Device be used in situations of emergency or urgency
There is a situation that is:
- Likely to cause injury or serious property loss / damage and surveillance is necessary to prevent offending from being committed
- Presenting risk to life and safety and surveillance is necessary as an emergency response (S14)
What must you do if the use of a Surveillance Device (Under S48) is likely to exceed 48 hours?
You must make an application for a SDW
Who must approve the use of an interception device in cases of emergency / urgency?
Detective Inspector
What are the exceptions to gaining approval from a Detective Inspector prior to the use of a surveillance device in situations of emergency / urgency?
- the immediacy of the sitauation does not allow for prior planning and approval
- Statutory criteria is met and
- An opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time.
What does S60 S&S12 Act stipulate?
That you must report on the use of surveillance device in situations of urgency or emergency within 1 month after the date of the last day of any period of 48 hours or less over which the DS was used.
How long can a Surveillance device warrant be issued for?
A surveillance device may be issued for a period of no more than 60 days after the date on which the warrant is issued
What do you do if you need a SD for longer than the 60 day period?
To extend the period of 60 days or the lesser period for which the warrant is valid, a new application for a surveillance device warrant will be required.
Section 46(a)S&S12
SDW is required for use of an interception device
Section 46(b) S&s12
SDW is required for used of a tracking device
Section 46(c) S&S12
A SDW is required for the use of a visual surveillance device to record private activity in a private premises
Section 46(d) S&S12
A SDW is required for any use of a SD that requires trespass
S46(e) S&S12
A SDW is required for the use of a SD to observe, or observe and record, if any part of that observation occurs within the curtilege of a private premises and exceeds
- 3 hours in a 24 hours period or
- 8 hours in total
