Search and Surveillance Flashcards

Question

Disadvantages of using consent searches

Answer 1

If you have a particular belief or suspicion that is sufficient to exercise a warrantless power or to obtain a search warrant, you must exercise the power or obtain a warrant rather than rely on a consent search. The disadvantages of consent searches are: * 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 * if a search power is invoked after withdrawal of consent, the initial request may be seen to be token and meaningless * the existence or validity of any consent given may be challenged in court.

Answer 2

Every search power (with or without a warrant) authorises you to: * enter and search * request assistance * use reasonable force in respect of property only * seize anything subject to the search or anything that may be lawfully seized * bring and use equipment including using electricity from the place, vehicle or thing * bring and use a trained law enforcement dog * copy documents that may lawfully be seized * access a computer system or other data storage device if any material subject to the search may be located there * copy intangible material that may be lawfully seized * take photographs, sound and video recordings, and drawings where there are reasonable grounds to believe it may be relevant to the search. The search powers listed above are subject to: * any conditions imposed by an issuing officer when issuing a search warrant * the privilege and confidentiality provisions in the Act. (s115) They are also subject to the requirements of “reasonableness” under s21 New Zealand Bill of Rights Act 1990.

Answer 3

If you call on a person to assist you to exercise a search power, or a person has been required to assist you as a condition of a warrant, they are subject to your control and the overall responsibility for exercising the power rests with you. You must, (unless they are another constable): * accompany them when they first enter the place, vehicle, or other thing to be searched, and * provide reasonable supervision of them.

Answer 4

Any person called to assist you to exercise a search power may enter the place, vehicle or other thing to be searched, but can only exercise this and other powers listed above under powers incidental to search as directed by you. For example, an assistant can only search places you determine are lawful to search, take photographs, or bring in and use equipment or electricity that you determine may lawfully be taken or used. Other constables assisting you with searches may exercise any power ordinarily exercisable by them, without direction or supervision from you.

Answer 5

If a search warrant application is about to be made in relation to a place, vehicle or thing, or has been made but not yet granted or refused by an issuing officer: You may… at any time that is reasonable in the circumstances: * enter and secure the place, vehicle, or other thing, and * secure any item(s) found there, and * direct any person to assist with the entry and securing of the place, vehicle or other thing, or the securing of items in it If you......... believe that evidential material may be destroyed, concealed, altered, damaged, or removed before a decision is taken to grant or refuse the issue of a search warrant.

Answer 6

If you are exercising a search power in relation to a place or vehicle, you (or a person assisting you) may detain any person to determine whether there is a connection between them and the object of the search if the person: * was there at the start of the search, or * arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out. You may use reasonable force (eg handcuffing) to effect and continue the detention. The detention: * may be for any reasonable period but no longer than the duration of the search * starts when you direct the person to remain and ends when you tell them they are free to go.

Answer 7

If you are searching a place or vehicle, you may: search any person... If you are searching a place/vehicle you may; Search any person found at that place/vehicle OR Who arrives at the place OR Who stops at, or enters, or tries to enter or gets into the vehicle. If you have reasonable grounds to believe that evidential material that is the object of that search is on that person OR You suspect 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 the threat. Exception: An exception to the above is when the search of the place or vehicle is for drugs. In that case, you can search any person at the scene as a matter of course under ss19 or 21.

Answer 8

If you intend to search a person or vehicle, but that person or vehicle leaves before you are able to start or complete the search; You may apprehend the person OR Enter any place to find them If you have been freshly pursuing the person from the intended search location AND You have reasonable grounds to believe that relevant evidential material is still on the person or vehicle Note: You can effect the apprehension or undertake the search only if you are the officer in fresh pursuit, unless you are acting as that officer's assistant under s113 and under their direct supervision and control.

Answer 9

If a search warrant authorises the search and entry of a vehicle, you may enter any place where you have reasonable grounds to believe the vehicle is to locate and search it.

Answer 10

If you exercise a search power, you must before your initial entry: * announce your intention to enter and search the place, vehicle, or other thing under a statutory power * identify yourself (by name or unique identifier) * if not in Police uniform produce evidence of your identity. You must also, either before or on initial entry provide the occupier of the place or the person in charge of the vehicle or other thing: * a copy of the search warrant, (if it is not possible or practicable to have this in your possession, you may execute: − a facsimile or a printout of an electronically generated copy of the warrant, or − a copy which is endorsed to that effect) (s131(1)) Or * for a warrantless search or securing a scene under s117 when a warrant is pending, (if requested by any person affected) state the name of the enactment under which you are searching or propose to search and the reason for the search, unless it is impracticable to do so in the circumstances. (s117)

Answer 11

You do not have to announce your entry, identify yourself and give a copy of the warrant or notice of the reasons for a warrantless search if you have reasonable grounds to believe that: * no person is lawfully present in, or on the place, vehicle, or other thing to be searched, or * compliance with the requirements would: − endanger the safety of any person, or − prejudice the successful exercise of the entry and search power, or − prejudice ongoing investigations.

Answer 12

If you are carrying out a search, you may, in a manner and for a duration that is reasonable to carry out the search: * secure the place, vehicle, or other thing searched (scene), or any area within that scene, or anything found within that scene * exclude any person from the scene or area, or give them any other reasonable direction, if you have reasonable grounds to believe they will obstruct or hinder you. If requested by any person affected by the search, you must: * identify yourself by name or ID * state the name of the enactment under which the search is taking place and the reason for the search, unless it is impracticable in the circumstances * if not in Police uniform, produce evidence of your identity. S116

Answer 13

Uniform is “distinctive clothing or equipment that is issued by the Commissioner to be worn by Police employees while on duty and having a colour scheme, pattern or style that enables the person wearing it to be readily identifiable as a Police employee.” (s4 Policing Act 2008) For employees to be “in uniform” they must only be wearing items of clothing or equipment that have been approved by the Commissioner. Employees wearing items of clothing or equipment not approved or items approved only for special conditions are not deemed to be “in uniform” and therefore may not be able to legally exercise their powers. For example, wearing of SRBA as the only uniform item by plain clothed employees conducting searches is not sufficient to meet the criteria for being “in uniform”. They must produce identification when exercising search powers.

Answer 14

When exercising any search power you (and any assistant under your direction) may use any reasonable force in respect of any property to carry out the search and any lawful seizure. (s110(c) and s113(2)(b)) You may also use reasonable force against any property or person to effect entry where this is justified under s131(3), eg when entry is resisted or refused. When deciding whether to force entry, you must consider the possibility that such entry may present a danger to: * the Police party * the occupants of the premises, including children or other vulnerable people present * members of the public.

Answer 15

Before forcing an entry, give the people on the premises the opportunity to admit you. Announce your presence (eg by knocking on the door), identify yourself to the occupants and state why you are there and by what authority. If admission is denied or unreasonably delayed and it is safe to do so, you can make a forced entry.

Answer 16

In some situations, announcing the Police presence or purpose may be impracticable and a sudden, unannounced entry, by force if necessary, may be justified. Examples include: * saving a person on the premises from death or injury * situations where giving a warning might endanger the police involved * preventing the destruction of evidence * entering in the course of ‘hot pursuit’ of an offender. (s131(2)) Before making an unannounced forced entry, assess the risk and consider: * the tactical options available * reasonable and practical alternatives to a forced entry * the seriousness of the offence or circumstances * any history of violence on the part of any person present on the premises * danger to Police, the public or people present at the premises * whether there are reasonable grounds for believing that evidence will be destroyed or disposed of.

Answer 17

If any employee is armed during a forced entry, other than during an AOS operation, the requirements detailed in the “Police firearms” chapter of the Police Manual must be met.

Answer 18

When making any forced entry, every effort must be made to ensure Police safety. A uniformed employee should, where practicable, stand at the entry point to ensure occupants or the public realise that it is Police entering the premises. When an unobtrusive approach is required by employees in plain clothes (including AOS members), they must be issued with and wear a distinctive “Police” jerkin. This may be concealed or not worn until immediately prior to entry. You must also consider the safety of the public and others present on the premises.

Answer 19

You can only search for items specified in a search warrant or which are permitted under a warrantless power, and only in places that could contain them. For example, you could not search a drawer for a large television set - although you could for documents relating to it. A vehicle can be searched if it is on the premises, but a vehicle parked on the street must be specified in the warrant.

Answer 20

If you are searching a place or vehicle, you may search any person found there, or who arrives at the place or stops at, enters or tries to enter the vehicle, if you have reasonable grounds to believe: * evidential material that is the object of the search, is on the person, or * the person is in possession of a dangerous item that poses a threat to safety, and that immediate action is necessary to address that threat. You can seize any such evidential material or dangerous item from the person. (s119) Note: In the case of searches for drugs, you may search any person at the scene as a matter of course under sections19 or 21.

Answer 21

Every search power authorises you to seize anything that is the subject of the search or that may lawfully be seized. (s110(d)) If you find evidence of an offence other than the one specified in the warrant or covered by your warrantless power, you cannot seize it unless: * you obtain another warrant, or * you exercise plain view seizure under s123.

Answer 22

If you are not certain if something can lawfully be seized and it is not reasonably practicable to determine that where the search takes place, you may remove the item for examination or analysis to determine whether it may be lawfully seized. (s112) This removal power is limited to when you are exercising a search power to find an item but are not sure if the item found is the actual item you are searching for and therefore whether it may lawfully be seized. For example, if you are exercising a search power to locate cocaine and find a package containing white powder, you may remove the package under s112 for the purpose of examination or analysis to determine whether or not the powder is cocaine and can then lawfully be seized. The s112 removal power could not be used, if for example, the purpose of your search is to find cannabis, but you find a television and are uncertain whether it is stolen or not. You would need to consider whether the circumstances are appropriate to exercise a plain view seizure under s123 or to secure the place, vehicle or other thing being searched while an application for a search warrant is pending under s117. (See “Special powers when search warrants are pending”).

Answer 23

If you are exercising a search power or are lawfully in a place as part of your duties, you may seize any item(s) you find in the course of carrying out the search or as a result of observations at that place, if you have reasonable grounds to believe you could have seized the item(s) under * any search warrant obtained under the Search and Surveillance Act or another enactment, or * any other search power exercisable by you under the Search and Surveillance Act or another enactment. If you seize an item(s) in circumstances where you are not already exercising a search power, you may exercise any applicable power conferred by s110 in relation to the seizure of the items.

Answer 24

Special rules apply in relation to the search and seizure of privileged or confidential materials held by lawyers, ministers of religion, medical practitioners, or clinical psychologists relating to clients or journalists relating to their sources.

Answer 25

The form of notice given before or after a search and seizure varies depending on whether the search was conducted with or without a warrant and whether or not the occupier or person in charge of the vehicle was present during the search. searches conducted when occupier or person in charge of vehicle or thing is lawfully present: give that person before or on initial entry: * copy of the warrant and attached privilege information contained in the ‘Notice to occupier, or the person in charge of vehicle or other thing present during search’, or * if a warrantless search, a copy of the ‘Notice to person present during warrantless search’ (POL1275). Note: The exception to this requirement is when you have reasonable grounds to believe an unannounced forced entry is justified in the following circumstances: * a person is not lawfully present (eg a burglar), or * compliance would: − endanger the safety of any person − prejudice the successful exercise of the entry and search power, or − prejudice ongoing investigations. (s131(1))

Answer 26

searches conducted when occupier or person in charge of vehicle or thing is not present on completion of the search, leave in a prominent position at the place, or in or on the vehicle or other thing: * a copy of the warrant and attached privilege information contained in the 'Notice to occupier, or the person in charge of vehicle or other thing not present during search', or * if a warrantless search, a copy of the ‘Notice to person not present during warrantless search’ (POL1275).

Answer 27

at the time the thing is seized, or as soon as practicable after the seizure and no later than 7 days after that seizure, provide: * to the occupier of the place, or the person in charge of the vehicle or other thing, and * to every other person you have reason to believe is the owner of the thing seized the following: * an inventory of items seized (POL 268) and the accompanying 'Notice to owners and others in relation to things seized, and * a copy of the authority (ie a copy of the warrant, POL1275) if the owner is different from the occupier or person in charge and has not previously received the relevant form

Answer 28

No person: * under 14 years of age (unless found driving a vehicle with no passenger of or over the age of 14 years with authority to consent to the vehicle’s search), or * who you have reasonable grounds to believe is not the occupier of the place or person in charge of the vehicle or other thing can be treated as the occupier of the place or the person in charge of a vehicle or other thing for the purposes of section 131 and sections 133 to 135. (s131(6))

Answer 29

In addition to providing the occupier of a place or the person in charge of the vehicle or other thing notice of what is seized, section 133(1) requires you to provide to any person you have reason to believe is the owner of the thing seized: * written notice specifying what was seized and information about the person's right to have access to the thing or claim privilege in respect of the thing seized, and * a copy of the authority for the search (i.e. the search warrant or for warrantless searches, the name of the enactment under which the search took place.

Answer 30

The section also provides that this information must be provided as soon as practicable after the seizure and, in any case, within 7 days. You must take care when providing this information to owners following seizure. Search warrants or advice of the exercise of a warrantless power and inventory of items seized recorded in the Police Register of Property (PROP) system, produces a receipt from the PROP Desktop of those seized items. All documents contain details of the location from where the items were seized and except for notices following warrantless searches, the identity of the person from whom they were seized. The PROP Desktop receipt may also contain details of property belonging to a number of owners. Providing this personal information to the owner(s) of stolen property which is recovered, may pose a threat to the safety of the person from whom it was seized, eg the owner of a stolen item may be a gang member wanting retribution. There are two courses of action available to you if you have concerns about the disclosure of identity information when complying with s133: Option 1 Delete or mark out the identity and location on the PROP Desktop receipt copy and the location of the search on the search warrant copy or the warrantless search power notice copy before providing to the owner. Seek advice from Legal Services if the owner disputes the deletions from the documents. Option 2 Apply to a Judge for postponement of notice and inventory requirements under s134. This option has limitations in that the application must be made within 7 days after the warrant is finally executed or the warrantless search power is exercised

Answer 31

This chapter outlines powers under the Search and Surveillance Act 2012 to stop and move vehicles and to establish road blocks for the purpose of search and/or to effect arrest. Powers to stop and move vehicles or to close roads under the Land Transport Act 1998 or under other legislation for emergency purposes (eg in a civil defence emergency) must not be used for the purpose of search. Definition Curtilage means 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.

Answer 32

You may stop a vehicle to conduct a search: under a power to search… without a warrant, if you are satisfied that.... grounds exist to search the vehicle with a warrant if you are satisfied that the warrant has been issued and is in force. (s121) Moving vehicle for purpose of search or safekeeping You may move a vehicle to another place: if… you find or stop the vehicle and you have… * lawful authority to search the vehicle, but it is impracticable to do so at that place, or * reasonable grounds to believe it is necessary to move the vehicle for safekeeping. (122)

Answer 33

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. (s128)

Answer 34

Immediately after stopping the vehicle, you must: * identify yourself to the driver * state the name of the enactment under which the search is taking place and the reason for the search, unless it is impracticable in the circumstances * if not in Police uniform, produce evidence of your identity. (s129)

Answer 35

You may stop a vehicle without warrant to arrest a person if you have reasonable grounds: * to suspect that a person: − is unlawfully at large, or − has committed an offence punishable by imprisonment, and * to believe the person is in or on the vehicle. (s9) Note: “Unlawfully at large” includes: * a person for whose arrest a warrant is in force, except when it is a fines warrant issued under Part 3 of the Summary Proceedings Act 1957 * anyone who has escaped from lawful custody * a special or restricted mental health patient who is absent without leave.

Answer 36

If you stop a vehicle under section 9 you may: * require any person in or on the vehicle who you have reasonable grounds to suspect is unlawfully at large or has committed an offence punishable by imprisonment to supply their name, address, other contact details and date of birth * search the vehicle to locate the person, if you have reasonable grounds to believe they are in or on the vehicle * search the vehicle to locate property that is evidential material in relation to any offence in respect of which the vehicle was stopped, if the person: − has been arrested, or − is seen fleeing from the vehicle before they can be arrested. Before searching, you must tell the driver the object of the proposed search if they are not the person suspected of being unlawfully at large or of committing an offence.

Answer 37

Follow the procedures for stopping vehicles in the Traffic patrol techniques Police Manual chapter. Note in particular that Police policy requires that when stopping a vehicle you must: * be wearing a Police uniform or distinctive cap, hat or helmet with a badge of authority affixed to that cap, hat or helmet, or * be following immediately behind the vehicle, and displaying flashing blue lights or flashing blue and red lights, and/or sounding a siren.

Answer 38

If you are a senior constable (holding or acting in a position level of sergeant or above) you may authorise the establishment of a road block (orally or in writing) if you have reasonable grounds to: * believe that in or on a vehicle there is a person who you have reasonable grounds to suspect: − has committed an offence punishable by a term of imprisonment or − is unlawfully at large, and * suspect the vehicle will travel past the place where it is proposed the road block be established. You must be satisfied that, as far as is reasonably practicable, the safety of all road users will be ensured in the area where the road block will be established. (s30) Note: In this section, senior constable means a constable who holds a level of position of sergeant or higher,and includes any constable who is acting in any such rank (subsection 4 of s30).

Answer 39

An authorisation to establish a road block: * is valid for an initial period not exceeding 24 hours specified by the person giving the authorisation, and * 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. If you authorise a road block, you must keep a written record of: * the location * the period(s) for and grounds on which authorisation was granted or renewed. (s31)

Answer 40

Any constable may do any or all of these things when a road block is authorised. Establish road block - Establish a road block at the place specified in the authorisation. Stop vehicles - Stop vehicles at or in the vicinity of the road block. Require particulars - Require any person in or on any vehicle stopped by the road block who you have reasonable grounds to suspect has committed an offence punishable by imprisonment to state their name, address, and date of birth. Search vehicle - Search the vehicle for the purpose of locating a person who has committed an offence (punishable by imprisonment) or is unlawfully at large (excluding non-payment of fines warrant), if you or any other constable has reasonable grounds to believe the person is in or on the vehicle. (s32) You may also require that a vehicle remain stopped for as long as is reasonably necessary to enable you to exercise any of the powers above in respect of the vehicle or its occupants. (s128)

Answer 41

You may arrest the person if they fail to stop when required or to comply with a requirement under section 128 to remain stopped. (s177)

Answer 42

Searching people may be necessary to: * locate and preserve evidence * remove weapons or means of escape * remove and care for a detainee’s property * locate and remove articles or substances that could impact on the safety of that prisoner or that of other prisoners, members of the public or Police employees * ensure the safety of a prisoner considered to be at risk of attempting suicide or self-harm.

Answer 43

There are three main types of personal searches which have increasing levels of justification and requirements: * rub-down searches * strip searches * internal searches.

Answer 44

These general principles apply to all searches: * The search must be lawful, ie you must be authorised by the Search and Surveillance Act 2012 or another enactment to conduct a search, or conduct it with the person's informed consent. * People being searched must be treated with such dignity, privacy, respect and sensitivity that the individual situation and the safety of employees dealing with them will permit. * Any force or restraint used on a person being searched must always be reasonable in the circumstances. * Generally searches should be carried out by constables, authorised officers or searchers of the same sex as the person being searched. Some exceptions apply when employees of the same sex as the person being searched are not available * Where practicable, any search and/or removal of property from the person being searched must be witnessed by another Police employee. * All property removed or seized from a person searched must be appropriately documented and accounted for.

Answer 45

Police can search people when they are authorised by legislation to do so. You must search a person lawfully by always: * exercising a warrantless power, or * executing a warrant power, or * conducting a search with the person's consent. Note: When a statutory power exists to search a person, you should use that power rather than relying on a consensual search, as consent may be withdrawn by the person at any time. When making a decision to search, you must consider your tactical options and work within the principles of TENR (Threat, Exposure, Necessity, Response).

Answer 46

The statutory powers to search people are contained in the Search and Surveillance Act 2012 and are outlined in this chapter. They include warrantless powers to search a person: * in custody and who is or is about to be locked up (s11) * found in a public place for evidential material (s16) * for arms (s18) * in relation to drug offences (ss21, 22, 23) * for offensive weapons (s27) * after arrest or detention (ss85, 88).

Answer 47

Searching people can include searching anything: * they are wearing or carrying, or * that is in their physical possession or immediate control - this could include a place or vehicle.

Answer 48

There are two alternative search powers that might be appropriately exercised immediately upon arrest or when detained under a statutory power of detention. These are: * a rubdown search, under ss85-87, and * a warrantless search under s88. A search may be carried out under one of these provisions before the search conducted under s11 when people are locked up. Any search undertaken pursuant to s11(1) & (2), should only be completed by custodial or watchhouse employees before the person is placed into a cell, unless the circumstances are such that an urgent search under s11 is required. The primary purpose of the s11 search is not to look for or seize evidential material but to protect the detained person’s property and remove items that might be used to harm themselves or others.

Answer 49

You may search a person who has been taken into lawful custody and is: * at a Police station, or * 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 (pending a decision on bail or for any other reason). 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))

Answer 50

“Locked up” means a person taken into lawful custody and being placed behind a closed or locked door that prevents them from leaving. Examples are a cell or charge room at a Police station or a vehicle used for Police purposes (other than being placed in a Police vehicle only for the immediate purposes of transport).

Answer 51

After a person has been locked up they can only be searched if: * they were not searched before being locked up, or * since being searched before being locked up, they have been in, or are reasonably suspected of having been in, close proximity to: − a person who was not locked up in Police custody (other than an enforcement officer or a searcher), or − another person who was eligible to be searched after being locked up but was not, or * there are reasonable grounds to believe the person is in possession of anything that may be used to harm themselves or others. (s11(3))

Answer 52

Apart from an immediate rub-down search of an arrested or detained person under s85 (see below), or a warrantless search under section 88, avoid searching people under s11 immediately after their arrest. If you do so, a further search under s11 cannot be conducted after the person arrives at the police station unless one of the situations in s11(3) exists (see above). If it is necessary to search a person in transit to remove valuable items to prevent the property from being stolen or to prevent an assault, then you should remove all property from the person.

Answer 53

If a prisoner undergoes a s11 custodial search and is locked up, a further section 11 search can only be conducted if the exceptions in s11(3) apply. If a prisoner has undergone a s11 custodial search at one station and is later transported to another station (having previously been “locked up”), a further s11 search can only be conducted if the exceptions in s11(3) apply. If you are certain that another search is required, you should undertake that search under sections 85 or 88 (eg to ensure the prisoner is not carrying anything that may be used harm any person, or facilitate their escape). The rationale for using the s85 or s88 search power is the power of detention that is being exercised at the destination station. If not practicable to conduct the search under s85 or s88 you may consider a second search under s11 on the grounds that while the prisoner in transit they are no longer considered to be “locked up” until they reach the next place of detention where they are to be again “locked up”. However, be aware that this rationale has not been tested in court and there is therefore a risk of the search being found to be unlawful. Any search must be reasonable in the circumstances

Answer 54

You may carry out a rub-down search of a person who is arrested or detained under any enactment, to ensure the person is not carrying anything that may be used to: * harm any person (including themselves), or * facilitate the person's escape. (s85) This power may be used on every person who is arrested or detained

Answer 55

If you have arrested, or detained a person under a statutory power of detention you may search the person if you have reasonable grounds to believe that there is anything on or carried by the person that: * may be used to harm any person (including themselves), or * may be used to facilitate the person's escape, or * is evidential material relating to the offence for which the arrest was made or the person detained. (s88) Note: The grounds authorising a search under this section will not apply to every person who is arrested or detained. Rub-down or strip searches may be used under s88 depending on the circumstances.

Answer 56

The definition of evidential material is broad and under section 3, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence. Only where there are reasonable grounds to believe that evidential material is on a person’s body does s88(2)(c) authorise a search and seizure of evidence from the external body of an arrested or detained person. The reasonableness of a search depends on its circumstances, assessed against an individual’s reasonable expectation of privacy from State intrusion in a law enforcement context as protected by s21 New Zealand Bill of Rights Act 1990 (unreasonable search and seizure). The scope of the power to seize samples is therefore uncertain. The more intrusive the search, the higher standard of justification that police will be required to meet. For example, a penile swab may link the arrested person to the victim by DNA. However, where the person does not consent, the use of force could render the search and seizure unreasonable, not because of the unreasonable manner in which it was carried out but because it occurred at all. This has yet to be tested in court. The power to seize a sample as evidential material from the external body of the person under s88 is independent of the powers to take samples under the Criminal Investigations (Bodily Samples) Act 1995. Nevertheless, evidence should not be seized under s88 for the purpose of obtaining a suspect’s DNA profile.

Answer 57

Examples where samples may be seized from the external body of an arrested or detained person as evidential material include: * a swab to remove blood from the victim of an assault on the arrested person’s neck * fingernail scrapings from the fingers of an arrested rape offender that may link the offender to the victim by DNA * a swab of an arrested person’s skin for gunshot residue * penile swabs (see the online Police Manual chapter for more detail).

Answer 58

Searches under s88 for the purpose of seizing samples as evidential material from the external body of an arrested or detained person must be lawful, reasonable and approved by a constable who is of or above the level position of sergeant. Note: The Court of Appeal, in R v Williams [2007] 3 NZLR 207, (2007) 23 CRNZ 1 (CA), confirmed that the concepts of lawfulness and unreasonableness were distinct. Searches that are lawful may nevertheless be unreasonable taking into account the manner, time and place of the search.

Answer 59

Unless impracticable in the circumstances, obtain approval from a sergeant or above before exercising any of the warrantless powers outlined above in relation to arms.

Answer 60

You may search a person without a warrant if you have reasonable grounds to suspect the person is committing an offence against s202A(4)(a) Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances). (s27)

Answer 61

When exercising a power to search a person you must: * identify yourself * state the name of the Act under which the search is taking place and the reasons for it unless it is impracticable to do so in the circumstances * produce evidence of your identity if you are not in Police uniform * promptly provide the person with a copy of an inventory of any items seized during the search. (s125(1)&(4))

Answer 62

When exercising a power to search a person, you may: Detain - the person for as long as necessary to enable the search to be carried out Use reasonable force - for the purposes of the search (You should first arrest for obstruction and then use force to complete the search) Use any equipment or aids, eg torch - to facilitate the search (while conducting it), if it is used in a way that: * involves no or minimal contact, and * is reasonable in the circumstances Ask for assistance from * a medical practitioner or nurse, and /or * a parent, guardian, or other person responsible for the day-to-day care of the person to be searched If you think it is in the interests of the person to be searched Ask for assistance from - Another officer (from any law enforcement agency) who is also authorised to conduct a strip search and is of the same sex as the person being searched, if you are undertaking a strip search Search - any item: * the person is wearing or carrying, or * is in their physical possession or immediate control Seize anything carried by the person or in their immediate possession or control if: * it is the subject of your search, or * may otherwise lawfully be seized Copy - all or part of a document carried by the person being searched or in their physical possession or immediate control if that document is the subject of your search or may otherwise be lawfully seized

Answer 63

When exercising a power to search a person, you may: Access using reasonable measures - a computer system or other data storage device carried by the person being searched or that is in their physical possession or immediate control, if any intangible material that is the subject of your search may be in that computer system or other device Copy intangible material - accessed as above that is the subject of your search or may otherwise be lawfully seized, (including by means of previewing, cloning, or other forensic methods before or after removal for examination Take photographs - or make sound or video recordings, or drawings of any thing being carried or in the physical possession or immediate control of the person being searched if you have reasonable grounds to believe that the photographs or sound or video recordings or drawings may be relevant to the purposes of the search (s125(1))

Answer 64

Searches must be reasonable under s21 New Zealand Bill of Rights Act 1990. If the search complies with s125 Search and Surveillance Act 2012, it is likely to be reasonable under s21 New Zealand Bill of Rights Act. However, there is still an overriding requirement of reasonableness such that if the search is carried out in a manner unreasonable in the circumstances, it may breach s21 even if authorised by the provisions of the Search and Surveillance Act 2012.

Answer 65

A rub-down search is a search of a clothed person in which you may: * run or pat your hand over the body of the person being searched, whether outside or inside their clothing (other than the underclothing) * insert your hand inside any pocket or pouch in their clothing (other than the underclothing) * 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. (s85(2))

Answer 66

A rubdown search may include a visual examination (whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, and ears, but must not include the insertion of any instrument, device, or thing into any of those orifices. (s87)

Answer 67

To facilitate a rub-down search you may require the person being searched to: * remove, raise, lower, or open any outer clothing (including, without limitation, any coat, jacket, jumper, or cardigan) being worn by them, except when they have no other clothing, or only underclothing, under that outer clothing, and * remove any head covering, gloves, or footwear (including socks or stockings) being worn. You may also search: * any item carried by or in their possession, and * any outer clothing removed, raised, lowered, or opened for the purposes of the search, and * any head covering, gloves, or footwear (including socks or stockings) removed for the purposes of the search. (s86)

Answer 68

You may carry out a rub-down search when a person is arrested or detained under a statutory power of detention, to ensure that they are not carrying anything that may be used to: * harm any person, or * facilitate the person’s escape. (s85(1))

Answer 69

If you search a person under any provision in the Search and Surveillance Act 2012 or any other enactment, and remove or seize any property from them, you must promptly prepare an inventory of what was removed or seized and provide the person with a copy. (s125(4)) When people are in custody, follow the procedures for receiving and recording detainees’ property in the People in Police Custody chapter. Note: If you take property and retain it as an exhibit for further investigation, you must record in in PROP or IMT.

Answer 70

McRae v Police (2017) NZHC 2255 – Inquiring as to a reasonable excuse for possessing an offensive weapon before conducting a search Finding A car’s lack of roadworthiness had given police a legitimate interest to investigate and a machete was sighted in the vehicle in relatively plain view. 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. Although in this case that question was not asked, the Court was satisfied that there would be few circumstances where it is acceptable to possess a machete and found the search of the car to be lawful and the evidence admissible.