Search and Surveillance Flashcards
RGTB
- Higer standard than suspect
- Exists where privacy interest exist
- The state of affairs actually exists
- Matter of fact
- Cumulative effort of factors
RGTS
- Lower standard of suspect
- The proposition is regarded as inherently likely
- E.G suspect an offence has been committed.
Reasonabe grounds
Must be able to clearly describe reasonable grounds for belief or suspicion.
- Notebooks entries
What is evidential material?
in relation to an offence or suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.
CADD
is there a possibility that evidential matetial will be CADD
You must be able to explain RGTB CADD may occur.
What is a surveillence device?
a device that is any 1 or more of the following kinds of devices:
- An interception device
- A tracking device
- A visual surveillance device
Interception Device
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.
Does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.
Tracking Device
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
does not include a vehicle or other means of transport, such as a boat or helicopter
Visual Surveillance Device
Means any electronic, mechanical, electromagnetic, optical, or electro-optical, apparatus, equipement or other device that is used or capable of being used to observe or to observe and record, a private activity.
does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
timings for surveillance device warrant
3 hours in an any 24 hour period or 8 hours in total
Does a covert audio recording require a SDW?
Making a covert audio recording of a conversation does not require a SDW
Private Activity
Private activity means activity that, in circumstances, any 1 or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants.
Section 7
Entry without warrant to arrest person unlawfully at large.
- Enter place or vehicle
- RGTS unlawfully at large
- RGTB person is there
Examples of unlawfully at large
- WTA
- Prison escapee
- Escapee lawful custody
- Special or restricted patient that has escaped or failed to return
- Young Person who has absconded from custody
Section 8
Entry without warrant to avoid loss of offender or evidential material
- Enter a place or vehicle
- Search and arrest person that constable suspects has committed the offence
- RGTS person has commited imprisonable offence.
- RGTB person is in there
- RTGB if entry isn’t immediate, the person will leave to avoid arrest, EM will be CADD
Section 9
Stopping vehicle to find person unlawfully at large or commited imprisonable offence.
- Stop vehicle
- RGTS person unlawfully at large or has commited imprisonable offence.
- RGTB that person is in or on vehicle.
Section 10
Powers and duties of Constable after vehcile stopped.
If stopped under section 9:
- Require any person in the vehicle who you have RGTS unlawfully at large or commited imprisonable offence to supply details.
- Search the vehicle if RGTB person is in vehicle.
- Search the vehicle for EM in relation to any offence in respect of which the vehicle was stopped if the person has been arrested or seen fleeing from vehicle before he has been arrested.
Must tell the driver the object of the proposed search
Section 15
Entry without warrant to find and and avoid loss of EM relating to certain offences.
- Enter and search place
- RGTS offence with 14 year + penalty has been or is being or is about to be committed
- RGTB EM is in that place and if entry is delayed EM will be CADD.
Section 16
Searching people in public place without warrant for EM relating to certain offences
- search person in PUBLIC PLACE
- RGTB person is in possession of EM relating to offence with penalty 14+ years
Section 17
Warrantless entry and search of vehicle for EM relating to certain offences.
- Enter and search vehicle in PUBLIC PLACE
- RGTB EM relating to 14+ year offence is in there
Section 18
Warrantless searched associated with arms
- RGTS offence against the arms act, harm by firearm, protection order, incapable of proper control
- May search person, anything under their control, enter place or vehicle
- sieze and detain arms and any FLIC
Section 20
Warrantless search of place and vehicle in relation to MODA offences
- Enter and search place or vehicle
- RGTB controlled drug in the place or vehicle
- RGTS offence agaisnt MODA has been, is being or is about to be committed.
- RGTB if entry is delayed, EM will be CADD.
Section 21
Warrantless search of people found in or on places or vehicles.
- Can search any person in the place or in or on the vehicle in section 20
Section 22
Warrantless search for controlled drugs and precursor substances if offence suspected against MODA75.
- Search a person
- RGTB person is in possession of controlled drug.
- RGTS offence against MODA has been, is being or is about to be committed.
Section 27
Searching people in public places without SW if offence agaisnt 202(4)(A) Crimes Act suspected.
- Search person in public place
- RGTS offence agaisnt 202(4)(a)
Section 28
Searching vehicle without warrant if offence against 202A suspected.
- Search the vehicle
- RGTS person in vehicle commited offence against 202A
- Vehcile contains a knife, offensive weapon or disabling substance.
Section 83
Entry without warrant after arrest.
- arrest person for offence
- RGTB EM relating to offence is in a place and will be CADD
- Can enter place without warrant to search for EM relating to offence (even if he wasnt arrested there)
Section 84
Warrantless entry and search of vehcile after arrest
- Search vehicle after arrest
- RGTB EM is in or on vehicle.
Section 112
Items of uncertain status may be seized
- Exercising search power
- Not reasonably practical to determine if it can be seized
- Seize for the purpose of examination to determine whether it may be lawfully seized.
Section 117
Special powers when application for search warrant pending
- If SW application is being made or about to be made
- Enter and secure place or vehicle and any items within
- RGTB that evidence will be CADD before decision on SW is made.
- Expires after 6 hours first exercised, or warrant able to be executed or refused.
Section 121
Stopping vehicles with or without warrant for purpose of search
- If stopping vehicle to undergo search power (SW or WS)
- Step the vehicle and give RAIN
Section 122
Moving vehicles for the purpose of a search or safekeeping.
- Can move the vehicle to another place to search if impracticable at that place.
- Or if power to arrest a person, move the vehicle to another place if RGTB it is required for safe keeping.
Section 123
Seizure of items in plain view
- If exercising search power or is lawfully in any place or vehicle.
- Seize any items that you have RGTB you could seize under any other power.
- Can exercise any applicable power under section 110 in relation to seizing.
Section 45
Restrictions on some trespass surveillance and use of interception devices.
- Cannot undertake trespass surveillance except to get EM in relation to an offence 7 years + imprisonment or against arms act.
- Cannot use interception device unless getting evidential material in relation to 7+ years offence or offence against arms act.
Section 46
Activities for which surveillence device warrant required.
1. Except as per section 47 and 48
2. Need a warrant to:
- Use interception device for private communication interception.
- Use of a tracking device.
- Observation of private activity in private premise and any recording of it by visual surveillance device.
- Use of surveillance device that involves trespass to land or goods.
- Observation and recording or said observation in curtilage or private premise, if it exceeds 3 hours in 24 hours or 8 hours total.
Section 47
Activites that do not require a warrant under this subpart
- Recording what he or she sees or heard whilst lawfully on private premise, as long as you can see or hear without use of surveillance device.
- Covert audio recording of conversation between two people with the consent of at least one (if one is enforcement officer, cannot be actively elicited)
Section 48
Surveillance device watrant need not be obtained for the use of surveillance device in some situations of emergency or urgency.
- Not exceed 48 hours.
- Entitled to apply for a warrant but impractical in the circumstances.
- RGTS:
- 14+ year offence is being has been or about to be committed
- Emegency and BELIEVE use of surveillance device is required to prevent offending being committed, continuing or avert emergency.
- Firearms offence BELIEVE surveillance device is required to facilitate seizure of arms.
- Drugs offence and BELIEVE that the use of surveillance device would obtain EM in relation to the offence.
May use force to enter any premise, area or vehicle, break things open or remove and return vehicle in order to install, maintain or remove the device as well as access and use electicity to power it.
