Search and Surveillance Flashcards
Lawful search
Under search warrant, warrantless power, or consent
Reasonable search
Complies with s21 BORA +
- Nature of search
- How intrusive search is
- Where and when the search takes place
Using a search warrant…
- Provides judicial oversight
- Provides greater protection for Police and public
- Requires recording and reporting of results
Consent search for reasons…
- 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
Before consent searching, advise…
- The reason for the proposed search AND
- They may consent or refuse to consent to the search
A person under 14… (consent searches)
Is unable to consent to the search of a place, vehicle, or other thing (UNLESS they are found driving with no passenger of or over 14 with authority to consent to the vehicle’s search)
Tangible
Something that may be touched
Intangible
Unable to be touched; not having physical presence
CADD
Concealed
Altered
Damaged
Destroyed
s131
Identification and notice requirements when searching places, vehicles, and other things (RAIN)
s125
The rules for searching people (RAN)
s110
Powers incidental to search
s169
Reporting
s116
Securing a place, vehicle or other thing to be searched and excluding any person from there
s118
Powers of detention incidental to search of places or vehicles
s119
Powers of search by a person who has a power of arrest
s121
Stopping vehicles for search (SW or warrantless)
s122
Moving vehicles for search/safekeeping
s123
Seizure of items in plain view
s112
Items of uncertain status
s19
Searching a person found in a place or vehicle being searched, if offence is against the MODA61 - RAN
When you exercise a power to search a person, you may:
- Detain the person to enable search
- Use reasonable force
- Search any item that the person is wearing, carrying or is in the person’s physical possession or immediate control
s127
Search warrant for vehicles - may enter any place to locate the vehicle if RTGB vehicle present
s74
Production orders
PO for news media organisation
Must obtain approval from a Police Executive member in the case of PNHQ or a DC for a district matter.
Private premises
A private dwellinghouse, a marae, and any other premises that are not within the definition of 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 (some areas are private, eg consulting rooms, office areas, staff room).
Private activity
A participant in an activity can reasonably expect the activity is private, if it is carried out in private premises.
Trespass surveillance
Surveillance that involves trespass onto land or trespass to goods. Occurs the moment an enforcement officer steps onto private property without consent.
Restriction on use of visual surveillance devices
Only for obtaining evidential material for serious offences (7+ years)
s46
Activities for which a SDW required
Curlitage
Means the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’. Defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.
s46(e)
Time limits for visual surveillance device within curtilage for single or connected investigations. SDW required if exceeds
(i) 2 hours in any total 24 hour period; or
(ii) 8 hours in total
Interception
In relation to private communication, includes hear, listen to, record, monitor, acquire or received the communication either:
- When it is taking place or
- While it is in transit
Interception device
(a) 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
SDW required
Limitations on use of an interception device
To obtaining evidential material for serious offences only
- 7+ years
- Identified Arms Act 1983 offences
- Identified Psychoactive Substances Act 2013 offences
Voluntary oral communication
A communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (s47) - no SDW
Tracking device
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
Doesn’t include a vehicle or other means of transport (eg boat or helicopter)
Tracking device to obtain evidential material for
Any offence punishable by imprisonment
Don’t need SDW (tracking device)…
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 does not involve trespass
s48
SDW need not be obtained for use of surveillance devices in some situations of emergency or urgency. Two key ingredients.
Two key ingredients for no SDW in emergencies…
- ‘entitled to apply’ - you would be entitled to make an application for a SDW as the situation is one of serious criminal activity
- ‘impracticable in the circumstances’ - you need to use a device urgently as it is not immediately practicable to obtain a SDW.
Surveillance without warrant is only permitted when… (emergency)
Two ingredients are met, and suspected offence has/is/about to be committed and is:
- punishable by 14+ years AND
- believe surveillance device would obtain evidential material
- an Arms Act 1983 offence
- a drug offence
- situation likely to cause injury or serious property loss/damage - surveillance is necessary to prevent offending
- situation presenting risk to life and safety and surveillance necessary as an emergency response (s14)
Requirement to report on s48 use (s60)
Must provide a notification to a judge within 1 month after the date of the last day of any period of 48 hours or less over which the surveillance device was used.
s74
Production order
