Search and Surveillance Flashcards
Evidential Material
Evidence of the offence, tangible or intangible of relevance to the investigation.
Curtilage
Land immediately surrounding a house or dwelling. Home owners have reasonable expectations of privacy.
Warrant preference:
Time to apply and obtain?
Can the scene be secured?
Do I have sufficient staff?
Evidential material at risk?
Section 10
After Section 9 stop -
Require - Target to provide details.
Search - Aearch vehicle for person.
Search - The vehicle for evidential material relating to the offence the vehicle was stopped for if person flees or arrested.
CADD
Concealed, Altered, Damaged, Destroyed. (Must explain RGTB).
Section 8
Entry without a warrant to avoid loss of offender or evidential material.
Section 7
Entry without warrant to arrest a person unlawfully at large.
Section 9
Stopping a vehicle to find a person unlawfully at large who has committed certain offences.
Section 16
Searching people in public place without warrant for evidential material relating to certain offences (14 years+)
Section 15
Entry without warrant to find and avoid loss of evidential material relating to certain offences (14 years+)
Section 17
Warrantless entry and search of vehicle for evidential material relating to certain offences (14 years+)
Section 18
Warrantless search relating to arms.
Section 20
Warrantless search of places and vehicles in relation to drugs.
Section 21
Warrantless search of people found in vehicles or places for drugs.
Section 22
Warrantless search of people for drugs if offence against MODA 1975.
Section 27
Warrantless search of people in public places for offensive weapons.
Section 83
Entry of place after arrest (CADD).
Section 84
Entry of vehicle after arrest.
Section 112
Items of uncertain status may be seized.
Section 117
Freezing a scene for a search warrant.
Section 121
Stopping a vehicle for the purpose of a search
Section 122
Moving a vehicle for the purpose of search or safekeeping.
Section 123
Seizure of item in plain view.
Section 45: Restriction on trespass surveillance
Restriction on some trespass surveillance and use of interception devices.
Must be 7 year offence or Arms Act.
Police, Customs, internal affairs.
Section 48: Surveillance emergency powers
Surveillance device warrants need not be obtained for use of surveillance devices in some cases.
Section 46: Surveillance activities requiring a warrant:
Intercepting private communication.
Tracking (unless determining if thing being handled)
Visual observation of private activity on private premises.
Visual observation of private activity in the curtilage of private premises for longer than time specified.
Visual surveillance that involves a trespass.
Surveillance activities not requiring a warrant:
Visual surveillance, interception or tracking without a device.
Visual surveillance with a device on non private property.
Visual surveillance with a device in curtilage times.
Tracking device for purpose of determining if being handled or opened.
Interception device for non-private communication.
Section 28
Stopping and searching vehicle for offensive weapon.
Section 47: Activities that don’t require a warrant
Recording communication/what is seen when lawfully on private property.
Covert audio recording when there is consent from one of the parties.
RGTS
Sound basis for suspecting that a situation or circumstance exists
RGTB
Sound basis for believing that a situation or circumstance exists.
Reasonable grounds
Clearly describe your reasons for holding a belief or suspicion
Lawful search
Search that is conducted with a search warrant, warrantless search power or a consent search.
Reasonable search
Complies with Section 21 of Bill of Rights Act and considers the nature of the search, how intrusive the search is and where/when the search takes place.
Practicable in the circumstance (search warrant)
Before considering a search you must consider whether applying for a search warrant is practicable in the circumstances.
Why use a search warrant?
Ensures judges oversight.
Provides greater protection for police and the public.
Requires recording and reporting of results.
Time constraints of emergency SDW
No more than 48 hours
Time constraints of emergency SDW
No more than 48 hours
Emergency surveillance reporting
Must provide a notification to a judge within 1 month after the date of the last day of any 48 hour period.
SDW time period
No more than 60 days after the date on which the warrant was issued.
Surveillance device
A device which assists and enhances your normal capability to carry out the surveillance. These include:
Visual surveillance device.
Interception device.
Tracking device.
Visual surveillance device
Any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity.
Circumstances required for emergency SW
Situations of emergency in reaction to surveillance (Section 48) -
Entitled to apply.
Impractical in the circumstances.
Circumstances required -
14 years or more and
You believed you would obtain evidential material.
An arms offence.
A drug offence
Or injury/serious loss of property and need to prevent.
Or Preventing risk to life and safety and surveillance is necessary as an emergency response.
Consent search - what must you advise ?
Of the reason for the proposed search; and
They must consent or refuse the search.
Consent cant be withdrawn at any time and a person under 14 years of age is unable to consent to a search.
You do not have to report a consent search
What must there be for a consent search?
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.
Tangible
Something that may be touched.
Intangible
Unable to be touched or have physical presence (email or information on internet).
CADD
Concealed, Altered, Damaged, Destroyed. (Must explained RGTB)
Section 131
Identification, intentions, reason and notice (Bill of rights)
You do not need to comply with the obligations if you have RGTB no one is present.
You also don’t have to comply if endangers persons safety, prejudice the successful use of entry, prejudice and ongoing investigation.
Reasonable force may be used if entry or power is refused.
Leave search warrant and list of items seized.
Powers to Search place, vehicle or other thing (Section 110)
Enter and search
Search anything found in that place.
Use reasonably for the purpose of searching.
Seize anything that is subject to search or lawfully can be seized.
Request assistance with entry or search.
Bring and use any equipment.
Bring any dog and its handler.
Copy any document that can be lawfully seized.
Access computer systems or storage devices.
Copy intangible material.
Take photographs, sound, video and drawings.
Extra powers:
116
118
119
120
116: You can secure a place, vehicle or thing and exclude any person.
118: You can detain people when searching a place, vehicle or thing for determining if there is any connection between person and place.
119: You can search people found when searching places and vehicles if you have RGTB that evidential material is on that person or RGTS that person has a dangerous item and poses threat of safety.
120: If you are in fresh pursuit and RGTB that evidential material is still on the person you can enter any place to apprehend and search
Privileged material in searches
Allows the holder of particular information to refused to disclose this information. Some examples included information gained through:
Legal advisors.
Ministers of religion.
Medical practitioners.
Clinical psychologists.
Informers (informants).
Journalists
Procedures when dealing with privileged information:
You must ensure that the person or their representative is present when the search is undertaken.
You must give the person a reasonable opportunity to claim privilege.
They must provide a list of things which they claim is privileged information.
You must complete an inventory listing of all documents seized.
The person may make a copy of the document before you seize it and they may object to the seizure.
If you have RGTB that anything discovered during the search will be privileged information you must provide them the opportunity to claim.
If privilege is claimed you should seize investigation of the item and the court makes direction of the claim.
Search warrant requirements
RGTS an offence punishable by imprisonment has been, will be, is being, or is about to be committed.
RGBT the search will find evidential material in respect to that offence.
Section 117
If Search Warrant has been made or you are waiting to hear if its been authorised, and you have RGTB that evidential material may be CADD or removed you can:
Enter and secure a place, vehicle or thing.
Secure any item found there.
Direct aunty person to assist with entry and secure place, vehicle, thing.
Time limit for section 117
6 hours
Section 117 may be exercised untill
6 hours since use of power.
The warrant is available for execution.
The application for a search warrant is refused.
What must issues officers be satisfied with when approving search warrants
Issuing officers must be personally satisfied that RGTS office punishable by imprisonment has been committed and RTGB search will find evidential material.
Who may execute a Search Warrant?
The person to whom is directed or any constable.
How long is a Search Warrant valid?
No more than 14 days, or no more than 30 days as specified by the issuing officer.
When can a Search Warrant be executed?
At any reasonable time under the circumstance or restricted time specified in the SW.
When is a Search Warrant considered executed?
When you have seized evidential material specified in the SW or leave the place for over 4 hours.
How often can a Search Warrant be executed?
One time unless specified in the SW.
Extra - Section 19
You may search any person found in the place or vehicle if the offence is against the Misuse of Drugs Act 1975.
Extra - Section 127
Enter any place to locate the vehicle to execute the Search Warrant if RGTB that the vehicle is there.
Why PO over SW?
Les intrusive and last longer
PO time period?
No more than 30 days
District approvier must be satisfied with production orders ?
The grounds for applying are met.
The resource benefit of making an application is advantageous to Police and the investigation.
The information sought does not make unreasonable or unnecessary demands on the telecommunication provider.
If applying for a news media organisation, a Police executive must be consulted (PNHQ or District Commander).
Ground for applying for Production Order -
RGTS an offence has, will or is going to be committed.
RGTB that documents sought will have evidential material in respect of offence and in possession or control of person whose order is sought against.
Post Search Process
Damage to property and when to pay.
Securing premises.
