Search and surveillance Flashcards
RGTS and RGTB
having a sound basis for suspecting (RGTS) or believing (RGTB)
What must you do once formed a belief or suspicion before executing power
Record your reasonable grounds for using a search power in your notebook. This is your decision log.
Section 22
Warrantless search of a person for a controlled drug
-RGTS an offence against MODA 75
-RGTB in possession of controlled drug
3 Types of lawful searches
1 - With search warrant
2 - Under a warrantless search power
3 - With the person’s consent
What is a reasonable search
- Complies with S21 of the NZ BORA
Considers factors such as
-nature of the search
-how intrusive
-when and where search takes place
Considerations in deciding whether to apply for SW or go warrantless
- Time to apply for and gain approval for SW
- Can scene be secured (S117)
- Availability of reasonable resources (staff etc)
- Is evidential material at risk
- Location of search and who may be present
Why use a search warrant
-Ensures judicial oversight
-Provides greater protection for Police and public
-Requires recording and reporting of results
What do sections 91-96 under S&S 2012 cover
Consent searches
What must be satisfied before conducting a consent search (S92)
Search must be for one of the following reasons
-to prevent commission of an offence
-to investigate whether an offence has been committed
-to protect life or property
-to prevent injury or harm
One or more must be satisfied (S92)
What to advise person from whom consent is sought from (consent search)
-The reason for the proposed search
-They may consent or refuse.
Can a person under 14 years consent to a search
A person under 14 years old is unable to consent to the search of place, vehicle or other thing—- unless they are found driving with no passenger of or over 14 years of age with authority to consent to the vehicle’s search.
Obligations under S131 when searching place, vehicle or other thing
RAIN before intial entry
-identify by name or QID
-provide evidence of identity if not in uniform
-announce intention to enter and search
-state name of the Act
-give notice by providing a copy of the SW
-BOR when detaining
When you would not have to comply with obligation (S131)
RGTB this would
-Endanger any person’s safety
-Prejudice the successful use of the entry and search power
-Prejudice on-going investigations
S110 authorises you to
-enter and search place, vehicle or other thing
-search any item or items found in that place (if reasonable)
-Use reasonable force in respect of any property for the purpose of carrying out the search or lawful seizure
-Seize anything that is the subject of the search or anything else that may be lawfully seized
-request assistance with entry and search
-bring and use any equipment found on the place
-bring and use a trained law enforcement dog and handler
-copy documents that may be lawfully seized
-access a computer system or other data storage
-copy intangible material
-take photographs
S116
If search impeded by any person or RGTB any person would obstruct or hinder search
-exclude that person from the place, vehicle or other thing being searched, or any are in or on the place or vehicle.
-give any reasonable direction to that person
S118
Can DETAIN PEOPLE when searching places and vehicles for the purposes of determining whether there is any connection between a person and the object of the search
-exclude
-detain
-search if RGTB EM on them
-search if RGTS dangerous item on them
S119
SEARCH PEOPLE when found when searching places and vehicles if RGTB that evidential material is on that person
S120
if in fresh pursuit and with RGTB evidential material still on person, power to ENTER and APPREHEND the person and SEARCH the place or vehicle
AWOCA
A- Ask
W- Why
O- Options
C- Confirm
A- Action
S125(1)(i)
Search any item that the person is wearing, carrying, has in their physical possession or immediate control.
S125(1)(j)
seize any item that the person is wearing, carrying or is in their immediate possession.
What is privilege
Allows the holders of particular information to refuse to disclose that information. This information is recognised as ‘privileged’. Does not apply if information is made, received, compiled or prepared for dishonest purpose.
Recognised privileged material includes material gained through communication with
-Legal advisers
-minister of religion
-medical practitioners
-clinical psychologists
-informers(informants)
-journalists
Procedure when search involves privileged material held by a specific person
-ensure that the person or their representative is present when the search is undertaken
-give the person a reasonable opportunity to claim priviliege
Key steps in search warrant process
-gain prior approval
-gain online approval
-gain issuing officer authorisation
-plan and brief search warrant execution
-execute search warrant
-report outcomes
-file investigation records
Search warrant applications requiring supervisor approval
-oral application
-without approaching issuing officer (by phone or e-mail)
-secure a scene while you applying for a search warrant (6 hours max)
Checks before making an application SW
-RGTS that an offence punishable by has been, will or will be committed
-RGTB search will find evidential material
-have checked the target/s history in NIA for other search warrant applications
-have assessed the risks associated with executing the search warrant
-Have obtained initial approval from a supervisor at or above rank of sergeant to proceed with the on-line application.
S117
If search warrant application is about to be made or has been made and RGTB that evidential material may be CADD
-enter and secure place, vehicle or other thing
-secure any item found there
-direct any person to assist with entry and security of place or vehicle or securing items in it
Expires after
-6 hours
-warrant is available for execution at place
-application for warrant has been refused.
Who can authorise search warrants
ISSUING OFFICERS
-District Court Judge
-High Court Judge
AUTHORISED OFFICERS
-JP
-Community magistrate
-Registrar
-Deputy Registrar
What must be satisfied before search warrant can be authorised
-RGTS that an offence punishable by imprisonment has been, will or will be
-RGTB search will find evidential material
Issuing officers may put restrictions on search warrants - examples
-restricting time when search can be reasonably executed
-requiring the occupier or person in charge of place to provide reasonable assistance to the officer executing the search warrant
-requiring a report on the search warrant within a specified time
When the issuing officer does not sign the search warrant you should -
-record the issuing officers reason for refusing
-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
If issues pointed out by issuing officer in applying for search warrant cannot be addressed
-make further enquiries to support application
-consider whether to continue with investigation without conducting a search
-if reason for not signing seems unjustified, submit a report to Legal Services for direction
When is a search warrant considered executed?
when you or any assisting you
-have seized the evidential material specified in the search warrant or
-leave the place, vehicle or thing to be searched and do not return within 4 hours.
when can you apply to postpone obligations under 131
Can apply to a judge to postpone obligation to provide a copy of the search warrant if
-endanger the safety of any person
-prejudice on-going investigations
Made under S134 and should be presented at the time of application or within 7 days of executing
Search warrant briefing GSMEAC- GROUND
-location to be searched
-address
-neighbours
Search warrant briefing GSMEAC- SITUATION
-reason for seeking SW
-background on any suspect(s)
Search warrant briefing GSMEAC- MISSION
-address
-suspect(s)
-specific evidential material sought
Search warrant briefing GSMEAC - EXECUTION
-timings
-method of entry
-roles/responsibilities
-obligations on entry
-managing suspects
-searching and recording of evidential material
Search warrant briefing GSMEAC - ADMIN
-route to and from place
-timing of execution
-recording of evidential material seized
Search warrant briefing GSMEAC - COMMAND
-Cell phone numbers and radio channels
-before executing the search warrant
-during execution of the search warrant
-debrief
Person in charge of search warrant briefing should
-ensure all required staff present
-reinforce verbal information given with visual prompts
-use maps, charts, diagrams, photographs
-provide copies of all-important documents
-ensure all staff present are clear about roles and responsibilities
-identify and advise staff what they can record in notebooks
Section and powers for rules and obligations
S131 - identification and notice requirements when searching places
S125 - rules for searching people
S110 - Powers incidental to search
S169 - Reporting
Additional powers list for S&S
116 - secure place and excluding any person from there
118 - powers of detention incidental to search of places or vehicles
119 - powers of search by person who has a power of arrest
121 - stopping vehicles for search
122 - moving vehicles for search/safekeeping
123 - seizure of items in plain view
112 - items of uncertain status may be seized
Section 19
When executing a search warrant for drugs, you may search any person found in the place or vehicle you are searching
Section 125
RAN (Searching person)
Section 121
Power to stop a vehicle if you intend to search it. May use to stop if authority to search vehicle by warrantless search power or search warrant.
Section 127
Allows entry to any place
-to locate the vehicle to execute the search warrant
-if RGTB vehicle is there.
Section 112
If carrying out a lawful search and it is not reasonably practicable to determine whether any item can be lawfully seized you may - remove items for examination or analysis off-site to determine if you can seize them lawfully.
Section 123
If acting lawfully, seizure of items in plain view if RGTB that you could have seized the items under a search warrant or other search power.
Who can apply for a production order
Any enforcement officer may apply to an issuing officer (Section 71(1)).
Matters to consider before granting approval (production order)
-The grounds for applying for production order 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 telecommunications provider, whom the order is against, particularly if those documents sought are forward looking.
Applying for production order relating to a news media organisation, you must
-obtain approval from a Police executive member in the case of PNHQ or a district commander for a district matter
Grounds for applying for Production order
-Suspect an offence has been, is being or will be committed (must be an offence for which a SW could be applied for)
-Believe that the documents sought by the order constitute evidential material AND are in possession or under control of the person whom the order is sought
Using hearsay evidence
Can be used to outline the grounds on which the application is made.
Indicate reliability by stating -
-Sufficient information to prove the reliability of what has been stated
-the informant’s reliability and whether they have given reliable information in past
-whether the information has been confirmed by other means.
Damage cause to rental properties during SW
Where a search warrant or other statutory power is justified by the outcome of its execution, the compensation for justifiable damage will generally not be available. Owner’s building insurance may cover.
Unreasonable searches or unjustified damage
Compensation may be available in respect of any claim
Mistakes during search warrants resulting in damage
(eg wrong address) compensation is likely available in respect of any claim.
Causing damage from entry under s14
(warrantless entry to prevent offence or respond to risk to life or safety) unlikely to be compensated.
Procedure when claim arises from damage during SW
Directed by O/C to District Commander or National Manager for consideration along with report
-The circumstances in which SW or power was executed
-the ground of execution
-the damage caused and associated circumstances
-the outcome of the SW or power being executed
-details regarding owner of property or user of property
-Nature and basis of claim
-any steps taken by Police or owner to prevent further loss or damage
Steps to securing premises
-liaising with owner or occupier to secure their property.
-at the occupier’s or owner’s request, engaging a contractor.
-attending staff effecting a temporary repair where feasible.
Types of surveillance device
-Visual
-Tracking
-Interception
Define visual surveillance device
any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device that is used to observe or to observe and record private activity.
Does not include devices use to correct subnormal vision of user.
Section 46 (c)
Activities for which surveillance device warrant is required
-observation of private activity in private premises and any recording of that observation by means of visual surveillance.
What is a private premise
Any premise not within the definition of non-private premises.
What is non-private permise
premises or part of a premises to which members of the public are frequently permitted to have access to
What is private communications
communication made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication
What is a serious offence
Offence punishable by 7 years of imprisonment.
What is curtilage
means the land immediately surrounding a house or dwelling, including any closely associated buildings and structures but excluding any associated open fields beyond
Use of visual surveillance device for activity within curtilage of private property
SDW required if duration of surveillance for the purpose of a single investigation or a connected series of investigations exceeds
-3 hours in any 24 hour period
-8 hours in total
What is an interception device
any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device that is used to observe or to observe and record private communication.
When can a SDW involving interception device be authorised
-Serious offences
-identified Arms Act 1983 offences
-identified Psychoactive Substances Act 2013 offences
Participant/voluntary oral communication
Communication between one or more persons where at least one party in the communication gives their consent for communication to be recorded (s47)
No requirement to obtain SDW to intercept voluntary oral comms
What is a tracking device
Device that may be used to help ascertain, by electronic or other means, either or both the location of a thing or person OR whether a thing has been opened, tampered with or in some other way dealt with.
Section 48
use surveillance devices without warrant in cases of emergency or urgency
-punishable by 14 years imprisonment or more
-believe use of device would obtain evidential material
-an Arms Act 1983 offence
-a drug offence
-likely to cause injury or serious property loss/damage and surveillance necessary to prevent offending
-presenting risk to life and safety and surveillance necessary
Limitations of Section 48
-cannot exceed 48hours
-approval to use should be obtained from a DI unless
–immediacy does not allow for prior planning
-statutory criteria is met
-an opportunity arises to obtain evidential material that would otherwise be lost if not taken at time.
SDW max duration
60 days. Must renew after.
