Search and Surveillance Flashcards
Define reasonable grounds to suspect (RGTS)
means having a sound basis for suspecting that a situation or circumstance exists
(suspect offence has/is/will be committed)
Define reasonable grounds to believe (RGTB)
Means having a sound basis for believing that a situation or circumstance exists.
Eg believe that a search will find evidential material you are looking for
Reasonable Grounds in practice you must…
- You must be able to clearly describe your reasons - your reasonable grounds - for holding the belief/suspicion
- you must record your reasonable grounds for using a search power in your notebook. This is your decision log.
What may you be required to do around your RGTS/B decisson log?
- report on your decision to use a power and your grounds for using it
- justify your use of a power in court or in other formal proceedings
Define a lawful search
A search conducted
- with a search warrant, or
- under a warrantless search power, or
- with a person’s consent
Define a reasonable search
A search that
- complies with section 21 of the New Zealand Bill of Rights Act, and considers factors such as
- the nature of the search
- how intrusive the search is
- where and when the search takes place
Section 21, New Zealand Bill of Rights Act 1990.
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise
What must a decision not to apply for a search warrant be based on?
It must be based in RGTB that it is not practicable to apply for a search warrant in the circumstances.
What’s things should you consider when deciding if it is practicable to apply for a search warrant?
- is there time to gain approval and apply for a search warrant
- can the scene be secured (s117)
- are reasonable resources (including number of staff) available to minimize risk and ensure safety
- location of the search and who may be present
remember to record this in your decision log
If it is not practicable in the circumstances to apply for a search warrant, what other two options are available to you.
- search using a warrantless power
- search by consent (not the most desirable)
Why use a search warrant?
- Ensures judicial oversight
- Provides greater protection for Police and the public
- Requires recording and reporting of results
What are the four possible reasons that must exist 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
or if you could use a search power, but if so just use the power
Before undertaking a consent search, what must you advise the person?
- the reason for the proposed search, and
- they may consent or refuse to consent to the search
Consent search “fish hooks”
- they may withdraw their consent at any time, if so you must stop immediately
- make sure to record your ground for requesting the consent search
- make notes about the search in your notebook
- young people U14 cannot consent to a search (unless found driving and no one over 14 can consent)
Do you need to report a consent search under S&S?
No
Define Evidential Material
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.
Define tangible
tangible means something that may be touched
Define intangible
Intangible means ‘unable to be touched; not having physical presence’
What does CADD stand for?
- Concealed
- Altered
- Damaged
- Destroyed
Examples of CADD
concealed
By burying or hiding items in another place or removing items
Examples of CADD
Altered
By changing or removing serial numbers from stolen property in an attempt to disguise it
Examples of CADD
Damaged
By cutting out the firewall of a stolen car to remove an identifying feature
Examples of CADD
Destroyed
By consuming food, alcohol, or drugs, burning clothes
When exercising search powers, what are your obligations under Section 131
You MUST RAIIN
- state the reason for the search (if warrantless)
- state the name of the Act
- announce your intention to enter and search
- identify yourself by name or unique identifier (QID)
- Provide evidence of identity if not in uniform
- give notice by providing a copy of the search warrant
remember BOR for anyone detained
What other obligations do you have when a search power is used?
MUST
- provide a copy of the search warrant, or warrantless search notice (POL 1275)
- Provide an inventory of items seized (with 7 days)
- report use of certain powers (Section 169)
- consider privilege (sections 136 - 147)
What “notice” obligation do you have for executing a search warrant?
- provide a copy of the warrant
What “notice” requirement do you have for a warrantless search?
- state the name of the enactment under which the search is taking place, and the reason for the search under that enactment (unless unsafe or impractical)
- to comply with this can use POL1275
Exceptions to identification and notice
RGTB if compliance would
- endanger any person’s safety
- preducie the successful use of the entry and search power
- prejudice on-going investigations
What if a person refuses entry?
May use reasonable force to enter of P refuses entry or does not allow entry in a reasonable time
What if nobody at place to be searched?
May use reasonable force to enter if RGTB no one is lawfully present.
If so, must leave copy of warrant or POL1275 and inventory of items seized. As soon as practicable but within 7 days of competition of search.
Search Powers under Section 110
- enter and search the PL, V, or T
- search and items found in the PL, V, or T (if reasonable)
- use reasonable force in respect of any property for purpose for carrying out lawful search
- seize anything that is 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 PL, V, or T
- Bring and use trained law enforcement dog and handler
- Access any computer system or other data storage device
- copy intangible material
- take photos, sound and video recording and drawing
What if RGTB any person will obstruct or hinder?
Use section 116
- exclude that person from that PL, V, or T, or any area of PL, V, T
- give any reasonable direction to that person
Additional power during search
Section 116
Can secure a PL, V, T to be searched and exclude any P from there
Section 118
Can detain people when searching PL & V for the purposes of determining if there is any connection between P and the PL or V and object of search
Section 119
Search P found when searching PL or V if
- RGTB EM that is object of search is on them
- RGTS the P is in possession a dangerous item that is threat to safety and need immediate action
Section 120
if in fresh persuit and RGTB EM still on P, can enter any place to apprehend the P and search P or V.
Special rules for searching people
- any item that the person is wearing, carrying, has in their physical possession or immediate control
- must be conducted with decency and sensitivity. And provides privacy and dignity
- can seizie if the item you’re searching for
- can seize other items if can be lawfully seized
What does AWOCA stand for?
- Ask - the person to comply
- Why - give reason you want to do it
- Option - what are their options
- Confirm - they understand the options
- Action - take actiom
Powers if somebody arrives at PL or V and starts talking to a person detained under section 118
- exclude that person from the search scene if RGTB the person will obstruct/hinder your powers
- detain that person to determine if there is a connection between them and object of search
- search them if RGTB they may have EM on them
- search them if RGTS may have a dangerous item on them and need to immediately address threat
Recognized privileged material includes material involving communications with…
- legal advisers
- ministers of religion
- medical practitioners
- clinical psychologists
- informers
- journalists
Privilege - practical procedures
You must:
- ensure that the person or their representative is present when the search is undertaken
- give the person a reasonable opportunity to claim privilege
- they must as soon as practicable provide a list of things claimed to be privileged
- you must provide an inventory, allow them to check, and leave a copy with them
- they may make a copy before it is taken
- if RGTB sth discovered is privileged, the must provide opportunity to claim privilege
Search Warrant process overview (7 steps)
- Gain prior approval
- Gain online approval
- Gain Issuing Officer authorisation
- Plan and brief search warrant execution
- Execute Search Warrant
- Report outcomes
- File investigation records
What options do you have when considering if it’s practicable to obtain a search warrant
- apply for a search warrant orally
- apply for a search warrant without approaching an issuing officer in person (by phone or email)
- secure a scene while you apply for a search warrant for a maximum period of 6 hours (Section 117)
What must you do before making an online application
- Be sure you have RGTS an Imprisonable offence has/is/will be committed and RGTB the search will find evidential material
- Have checked the target(s) history in NIA for other search warrant applications/outcomes
- Have assessed the risk associated with executing the search warrant
- Have obtained Initial approval from a supervisor at or above the rank of sergeant to proceed with the on-line application
How must the risks be dealt with
- identifed
- assessed
- considered in planning how you execute the search warrant
What two risk assessment tools must be used in assessing the risk?
- Planned Action Risk Assessment and CARD prompt
- TENR applied
What does Section 117 authorize you to do?
If RGTB EM will be CADD you may:
- enter and secure a PL, V, T and
- secure any item found there, and
- direct any person to assist with entry and securing the PL, V, T or items in it
When may 117 powers be exercised until?
Until the first of
(a) the expiry of 6 hours from when the power is first exercised
(b) the warrant is available for execution at that PL, V, T
(c) the application for the search warrant is refused.
Who can issue a search warrant?
- District Court Judge
- High Court Judge
Or any person authorized by the Attorney General such as:
- JP
- CM
- Registrar
- Deputy Registrar
What restrictions may an issuing officer put on a search warrant?
- restrict the time when a search warrant can reasonably be executed
- require the occupier or person in charge of a place to provide reasonable assistance to the officer executing the warrant
- requiring a report on the search warrant within a specified time
What should you do when an Issuing Officer does not sign warrant
- record the Issuing Officer’s reason for refusing to sign
- consider the issues raised and if possible re-draft the application to ensure you have addressed the issues
- re-submit the application to the same Issuing Officer
What should you do when an Issuing Officer does not sign warrant and the issues cannot be addressed?
- make further enquiries to support (or otherwise) the application
- consider whether to continue your investigation without conducting a search
- if the reasons do not seem justified, consult Legal Services
Who may execute a Search Warrant?
The person to whom it is directed and any constable
How long is a Search Warrant valid?
No more than 14 days from the date of issue, as specified by the IO, or
No more than 30 days from the date of issue as specified by the IO if you have a justified reason why this is necessary and the IO is satisfied
When can a Search Warrant be executed?
- at any time that is reasonable under the circumstances, or
- at a restricted time required by the IO as a condition of execution
When is a Search Warrant considered executed?
When you (or anyone assisting you)
- have seized the evidential material specified in the search warrant, or
- leave the PL, V, T and do not return with 4 hours.
How often can a Search Warrant be executed?
- Once, unless
- more than one execution is applied for and authorized in the search warrant.
Risk assessment must be ongoing, in preparing for a search warrant execution you must…
- review and re-assess the identified risks
- work with others to identify and consider any further risks
- plan how to manage and minimize any identified risks
- determine how risk management will be communicated in your search warrant briefing
When may you apply to a Judge to postpone your obligation to provide a copy of the Warrant?
If providing a copy of the Warrant would:
- endanger the safety of any person, or
- prejudice on-going investigations
When should the application to postpone giving a copy of the Warrant under 134 be done?
- at the time of the SW application, or
- before 7 days have passed after the SW execution
How long can a Judge postpone the obligation to provide a copy of the Warrant & inventory?
A period not exceeding 12 months.
What actions can you use reasonable force to do?
- enter the PL, V, T (Section 131)
- search PL, V and seize (Section 110)
- carry out a search of a person (Section 125)
GSMEAC considerations
Ground
- location to be searched
- address
- neighbours
GSMEAC considerations
Situation
- reason for seeking the SW
- background on any suspects
GSMEAC considerations
Mission
- address
- suspects
- specific EM sought
GSMEAC considerations
Execution
- timings
- MOE
- roles (O/C Scene, O/C Exhibits etc)
- responsibilities
- obligations on entry
- managing suspects
- searching for EM
- recording EM
- assisting vulnerable people
- sequence of events
- managing risk and safety
GSMEAC considerations
Administration and Logistics
- travel to and from the scene
- timing of execution
- recording of EM seized
GSMEAC considerations
Command and Signals
- cell number and radio chanels
- before executing the SW
- during the execution
- debrief
The person in charge of the briefing should?
- ensure all requires staff are present
- reinforce verbal info with visual prompts
- use maps, charts, diagrams, photos
- provide copies of all important docs
- ensure all staff are clear on roles
- advise staff of what to record in NB as entries may be disclosable.
Rules and Obligations when executing a SW
- identification and notice requirements when searching PL, V, T (section 131)
- the rules for searching people (section 125)
- powers incidental to search (section 110)
- reporting (section 169)
Additional powers when executing a SW
- secure a PL, V, T to be searched and excluding any person from there (section 116)
- powers of detention incidental to search of PL, V. (section 118)
- powers of search by a person who has a power of arrest (section 119)
- stopping vehicles for search (section 121)
- moving vehicles for search/safekeeping (section 122)
- seizure of items in plain view (section 123)
- items of uncertain status may be seized (section 112)
Obligations on entry when executing a SW
- state the name of the Act and reason for the search
- announce your intention to enter and search
- identify yourself by name or unique identifier (eg QID)
- provide evidence of identity if not in uniform
- provide a copy of the Warrant
Executing a SW for a vehicle, what does Section 127 allow you to do?
enter any place to locate the vehicle and execute the search warrant if you have RGTB the vehicle is there
What do you need to seized items in plain view
Need RGTB you could have seized the item under a search warrant or other search power
What may you do with items of uncertain status?
May remove the item for examination or analysis to determine whether it may be lawfully seized.
must be within the scope of your original warrant
Who may apply for a production order?
Any enforcement officer
When do you need approval from a district approver?
(production order)
Before making an application directed at a telco
What must the district approver for a PO take into account before approving?
- the grounds for applying for a PO are met
- the resource benifit of making an application is advantageous to Police and the investogation
- the info sought does not make unreasonable or unnecessary demands on the telco
What must you do if your PO is for a media organization?
- get approval from a Police Executive member if PNHQ or District Commander if district, and
- follow guidance from ‘Search Warrants, Production Orders, and examination orders involving media organizations in the Search’ chapter in the Police Manual.
Who should you gain approval from generally for a POA
A constable at or above the position level of Sergeant where practicable.
Grounds for applying for a PO
- Suspect that an offence has/is/will be committed
- Believe the the documents sought constitute EM of the offence, and are in the possession or under the control of the person against whom the PO is made.
What does an IO need to be satisfied of if they are to accept an oral application for a PO?
- requiring a written application would result in delay that would compromise the effectiveness of the search, and
- the question of whether the order should be issued can be properly determined on the basis of oral communication/personal appearance, and
- all required information is supplied to them (orally, or partly orally and partly in writing)
What are the obligation if an oral application for a PO is granted?
- IO must record the grounds for the application as soon as practicable
- the applicant must complete the application form capturing the information conveyed to the IO as soon as practicable and in any event within 24 hour of the order
When can hearsay evidence be used in a PO application?
If it is highly reliable
How can you indicate hearsay evidence to be used in a POA is “highly reliable”?
By stating:
- sufficient information to prove the reliability
- the informant’s reliability and whether they have given reliable info in the past
- whether the info has been confirmed by other means
When the execution of a search warrant or other statutory power is justified by the outcome, will compensation for damage/loss be paid?
Compensation will seldom be paid.
Compensation for justifiable damage will not be paid
When the execution of a search warrant or other statutory power is not justified by the outcome, but the grounds for execution were sound, will compensation for damage/loss be paid?
Compensation is unlikely to be paid. However any related claims will be considered on a case by case basis.
Compensation for justifiable damage is unlikely to be paid
Damage caused to rental properties.
(justified by outcome, or grounds for execution were sound)
Compensation for justifiable damage will not generally be available
Unreasonable searches or unjustified damage.
Compensation may be available in respect of any claim
Mistakes when search warrants or powers are executed
Compensation is likely a bailable in respect of any claim
Policy around damage
Police employees must not incur expenditure or any indication or undertaking on behalf of Police to rectify damage, as this pre-emps any decision as to the payment of compensation
When a claim (for damage) arrises or is likely to arrise, what should be done?
The officer in charge of the incident should direct it to the District Commander or National Manager for consideration along with a report.
What should be in the report to the District Commander/National Manager about damage (when expecting a claim)
- the circumstances in which the search warrant or statutory power was executed
- the grounds for its execution
- the damage caused and the associated circumstances
- the outcome of the search warrant or statutory power being used
- details regarding the owner of the property and the occupier or user of the property, at the relevant time
- the nature and basis of the claim, as stated by the owner of the property
- any steps taken by Police or the owner to prevent further loss or damage
Securing Premises
Premises must never be left unoccupied and insecure after a forced entry, as liability for any loss may arise.
How to deal with an insecure property after forced entry
- liase with owner to secure their own property and if practicable wait for them or an agent to arrive to do this
- at the owner/occupier’s request engage a contractor to make it secure on the understanding the owner will bear the cost
- attending staff effect a temporary repair where feasible
What is Police Surveillance?
Police surveillance is planned and directed activity. Either open or covert, and for the purpose of:
- observing and recording the observation of P, V, PL, T
- ascertaining the location of a T or P or whether a thing has been tampered with
- intercepting a private communication
What is a surveillance device?
A surveillance device may be any one or more of the following
- an interception device
- a tracking device
- a visual surveillance device
What is a visual surveillance device?
Visual surveillance device
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or capable of being used to observe, or observe and record, a private activity
(b) Does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision
When is an SDW required?
must if
(a) use an interception device to intercept a private conversation
(b) use a tracking device, except if a tamper alert only and not trespass to land/goods
(c) observe private activity in private premises, and any recording of that observation, by means of a visual surveillance device
(d) use of surveillance device involving trespass to land or trespass to goods
(e) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of that observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purpose of a single investigation, or connected series of investigations, exceeds-
(i) 3hrs in any 24hr period; or
(ii) 8hrs in total
Define “private premises”
Private premises means a private dwellinghouse, a marae, and any other premises that are not with the definition of non-private premises
Define “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.
Define “private activity”
Private activity means activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants
Define “private communication”
Private communication -
(a) means a communication (whether in oral or written form, or in the form of a telecommunication or otherwise) 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; but
(b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so
Define “trespass surveillance”
trespass surveillance means surveillance that involves trespass to land or trespass to goods
Define “curtilage”
curtilage means the land immediately surrounding a house or dwelling and structures, but excluding any associated ‘open fields beyond’
Define “intercept”
intercept, in relation to a private communication, includes hear, listen to, record, monitor, acquire, or receive the communication either
(a) while it is taking place; or
(b) while it is in transit
Define “interception device”
interception device-
(a) 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 or record a private communication (including a telecommunication) ; 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
When may an interception device SDW be granted?
- offences punishable by 7 or more years
- identified Arms Act 1983 offences
- identified Psychoactive Substances Act 2013 offences
Define “tracking device”
tracking device-
(a) means a device that may be used to hep ascertain, by electronic or other means, either or both of the following:
(i) the location of a T or a P
(ii) whether a thing has been opened, tapered with, or in some other way dealt with; but
(b) Does not include a vehicle or other means of transport, such as a boat or helicopter
When can you use a Surveillance Device without an SDW?
Not exceeding 48hrs if entitled to apply for SDW (based on below) and obtaining a SDW within the time in which to undertake surveillance is impractical.
If
RGTS offence punishable by 14 or more years, or
RGTS category 3 or 4 Arms Act 1983 offence, or
RGTS MODA ‘75 is/has/will be committed
and
RGTB use of SD would obtain EM
OR
RGTS s18(2) exist and necessary to seize the arms
OR
RGTS offence has/is/will be committed likely to cause injury to any person or serious damage to prop, or risk to life and safety requiring an emergency response and SD necessary to prevent/avert offending
Who approves an emergency use of a surveillance device?
A Detective Inspector, unless
- immediacy does not allow for approval
- statutory criteria met
- an opportunity arrise to obtain EM that would otherwise be lost if not taken
If use of emergency surveillance device powers is used (for under 48h) when must a notification to a Judge be made?
Within 1 month after the last day of any period of 48hrs or less a surveillance device was used.
What is the maximum time a surveillance device can be used under a single SDW?
60 days after the date on which the SDW was issued.
