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CIB Modules September 2019 > Search and Surveillance 2012 > Flashcards

Search and Surveillance 2012 Flashcards

1
Q

Define RGTS

A

means having a sound basis for suspecting that a situation or circumstance exists.

Example:
You enter a house or vehicle because you suspect an offence has been, is being, or is about to be committed there.

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2
Q

Define RGTB

A

Reasonable Grounds to Believe (RGTB) means having a sound basis for believing that a situation or circumstance exists.

Example:
You enter and search a house or vehicle, or search a person because you believe that a search will find the evidential material you are looking for.

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3
Q

When you form a suspicion or belief and choose to excersize a warrantless search power what is required

A

Record, Report, Justify

You must:

• record your reasonable grounds for using a search power in your notebook. This is your decision log.

Be aware that you may be required to:
• 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.

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4
Q

Three types of lawful search

A
  • with a search warrant, or
  • under a warrantless search power, or
  • with the person’s consent
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5
Q

A reasonable search is a search that:

A 
• complies with section 21 of the New Zealand Bill of Rights Act
and considers
• the nature of the search
• how intrusive the search is
• where and when the search takes place.
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6
Q

Considerations when deciding if it is practicable to obtain a warrant

A

STREL

  • can the Scene be secured (under section 117)
  • is there Time to gain approval and apply for a search warrant
  • Reasonable resources (including number of staff) available to minimise risk and ensure safety?
  • is the Evidential material at risk
  • Location of the search and who may be present

There must be RGTB that it is not practicable..

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7
Q

Two options when it is not practicable to obtain a warrant

A
  • Warrantless power

- Consent search

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8
Q

Why use a search warrant?

A
  1. Ensures judicial oversight
  2. Provides greater protection for Police and the public
  3. Requires recording and reporting of results
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9
Q

Before conducting a search by consent, you must determine that the search is for one of the following reasons

A
  • 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
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10
Q

Before conducting a search by consent, you must advise the person from whom consent is sought:

A
  • of the reason for the proposed search; and

* they may consent or refuse to consent to the search.

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11
Q

Rules around under 14’s and consent searches

A

A person under 14 is unable to give consent of a 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).

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12
Q

Evidential material definition

A

Evidential material, in relation to an offence or a suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.

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13
Q

Tangible and Intangible definitions

A

Tangible means something that may be touched.

Intangible means ‘unable to be touched; not having physical presence’.

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14
Q

Obligations Under Section 131 when searching a place vehicle or thing

A

Reason Act Intention Name Notice RAINNB

-Notice = Copy of warrant
OR
-Reason if you are conducting a warrantless search

  • Act under which you are searching
  • Intention to enter and search
  • Name or unique ID

-Bill of rights for detained person

You must also:

  • Consider privilege
  • Report your use of powers (S169)
  • Provide inventory of items seized
  • Show ID if not in uniform
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15
Q

When are you exempt from giving notice of entry for a search

A

RGTB no one home or that it would:

  • endanger any person’s safety
  • prejudice the successful use of the entry and search power
  • prejudice on-going investigations
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16
Q

If no one is home at the time of search

A
  • Enter using reasonable force
  • Leave a copy of warrant or POL 1275
  • Inventory (268) of items seized as soon as practicable within 7 days
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17
Q

Powers under section 110

A

enter and search the place, vehicle or other thing

RUSS BBC CAT

  • Request assistance with entry and search
  • Use reasonable force for the purpose of carrying out the search
  • Search any item or items found in that place, vehicle or thing
  • Seize anything that is the subject of the search or anything else that may be lawfully seized
  • Bring and use any equipment found
  • Bring and use a trained law enforcement dog and its handler
  • Copy any document, or part of a document, that may be lawfully seized
  • Copy intangible material e.g. computer data
  • Access a computer system or other data storage device
  • Take photographs, sound and video recordings and drawings
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18
Q

Powers under section 116

A

You can secure a place, vehicle or other thing to be searched and exclude any person from there.

  • exclude that person from the place, vehicle or other thing being searched, or any area in or on the place or vehicle
  • give any reasonable direction to that person if RGTB they will obstruct
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19
Q

Powers under section 118

A

You can detain people when searching places and vehicles for the purposes of determining whether there is any connection between a person at the place or in or on the vehicle and the object of the search.

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20
Q

Powers under section 119

A
  • You can search people found when searching places and vehicles if you have RGTB that evidential material that is the object of the search is on that person or
  • if you have RGTS that the person is in possession of a dangerous item that poses a threat to safety and you believe that immediate action is needed to address that threat.
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21
Q

Powers under section 120

A

If you intended to search a person or vehicle and they leave, you are in fresh pursuit, and with RGTB that relevant evidential material is still on the person, you have the power to enter any place to apprehend the person and search the person or vehicle.

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22
Q

If a person resists your search use what process ?

A

AWOCA.

Ask Why Options Confirm Action

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23
Q

Powers under section 125

A

You can search any item that the person is wearing, carrying, has in their physical possession or immediate control

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24
Q

Privileged material examples

A
  • legal advisers
  • ministers of religion
  • medical practitioners
  • clinical psychologists
  • informers (informants)
  • journalists

(Unless information is made, complied or prepared for a dishonest purpose)

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25
Q

Privilege – practical procedures

A

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.

If you seize an item and privilege is claim or you expect it will be claimed you must stop examining or searching it.

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26
Q

Search warrant process

A

POI PERF

Prior approval
Online approval
Issuing Officer authorisation
Plan and brief search warrant execution
Execute search warrant
Report outcomes
File investigation records
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27
Q

What are some other options when it is not practicable to prepare a Search Warrant Application

A
  • Oral application (In person)
  • Without approaching an officer (over the phone)
  • Secure the scene under 117 (up to 6 hours)

These options should only be used when others are not practicable

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28
Q

Before making an search warrant application what four things should you make sure of:

A

1 - RGTS offence punishable by imprisonment has/is/will and RGTB search will locate EM

2 - Checked target history in NIA for other applications

3 - Assess the risk of execution

4 - Obtain initial approval for Sgt or above.

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29
Q

Powers under section 117

A
  • If a SW i being or is about to be made
  • And you have RGTB evidential material may be CADD before SW issued you may:
  • enter and secure a place, vehicle or other thing, and
  • secure any item found there, and
  • direct any person to assist with entry and securing the place or vehicle or securing items in it.

The powers conferred by section 117(1) may be exercised until the first of the following occurs:

(a) the expiry of 6 hours from when the power is first exercised:
(b) the warrant is available for execution at that place or vehicle or in respect of that other thing:
(c) the application for a search warrant is refused.

30
Q

Who can issue a search warrant?

A 
An Issuing Officer may be a:
• District Court Judge
• High Court Judge
Or any person authorised by the Attorney General such as a:
• Justice of the Peace
• Community Magistrate
• Registrar
• Deputy Registrar
31
Q

When the search warrant application is refused

A
  • Record the Issuing Officers reasons for refusing to sign
  • Re-draft the application, ensuring you have addressed issues raised
  • Re-submit the application to the same Issuing Officer

If still unsigned:

  • make further enquiries to support (or otherwise) the application
  • consider whether to continue your investigation without conducting a search
  • if the reasons for not signing the search warrant do not seem justified, submit a report to Legal Services for direction
32
Q

Who may execute a search warrant?

A

The person to whom it is directed or any constable.

33
Q

How long is a search warrant valid?

A

No more than 14 days from the date of issue, as specified by the Issuing Officer, or

No more than 30 days if you have justified why this is necessary and the Issuing Officer is satisfied

34
Q

When can a search warrant be executed?

A
  • at any time that is reasonable under the circumstances, or

* at a restricted time required by the Issuing Officer as a condition of execution.

35
Q

When is a search warrant considered executed?

A
  • When you have seized the evidential material specified in the search warrant, or
  • leave the place, vehicle or other thing to be searched and do not return within 4 hours.
36
Q

When can you make an Application to postpone providing a copy of the search warrant to the occupier - Section 134

A

If providing a copy of the search warrant or inventory would:
• endanger the safety of any person, or
• prejudice on-going investigations

An application should be presented to the judge:
• at the time of the search warrant application, or
• before 7 days has passed after the search warrant execution

(Can be applied for up to 12 months)

37
Q

GSMEAC - 3 points from each

A

Ground
• location to be searched
• address
• neighbours

Situation
• reason for seeking the search warrant
• background on any suspect(s)

Mission
• address
• suspect(s)
• specific evidential material sought

Execution
• timings
• method of entry
• roles – O/C Scene, O/C Exhibits etc
• responsibilities
• managing suspects
• searching for evidential material
• recording evidential material
• assisting vulnerable people
• sequence of events

Administration
• travel to and from the place to be searched under warrant
• timing of the search warrant execution
• recording of evidential material seized

Communication
• cell-phone numbers and radio channels
• before executing the search warrant
• during execution of the search warrant
• debrief
38
Q

The person in charge of the search warrant briefing should:

A

EPU AE

  • Ensure all required staff are present
  • Provide all information including copies of all important documents
  • Use visual prompts like maps, charts, diagrams, photographs
  • Advise staff of what they can record in their notebooks during the briefing (all entries may be disclosable)
  • Ensure all staff are clear about their roles and responsibilities
39
Q

Powers under Section 125

A

(Searches of people)

You must give RAN.

You may:

  • Detain the person
  • Use reasonable force if necessary
  • Search any item in their immediate possession or control
  • Seize anything in their possession if it may be lawfully seized
40
Q

Powers under section 121

A

You may stop a vehicle if you have authority to search the vehicle by:
• executing a search warrant or
• using a warrantless power

41
Q

Powers under section 127

A

You may enter any place:
• to locate the vehicle to execute the search warrant if
• you have RGTB that the vehicle is there.

(must comply with 131)

42
Q

Powers Under Section 112 - Items of uncertain status

A

If you are 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

Any item you want to remove must be within the scope of the original search.

Example:

  1. drugs that require analysis at a laboratory
  2. large amounts of documents that may contain evidential material and it is not practicable to sort them on-site.
43
Q

Powers under section 123

A

You may seize any item you find in plain view when you are searching or that you observe if:
• You have RGTB that you could have seized the item under a search warrant or other search power

Example:
You are searching for a person under Section 8 and look inside a wardrobe for that person. You find a bag of cannabis. As the bag is in ‘plain view’ you may seize it under section 123.

44
Q

What is a production order

A

Production orders are orders made under section 74 of the Search and Surveillance Act 2012 requiring a person or organisation (such as a business) to produce documents to enforcement agencies as evidential material of a specified offence.

45
Q

Matters district approver must consider before granting approval for a production order

A

GUT

  • Grounds for applying for a production order are met
  • the information sought does not make Unreasonable or unnecessary demands on the telecommunications provider
  • The offence(s) under investigation are sufficiently serious to justify the resource)
46
Q

If your application relates to a news media organisation, you must

A

• obtain approval from a Police Executive member in the case of PNHQ or a district commander for a district matter

47
Q

Grounds for applying for a Production Order

A

You may apply for a production order if you have reasonable grounds to:
• suspect that an offence has been, is being, or will be committed (it must be an offence for which you could apply for a search warrant), and
• believe that the documents sought by the proposed order:
− constitute evidential material in respect of the offence, and
− are in the possession or under the control of the person against whom the order is sought, or will come into their possession, or under their control while the order is in force.

48
Q

In what form should you apply for a Production Order

A

Must be made in writing unless impractical in the circumstance, in which case you can:

  • make an application orally e.g. by telephone or personal appearance, or
  • have your application considered without a personal appearance or oral communication
49
Q

Production Order oral applications may be accepted by an issuing officer when they are satisfied that:

A
  • A written application would delay and compromise the effectiveness of the search
  • The grounds for the order can be properly determined orally
  • All information has been provided

If granted the applicant must complete the application within 24hrs

50
Q

Using hearsay evidence in Production Orders

A

Can be used in the application, however should be backed by any corroboration and evidence supporting the informants reliability

51
Q

Search Warrants - Situations where compensation is unlikely & likely to be paid

A

RUMS

Rental Damage- not generally
Unreasonable or unjustified search - May be available
Mistaken damage - likely available
S14 entry - Seldom available

Nohting located during warrant - unlikely but case by case

52
Q

When damage is made you should not indicate compensation will be paid. Instead prepare a report for the District Commander or National manager outlining

A

CG DODNS

  • Circumstances in which the search was executed;
  • Grounds for its execution;
  • Damage caused
  • Outcome of the search
  • Details regarding the owner/occupier
  • Nature and basis of the claim, as stated by the owner of the property;
  • Steps taken by Police or the owner to prevent further loss or damage.
53
Q

Process for Securing Premises

A

LAS

Generally this will mean:
• liaising with the owner or occupier to secure their own property.
• at occupier’s or owner’s request, engaging a contractor to secure premises
• staff conducting a temporary repair e.g. by boarding up a window.

54
Q

Surveillance definition

A

Planned and directed activity. Either open or covert, and for the purpose of:
• observing, and any recording of that observation, of people, vehicles, places and things
• ascertaining (tracking) the location of a thing or person, or whether a thing has been interfered or tampered with
• intercepting a private communication

55
Q

What is a surveillance device?

A

A surveillance device may be any one or more of the following kinds of device.
• a visual surveillance device
• an interception device
• a tracking device

56
Q

What is a visual surveillance device?

A

Visual surveillance device –

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used to observe, or to observe and record, a private activity, but
(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.

57
Q

Section 46(c) Activities for which surveillance device warrant required

A

Observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.

58
Q

Private Communication definition

A

(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.

59
Q

Curtilage definition

A

Means the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’.

It defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.

Note: The curtilage of a dwelling does not necessarily equate with the boundary of the property

60
Q

Interception device definition

A

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; 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.

61
Q

Limitations on use of an interception device

A

A surveillance device warrant will only be authorised for use of an interception device for gathering evidential material for:
• offences punishable by 7 or more years imprisonment
• identified Arms Act 1983 offences
• identified Psychoactive Substances Act 2013 offences

62
Q

Voluntary oral communication

A

A voluntary oral communication is a communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (section 47).

63
Q

What is a tracking device?

A

(a) 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
(b) does not include a vehicle or other means of transport, such as a boat or helicopter.

64
Q

What are the two key ingredient required to conduct a search and surveillance S48 emergency power

A
  • ‘entitled to apply’ for a surveillance device warrant.
  • ‘impracticable in the circumstances’ as you need to use a device urgently and it is not immediately practicable to obtain a surveillance device warrant.
65
Q

Situations when you can use a a search and surveillance S48 emergency power

A

14 EADIR

Situations of emergency or urgency is permitted only where the above circumstances apply and the suspected offence has been, is being, or is about to be committed and is:
• punishable by 14 years imprisonment or more and
• you believe that use of the surveillance device would obtain Evidential material in relation to the offence:
• Arms Act 1983 offence
• Drug offence; or

there is a situation which is:
• likely to cause injury or serious property loss / damage and surveillance is necessary to prevent offending from being committed or continuing
• presenting risk to life and safety and surveillance is necessary as an emergency response (section 14)

66
Q

Time constraints - S48

A

The warrantless period for the use of a surveillance device in a situation of emergency or urgency is a period not exceeding 48 hours.

67
Q

Requirement to report SD use – section 60

A

When a warrantless surveillance power is exercised the enforcement officer must provide a notification (report in the Search and Surveillance system) to a Judge within 1 month

68
Q

Period of time surveillance device warrant can be used

A

A surveillance device warrant may be issued for a period of no more than 60 days after the date on which the warrant is issued, and is in force for that period.

69
Q

Situations when a SDW is required

A

S46(1) Search and Surveillance Act 2012

(1) Except as provided in sections 47 and 48, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:

(a) use of an interception device to intercept a private communication:
(b) use of a tracking device, except where a tracking device is 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 of the device does not involve trespass to land or trespass to goods:
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) use of a surveillance device that involves 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 the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.

70
Q

Approval process for a SDW

A

1 - Initial approval from a Detective Inspector or Acting Detective Inspector (District Crime/Field Crime Manager) - hereafter referred to as “DI”.

2 - CMC Ops Manager approached to confirm capacity.

3 - If no capacity and high priority request, CMC Ops Manager endeavours to reprioritise or involves CMC Approvals Committee.

4 - Request for TSU assistance and confirmation of capacity if required.

5 - Warrant application approved by CSM/FCM.

Because of their complexity, surveillance device warrant applications may be prepared outside the Search and Surveillance (S&S) System using the enhanced features of the Microsoft Word platform.

The warrant must be prepared in the S&S System to obtain the system’s generated unique identification number on the warrant before it is provided to a Judge.

6 - Application checked by a Police legal advisor to verify that the legal requirements of the Search and Surveillance Act 2012 are met.

7 - Application made to Judge.

•Any Police employee can physically file the application at Court on behalf of the applicant.

8 - On issue of warrant, copy of warrant and application provided to CMC/TSU.

CIB Modules September 2019 (4 decks)

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