Search And Surveillance Flashcards
Unlawfully at large definition
Warrant for arrest is in force
UL at large within the meaning of the corrections act or parole act
Prison breaker under 119 of crimes act
Escape from lawful custody under 120 of crimes act
Special or restricted patient within mental health act who has escaped or failed to return
care or special care recipient within the intellectual disability act who has escaped or failed to return
Young person who is subject to order under 311 and has absconded from OT custody
Inevitable discovery
If evidence obtained as result of breach of BOR, and would have been obtained even if breach had not occurred, fact it would have been inevitably found is a factor when determining admissibility under balancing test in section 30 of evidence act. R v Williams 2007, not admissible as matter of course tho
Warrantless powers to search people
11- in custody and about to be locked up
16- found in public place for EM
18- for arm
21,22&23- for drugs
27- for knives and OW
85&88- for arrest or detention
110
Power to seize anything that is the subject of the search or anything else that may be lawfully seized
7
Entry to arrest person UL at large
Suspect
And
Believe in place or vehicle
Enter and search
8
Entry to avoid loss of offender or EM
Suspect imprisonable offence committed And Believe in place or vehicular And Believe if not immediate entry, person will leave or CADD EM Enter and search
Note- not search unless arrested then search incidental to arrest under 83-88
14
Entry to prevent offence or respond to risk to life or safety
Suspect
Place or vehicle
Offence, is or about to be, cause injury or serious loss or damage
Or
Risk to life or safety of any person
Enter
Take action you have reasonable grounds to believe is necessary
15
Entry and search of places to find and avoid loss of EM
Suspect
Offence 14yr+ is or about to be committed
Believe
EM is in place
And
Entry delay to obtain warrant will mean CADD of EM
Enter and search
Power is about urgency. Once passed and scene secure, warrant should then be obtained. Consider 117 if securing not sufficient to preserve EM
16
Searching people in public places for EM
Believe
Person in PP in possession of EM relating to 14yr+ offence
Search
17
Entry and search of vehicles in a public place for EM
Believe
EM relating to 14yr+ offence is in or on vehicle in public place
Enter and search
Use 15 if vehicle not in public place
18
Arms in places or vehicles
Suspect
Arms in any place or vehicle
In respect of cat 3or4 offence or an offence against Arms Act, has, is, or about to be committed
Or
EM in relation to cat 3or4 offence or offence against arm act
May enter
Search
Seize and detain arms or licence found there
Sgt or above approval unless impracticable
28
Searching vehicles for offensive weapons
Suspect
Person travelling in vehicle or who has alighted from it is committing offence in public place against 202(4)(a)
And
Vehicle contains a knife, OW or disabling substance
Search
Disabling substance
Anaesthetising or other substance produced to use for disabling a person, or intended for such use by the person who has it with them
OW
Any article made or altered to use for causing bodily injury, or intended for such use by the person who has it with them
29
Warrantless search of vehicle for stolen property
Believe
Stolen property in or on vehicle
Search
Allows in public place, seek warrant or alternative warrantless if on private property
83
Entry and search of places after arrest
If arrested Believe EM relating to the offence is at a place And If entry delayed to obtain warrant, CADD likely enter and search
Whether or not person arrested there or not
84
Entry and search of vehicles after arrest
If arrested
Believe
EM relating to offence for which arrested is in a vehicle
Enter and search
Consent search notes
Last option- SW or warrantless if can first
Must have reason to justify asking for consent search
Advise reason and can withdraw consent anytime
Under 14 can not consent to search of place, vehicle unless driver and no over 14 present
Exceptions
Search conducted as a condition of entry to any public or private place
Search under a power conferred by an enactment
Entry to property under an implied licence
92
Purposes for which consent search may be undertaken
Prevent commission of offence
Protect life or property or prevent
Investigate whether offence committed
Any purpose in respect of which you could exercise a power of search conferred by an enactment if you held a particular belief of suspicion specified in the enactment
93
Advice before consent search
Determine search is for a purpose -92
Advise person of reason and that they may consent or refuse to consent
Good practice is to identify self as well
94
When search by consent is unlawful
Not for 92 purpose
Fail to give 93 advice
Person does not have authority to give consent
95
Restrictions in persons under 14 giving consent
Can’t for place, vehicle or other thing unless found driving a vehicle and no other over 14 for consent.
Does not restrict them giving consent to search of themselves or anything in their immediate possession or control
What search powers authorise
Reasonable force in respect of property to search and lawful seizure
Seize
Bring and use equipment and use any equipment found. Also electricity to operate equipment that is reasonable in the circumstances
Use trained dog
Copy documents
Access a computer system or other storage device
Copy intangible material
Take photos and recordings
113
Using assistance during search
Accompany you when first enter
Provide reasonable supervision
Their powers include to enter and can only do other things when directed by you
This does not include other constables assisting
117
Power to secure scenes when SW is about to be applied for
Enter and secure place, vehicle, other thing
And
Secure anything found
And
Direct any person to assist with entry and securing
If believe
EM may be CADD before decision on SW application made
Expires after 6 hours from when exercised or
Once warrant is available for execution or
SW application refused
Whichever is first…
118
Powers of detention incidental to searches of places and vehicles
When search power in relation to place or vehicle
May detain any person to determine connection
If there from start of search
Arrives or enter or tried to during search
Reasonable force to effect
Detain for reasonable period but not for longer than search duration
Must take active steps to determine if connection so freed ASAP if cleared of suspicion
119
Powers to search persons at a place or vehicle
May search if
Found at or in place or vehicle
Arrives
Stops at or enters, tries too
If have reasonable grounds to believe
EM that is object if search is on that person
Or
Suspect person is in possession of dangerous item which poses threat to safety and you believe immediate action needed
Use 19 or 21 instead if drug related
120
Powers of search when suspect pursued
If intend to search person or vehicular but either leaves before able to start or complete
Apprehend
Enter place to apprehend person or vehicle
If have
Been freshly pursuing person from location
And
Reasonable grounds to believe relevant EM still on person or in vehicle
Fresh pursuer only person to undertake search unless acting as that officers assistant under 113 and under their direct supervision and control
127
SW to enter and search vehicles
If SW authorises the search and entry of vehicle
May enter any place if have reasonable grounds to believe is there
131
ID and announcing entry
Intention and stat power being used
ID
Copy of SW if not warrantless
Do not need to announce or ID if reasonable grounds to believe
No person lawfully present
Compliance would endanger safety of another, prejudice the successful exercise of the entry and search power or prejudice ongoing investigations
112
Items of uncertain status
If not sure if can be lawfully seizes and not reasonably practicable to determine where search takes places, may remove for exam or analysis to determine whether it may be lawfully seized
Removal power limited to item search actually for. I.e white powder and looking for cocaine. Not a tv that may be stolen when looking for cannabis
123
Seizure of items in plain view
Observations while searching result in reasonable grounds to believe you could have seized the item u der
Any SW obtained or
Any other search power exercisable
Stopping vehicles S&S vs LTA
S&S to stop and move vehicles and to establish road blocks for the purpose of search and or to effect arrest
LTA powers not to be used for purpose of search
Curtilage
An area attached to a dwelling house and forming one enclosure with it. In an urban area it would include the area within a dwelling fenced boundary
121
Stopping vehicles with or without warrant to search
Warrantless if satisfied grounds exist to search the vehicle
Warrant if satisfied has been issued and is in force
122
Moving vehicle for purpose of search or safekeeping
May move to another place if find or stop the vehicle and
Lawful authority to search but impracticable at that place
Or
Believe necessary to move the vehicle for safekeeping
128
Duty to remain stopped
May require to remain stopped as long as reasonably necessary for the exercise of any powers in respect of
The vehicle
Or
The occupants
129
Duty to provide info to vehicles driver
Immediately after stopping must
Identify self
State name of enactment under which search taking place and reason for unless impracticable
ID shown if not in uniform
9
Stopping vehicles without warrant to effect arrest
Suspect UL at large Or Committed imprisonable offence And Believe person in or on vehicle
10
Powers and duties under 9 vehicle stop
Person who suspect UL at large or committed offence, require to supply name, address and other contact details
Search vehicle if believe they are in
Search vehicle that is EM in relation to offence if person arrested or is seen fleeing from vehicle before can be arrested
Must tell driver object of search first
30
Obtaining authorisation for a warrantless road block
If hold rank of sgt or higher or acting in that rank
Believe that in vehicle is a person who suspect
Had committed imprisonable offence
Or
UL at large
And
Suspect vehicle will travel past the place where proposed road block is to be established
Must be satisfied safety of all road users will be ensured
31
Duration and record of warrantless road block authorisation
Initial foetid not exceeding 24hours
And
May be renews from time to time by a DC judge for single period up to 24hr
If authorise, must keep written record of
Location
Period for and grounds for authorisation
32
Powers under road block
Establish at specified place
Stop vehicles
Require particulars of persons suspect has committed offence
Search for person who is UL at large or committed offence if believe in vehicle
27
Warrantless search of people for OW
Suspect
Committing offence against 202(4)(a) of crimes act
Possession of knife, OW and disabling substances
Searches of arrested or detained
Rub down 85-87.
85 to ensure nothing that will harm or facilitate escape
87- may include visual exam in run down and use instrument but must not insert any instrument
Warrantless under 88- if believe EM, harm or facilitate escape. EM could be swabs, blood, residue etc
11 - search if person who has been taken into lawful custody at station or other premises or vehicle being used for police purposes
And
Is, or is to be, locked up
After locked up, can only be searched if
Not searched before
Or
Suspect been near another person not her locked up or another eligible to be searched but wasn’t
Or
Believe in possession that may be used to harm
R v Williams 2007
Court of appeal confirmed that the concepts of lawfulness and unreasonableness were distinct. Searches that are lawful may nevertheless be unreasonable taking in to account the manner, time and place of the search
Kearns
and
McRae be Police 2017
Kearns- relates to pocket knife being seen and search invoked. Should have asked first as may be reasonable excuse for having it
McRae- similar search but after machete seen. Deemed by high court that could have asked for reason first but reason would not have been reasonable so therefore search still admissible
