Search and Surveillance

Question 1

Section 7

Answer 1

Entry without warrant to arrest person unlawfully at large

A constable may enter a place or vehicle without warrant to search for and arrest a person if the constable has reasonable grounds—

(a) to suspect that a person is unlawfully at large; and
(b) to believe that the person is there.

Question 2

Section 9

Answer 2

Stopping vehicle to find persons unlawfully at large or who have committed certain offences

A constable may stop a vehicle without a warrant to arrest a person if the constable has reasonable grounds

(a) to suspect that a person
(i) is unlawfully at large; or
(ii) has committed an offence punishable by imprisonment; and
(b) to believe that the person is in or on the vehicle.

Question 3

Section 10

Answer 3

Powers and duties of constable after vehicle stopped

(1) A constable exercising the stopping power under section 9 may do any 1 or more of the following:
(a) require any person in or on the vehicle who the constable has reasonable grounds to suspect is unlawfully at large or has committed an offence punishable by imprisonment to supply all or any of his or her name, address, other contact details, and date of birth:
(b) search the vehicle to locate the person referred to in section 9, if the constable has reasonable grounds to believe that the person is in or on the vehicle:

(c) search the vehicle to locate property that is evidential material in relation to any offence in respect of which the vehicle was stopped under section 9, if the person referred to in section 9—
(i) has been arrested; or
(ii) is seen fleeing from the vehicle before he or she can be arrested.

(2) Before conducting a search under a power conferred by subsection (1)(c), a constable must tell the driver the object of the proposed search, if the driver is not the person referred to in section 9.

Question 4

Section 14

Answer 4

Warrantless entry to prevent offence or respond to risk to life or safety

(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a place or vehicle may—
(a) enter the place or vehicle without a warrant; and
(b) take any action that he or she has reasonable grounds to believe is necessary to prevent the offending from being committed or continuing, or to avert the emergency.
(2) The circumstances are as follows:
(a) an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or serious loss of, any property:
(b) there is risk to the life or safety of any person that requires an emergency response.

Question 5

Section 18

Answer 5

Warrantless searches associated with arms
(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a person may, without a warrant, do any or all of the following:

(a) search the person:
(b) search any thing in the person’s possession or under his or her control (including a vehicle):
(c) enter a place or vehicle to carry out any activity under paragraph (a) or (b):
(d) seize and detain any arms found:
(e) seize and detain any licence under the Arms Act 1983 that is found.

(2) The circumstances are that the person is carrying arms, or is in possession of them, or has them under his or her control, and—

(a) he or she is in breach of the Arms Act 1983; or
(b) he or she, by reason of his or her physical or mental condition (however caused),—
(i) is incapable of having proper control of the arms; or
(ii) may kill or cause bodily injury to any person; or
(c) that, under the Family Violence Act 2018,—
(i) a protection order or a police safety order is in force against the person; or
(ii) there are grounds to make an application against him or her for a protection order.

(3) A constable may, without a warrant, enter a place or vehicle, search it, seize any arms or any licence under the Arms Act 1983 found there, and detain the arms or licence if he or she has reasonable grounds to suspect that there are arms in the place or vehicle—

(a) in respect of which a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; or
(b) that may be evidential material in relation to a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983.

Question 6

Section 20

Answer 6

Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences

A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—

(a) to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and

(b) to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c) to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.

Question 7

Section 21

Answer 7

Warrantless searches of people found in or on places or vehicles

A constable conducting a search of a place or vehicle under section 20 may, without a warrant, search any person found in or on the place or vehicle.

Question 8

Section 22

Answer 8

Warrantless power to search for controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975

(1) A constable may, in the circumstances set out in subsection (2), search a person without a warrant.

(2) The circumstances are that the constable has reasonable grounds—
(a) to believe that the person is in possession of—
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b) to suspect that an offence against the Misuse of Drugs Act 1975 has been committed, is being committed, or is about to be committed, in respect of that controlled drug or precursor substance.

(3) This section does not—
(a) limit section 20 or 21; or
(b) authorise a constable to enter or search a place or vehicle except in accordance with those sections.

Question 9

Section 27

Answer 9

Searching people in public places without search warrant if offence against section 202A(4)(a) of Crimes Act 1961 suspected

A constable who has reasonable grounds to suspect that a person is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances) may, without a warrant, search the person.

Question 10

Section 28

Answer 10

Stopping and searching vehicles without warrant if offence against section 202A of Crimes Act 1961 suspected

(1) A constable who has reasonable grounds to suspect that the circumstances in subsection (2) exist in relation to a vehicle may search the vehicle.

(2) The circumstances are that—
(a) a person travelling in the vehicle or who has alighted from it is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances); and

(b) the vehicle contains a knife, offensive weapon, or disabling substance.

Question 11

Section 30

Answer 11

Obtaining authorisation for warrantless road block
(1) A senior constable may authorise the establishment of a road block for the purpose of arresting a person in the circumstances set out in subsection (2).

(2) The circumstances are that the senior constable—
(a) has reasonable grounds to believe that in or on a vehicle there is a person who the constable has reasonable grounds to suspect—
(i) has committed an offence punishable by a term of imprisonment; or
(ii) is unlawfully at large; and
(b) has reasonable grounds to suspect that the vehicle will travel past the place where it is proposed that the road block be established; and
(c) is satisfied that, as far as is reasonably practicable, the safety of all road users will be ensured in the area in which it is proposed that the road block be established.

(3) An authorisation may be granted under this section orally or in writing.
(4) In this section, senior constable means a constable who holds a level of position of sergeant or higher, and includes any constable who is acting in any such rank.

Question 12

Section 32

Answer 12

Authorised road blocks implemented without warrant

Any constable may do any or all of the following when a road block is authorised under section 30:

(a) establish a road block at the place specified in the authorisation:
(b) stop vehicles at or in the vicinity of the road block:
(c) require any person in or on any vehicle stopped by the road block who the constable has reasonable grounds to suspect has committed an offence punishable by imprisonment to state any or all of his or her name, address, and date of birth:
(d) search the vehicle for the purpose of locating a person referred to in section 30(2)(a)(i) or (ii), if the constable or any other constable has reasonable grounds to believe that the person is in or on the vehicle.

Question 13

Section 110

Answer 13

Search powers
Every search power authorises the person exercising it—
(a) to enter and search the place, vehicle, or other thing that the person is authorised to enter and search, and any item or items found in that place or vehicle or thing, at any time that is reasonable:
(b) to request any person to assist with the entry and search (including, without limitation, a member of a hapū or an iwi if the place to be entered is of cultural or spiritual significance to that hapū or iwi):
(c) to use any force in respect of any property that is reasonable for the purposes of carrying out the search and any lawful seizure:
(d) to seize anything that is the subject of the search or anything else that may be lawfully seized:
(e) to bring and use in or on the place, vehicle, or other thing searched any equipment, to use any equipment found on the place, vehicle, or other thing, and to extract any electricity from the place, vehicle, or other thing to operate the equipment that it is reasonable to use in the circumstances, for the purposes of carrying out the entry and search:
(f) to bring and use in or on the place, vehicle, or other thing searched a dog (being a dog that is trained to undertake searching for law enforcement purposes and that is under the control of its usual handler):
(g) to copy any document, or part of a document, that may lawfully be seized:
(h) to use any reasonable measures to access a computer system or other data storage device located (in whole or in part) at the place, vehicle, or other thing if any intangible material that is the subject of the search may be in that computer system or other device:
(i) if any intangible material accessed under paragraph (h) is the subject of the search or may otherwise be lawfully seized, to copy that material (including by means of previewing, cloning, or other forensic methods either before or after removal for examination):
(j) to take photographs, sound and video recordings, and drawings of the place, vehicle, or other thing searched, and of any thing found in or on that place, vehicle, or other thing, if the person exercising the power has reasonable grounds to believe that the photographs or sound or video recordings or drawings may be relevant to the purposes of the entry and search.

Question 14

Section 116

Answer 14

Securing place, vehicle, or other thing to be searched

(1) The person carrying out a search may, in a manner and for a duration that is reasonable for the purposes of carrying out the search,—
(a) secure the place, vehicle, or other thing searched, any area in or on that place, vehicle, or other thing, or any thing found in or on that place, vehicle, or other thing:
(b) exclude any person from the place, vehicle, or other thing searched, or from any area within the place, vehicle, or other thing, or give any other reasonable direction to such a person, if the person carrying out the search has reasonable grounds to believe that the person will obstruct or hinder the exercise of any power under this subsection.

(2) A person who exercises any power under subsection (1) must, on the request of any person affected by the exercise of the power,—
(a) identify himself or herself either by name or by unique identifier; and
(b) state the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do so in the circumstances; and
(c) if not in Police uniform, produce evidence of his or her identity.

Question 15

Section 118

Answer 15

Powers of detention incidental to powers to search places and vehicles

(1) If any constable or other person, or a person assisting any constable or other person, exercises a search power in relation to a place or vehicle, that constable or other person may, 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, detain any person—
(a) who is at the place or in or on the vehicle at the commencement of the search; or
(b) who arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out.

(2) A person may be detained under subsection (1) for any period that is reasonable, but not for longer than the duration of the search.
(3) A detention of any person commences under subsection (1) when the constable or other person exercising the search power directs that person to remain at the place or in or on the vehicle and ends when that person is told by the constable or other person, or a person assisting the constable or other person, exercising the search power that he or she is free to leave the place or vehicle.
(4) Reasonable force may be used for the purpose of effecting and continuing any detention under subsection (1).
(5) For the purposes of subsection (1), other person means a person to whom section 115(2) applies.

Question 16

Section 121

Answer 16

Stopping vehicles with or without warrant for purposes of search

(1) An enforcement officer may stop a vehicle to conduct a search under a power to search without a warrant conferred on that officer by this Act or any enactment specified in column 2 of the Schedule to which this section applies if he or she is satisfied that he or she has grounds to search the vehicle.
(2) An enforcement officer may stop a vehicle to conduct a search under a power to search with a warrant issued under this Act or any enactment specified in column 2 of the Schedule to which this section applies if he or she is satisfied that the warrant has been issued and is in force.

(3) A person who exercises a power under this section must, on the request of any person affected by the exercise of the power,—
(a) identify himself or herself either by name or by unique identifier; and
(b) state the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do so in the circumstances; and
(c) if not in Police uniform, produce evidence of his or her identity.

Question 17

Section 125

Answer 17

Special rules about searching persons

(1) If a person exercises a power to search a person, the person exercising the power—
(a) must identify himself or herself either by name or unique identifier; and
(b) must state the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do so in the circumstances; and
(c) if not in Police uniform, must produce evidence of his or her identity; and
(d) may detain the person to enable the search to be carried out (whether at the place of initial detention or while the person is travelling to or is at any other place where the search is carried out), but only for as long as is necessary to achieve that purpose; and
(e) may use any force that is reasonable for the purposes of the search; and
(f) may, in conducting the search, use any equipment or aid to facilitate the search, if it is used in a way that—
(i) involves no or minimal contact; and
(ii) is reasonable in the circumstances; and
(g) may, if he or she considers that either or both of the following are in the interests of the person to be searched, request:
(i) the assistance of a medical practitioner or nurse:
(ii) the assistance of a parent, guardian, or other person for the time being responsible for the day-to-day care of the person to be searched; and
(h) if the search is to be a strip search, may request the assistance of another enforcement officer (whether or not employed or engaged in the same or a different law enforcement agency) who is—
(i) authorised under any other enactment to conduct strip searches; and
(ii) of the same sex as the person to be searched; and
(i) may search any item that—
(i) the person is wearing or carrying; or
(ii) is in the person’s physical possession or immediate control; and
(j) may seize any thing carried by the person or in the physical possession or immediate control of the person being searched if that thing is the subject of the search or may otherwise be lawfully seized; and
(k) may copy any document, or part of a document, carried by the person or in the physical possession or immediate control of the person being searched if that document is the subject of the search or may otherwise be lawfully seized; and
(l) may use any reasonable measures to access a computer system or other data storage device, that the person being searched is carrying or that is in the person’s physical possession or immediate control, if any intangible material that is the subject of the search may be in that computer system or other device; and
(m) if any intangible material accessed under paragraph (l) is the subject of the search or may otherwise be lawfully seized, may copy that material (including by means of previewing, cloning, or other forensic methods either before or after removal for examination); and
(n) may take photographs, sound and video recordings, and drawings of any thing carried or in the physical possession or immediate control of the person if the person exercising the power has reasonable grounds to believe that the photographs or sound or video recordings or drawings may be relevant to the purposes of the search.

(2) Subsection (1)(a), (b), and (c) do not apply in respect of a search conducted under section 11(3).
(3) A person who carries out a strip search, rub-down search, or any other personal search must conduct the search with decency and sensitivity and in a manner that affords to the person being searched the degree of privacy and dignity that is consistent with achieving the purpose of the search.
(4) If a person exercises a power to search a person, or searches a person with his or her consent, the person exercising the power must ensure that an inventory of any items seized as a result of the search is prepared promptly and that a copy is given to the person searched.
(5) Nothing in subsection (1)(f) permits a person carrying out a rub-down search under sections 85 to 87 (rub-down search of arrested or detained person) to carry out a more intrusive search than is described in those sections.

Question 18

Section 127

Answer 18

Search warrants to enter and search vehicles

If a search warrant is issued authorising the entry and search of a vehicle, the person executing the warrant may enter any place where the person has reasonable grounds to believe that the vehicle is for the purpose of locating it and searching it.

Question 19

Section 129

Answer 19

Duty to provide information

If an enforcement officer exercises a power to stop a vehicle, he or she must, immediately after stopping the vehicle,—

(a) identify himself or herself to the driver of the vehicle, either by name or unique identifier; and
(b) state the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do so in the circumstances; and
(c) if not in Police uniform, produce evidence of his or her identity if the driver requests proof of identity.

Question 20

Section 131

Answer 20

Identification and notice requirements for person exercising search power (other than remote access search)

(1) A person exercising a search power (other than a remote access search) must,—
(a) before initial entry into or onto the place or vehicle or other thing to be searched,—
(i) announce his or her intention to enter and search the place, vehicle, or other thing under a statutory power; and
(ii) identify himself or herself either by name or by unique identifier; and
(iii) if not in Police uniform, produce evidence of his or her identity; and
(b) before or on initial entry into or onto the place or vehicle, or other thing to be searched, provide the occupier of the place or the person in charge of the vehicle or other thing with—
(i) a copy of the search warrant; or
(ii) if the power is exercised without a warrant, the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do so in the circumstances.

(2) The person exercising the search power is not required to comply with subsection (1) if he or she has reasonable grounds to believe that—
(a) no person is lawfully present in or on the place, vehicle, or other thing to be searched; or
(b) compliance with subsection (1)(a) would—
(i) endanger the safety of any person; or
(ii) prejudice the successful exercise of the entry and search power; or
(iii) prejudice ongoing investigations.

(3) The person exercising the search power may use reasonable force in order to effect entry into or onto the place, vehicle, or other thing if—
(a) subsection (2) applies; or
(b) following a request, the person present refuses entry or does not allow entry within a reasonable time.

(4) If the occupier of a place is not present at any time during the search, or no person is in charge of the vehicle or other thing during the search, the person carrying out the search must,—
(a) on completion of the search, leave a copy of the notice referred to in subsection (5) and a copy of the search warrant (if applicable), in a prominent position at the place, or in or on the vehicle or other thing; or
(b) if this is not reasonably practicable, provide a copy of the notice referred to in subsection (5) and a copy of the search warrant (if applicable), to the occupier of the place or the owner of the vehicle or other thing no later than 7 days after the exercising of the power.

(5) The notice required by subsection (4) is a written notice containing the following particulars:
(a) the date and time of the commencement and completion of the search:
(b) the name or unique identifier of the person who had overall responsibility for that search:
(c) where the power is exercised without a warrant, the name of the enactment under which the search is taking place and the reason for the search under that enactment:
(d) the address of the office to which inquiries should be made:
(e) if nothing is seized, the fact that nothing was seized:
(f) if anything was seized, the fact that seizure occurred and (if an inventory is not provided at the same time under sections 133 to 135) that an inventory of the things seized will be provided to the occupier of the place or person in charge of the vehicle or other thing no later than 7 days after the seizure.

(6) For the purposes of this section and sections 133 to 135,—
(a) the following persons may not be treated as the occupier of the place or the person in charge of a vehicle or other thing:
(i) any person who is under 14 years of age (unless section 95(2) applies to that person):
(ii) any person who the person executing the warrant has reasonable grounds to believe is not the occupier of the place or person in charge of the vehicle or other thing:
(b) every reference to a copy of the authority referred to in subsection (1)(b) means, in a case where a search is undertaken without a search warrant, written advice about the enactment that authorises the search.

(7) Subsections (4) and (5) are subject to sections 134 and 135.
(8) This section does not apply to a remote access search.
(9) For the purposes of this section, search includes an entry under section 7 or 8.