Search and surveillance Flashcards
1
Q
Purpose of the Act
A
Section 5 states that the purpose of the Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values by:
• Modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies
• Providing rules that recognise the importance of the rights and entitlements affirmed in other enactments
• Ensuring investigative tools are effective and adequate for law enforcement needs.
2
Q
How to comply to with the act
A
To meet its objectives and obligations when carrying out entries, searches, inspections, productions, examinations, seizures, road blocks and stopping vehicles, Police will:
• ensure it has a lawful authority to conduct such activities and exercise any other incidental power in relation to those activities, including the use of force
• conduct risk assessments when planning the exercise of those powers and take action to mitigate risks to protect the safety of the public and employees carrying out the Act’s powers
• only seize what Police are lawfully entitled to seize
• provide appropriate announcements and identification in the exercise of those powers
• satisfy requirements detailed in the Act (e.g. notice and inventory requirements after search or seizure).
3
Q
RGTS
A
Reasonable grounds to suspect (RGTS) means having a sound basis for suspecting that a situation or circumstance exists.
4
Q
RGTB)
A
Reasonable Grounds to Believe (RGTB) means having a sound basis for believing that a situation or circumstance exists.
5
Q
When you have formed a belief or suspicion you must be able to clearly describe your reasons – your reasonable grounds – for holding the belief or suspicion.
You must …
and beaware that you may be required to
A
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.
6
Q
To undertake a warrantless search of a person for a controlled drug (Search and Surveillance Act section 22) you must:
A
- have RGTS that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and
- have RGTB that a person is in possession of a controlled drug or precursor substance
7
Q
lawful search is a search that is conducted:
A
- with a search warrant, or
- under a warrantless search power, or
- with the person’s consent
8
Q
Under the Search and Surveillance Act a reasonable search is a search that:
A
• 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.
9
Q
A decision that applying for a search warrant is not practicable must be based on RGTB that it is not practicable to apply for a search warrant in the circumstances.
What are some of the circumstances:
A
is there time to gain approval and apply for a search warrant
• can the scene be secured (under section 117)
• are 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
10
Q
Search by consent
A
if you do not have grounds to apply for a search warrant or to use a warrantless power, then you may request a search by consent. A consent search is not the most desirable action as there are additional rules that apply to consent searches and these rules must be followed if the search is to be lawful.
11
Q
Why use a search warrant?
A
- Ensures judicial oversight
- Provides greater protection for Police and the public
- Requires recording and reporting of results
12
Q
Undertaking a consent search
A
Before conducting a search by consent, you must advise the person from whom consent is sought:
• of the reason for the proposed search; and
• they may consent or refuse to consent to the search.
13
Q
Can a person under the age of 14 provide consent for search
A
A person under 14 years old is unable to consent to the search 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).
14
Q
Tangible
A
According to the Oxford Dictionary, tangible means something that may be touched.
15
Q
Intangible
A
According to the Oxford Dictionary, intangible means ‘unable to be touched; not having physical presence’.
16
Q
CADD
A
Concealed
• Altered
• Damaged
• Destroyed
17
Q
Obligation: Identification
A
Section 131:
• identify yourself by name or by unique identifier (QID)
• announce your intention to enter and search
• state the name of the Act
• give notice by providing a copy of the search warrant
• Remember that when you have detained a person for the purpose of a search you must caution them (Bill of Rights).
18
Q
If you are using a warrantless search power you must state the reason for your search.
You must also:
A
provide a copy of the search warrant or a warrantless search notice to occupier (POL 1275) and provide an inventory of items seized.
• report your use of certain powers – (section 169)
• consider privilege – (sections 136 – 147)
19
Q
Exceptions to identification and notice
A
You are not required to comply with identification, intention and notice requirements on initial entry if you have RGTB that no one is present.
Also, you do not have to comply with the requirements on initial entry if you have RGTB this would:
• endanger any person’s safety
• prejudice the successful use of the entry and search power
• prejudice on-going investigations
20
Q
What if a person refuses entry
A
When you are executing a search warrant or a warrantless power of search of a place, vehicle or other thing you may use reasonable force to enter if the person refuses entry or does not allow entry within a reasonable time following a request.
21
Q
What if there is no one at the place where the search is to be conducted
A
You may use reasonable force to enter the place, vehicle or other thing to be searched if you have reasonable grounds to believe that no one is lawfully present.
If the occupier of the place or the person in charge of the vehicle is not there when you search, you must leave a copy of the search warrant or a POL 1275 search notice to occupier and an inventory of any material seized (POL268).
This must be as soon as possible after the search and must be provided within 7 days of completion of the search.
Search
22
Q
Power to search a place, vehicle or other thing
A
Section 110 authorises you to:
• enter and search the place, vehicle or other thing, that you are authorised to enter and search
• search any item or items found in that place, vehicle or thing (if reasonable)
• use reasonable force in respect of any property for the purpose of carrying out the search and 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, vehicle or other thing
• bring and use a trained law enforcement dog and its handler
• copy any document, or part of a document, that may be lawfully seized
• access a computer system or other data storage device
• copy intangible material e.g. computer data
• take photographs, sound and video recordings and drawings
23
Q
What if your search is impeded
A
If your search is impeded by any person or if you have RGTB that any person would obstruct or hinder your ability to search, then you could use section 116 to:
• 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
24
Q
Additional powers
A
Additional powers are available that you can use with your original search power –whether warrantless or warranted.
Section 116
You can secure a place, vehicle or other thing to be searched and exclude any person from there.
Section 118
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.
Section 119
• 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.
25
Section 120
If 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.
26
Special rules for searching people
You can search any item that the person is wearing, carrying, has in their physical possession or immediate control (section 125(1)(i)).
Any search you undertake must be conducted with decency and sensitivity. It must also be conducted 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.
You can then seize any item that the person is wearing, carrying or is in their immediate possession if that is the item you are searching for (section 125(1)(j)).
You may also seize any item that may be lawfully seized even if it was not the subject of your search. (section 125(1)(j)). Remember to promptly provide an inventory of these items on the POL268 form.
27
Detained person tries to leave / person arrives at search place
If the person who is detained for the search tries to leave the place or vehicle you can use reasonable force to detain the person to be searched (section 118(4)).
If someone else arrives at the place or vehicle and starts talking to the person you have detained under section 118 depending on the circumstances you may:
• exclude that person from the search scene if you have RGTB the person will obstruct or hinder your powers (section 116(1)(b)).
• detain that person to determine if there is any connection between them and the object of your search (section 118(1)).
• search that person if you have RGTB that they may have evidential material on them (section 119(1)).
• search that person if you have RGTS that they may have a dangerous item that poses a threat to safety and you believe you need to act immediately to address that threat (section 119(2)(a) and (b)).
28
Privileged material
Privilege allows the holders of particular information to refuse to disclose this information. This information is recognised as ‘privileged’ under the Search and Surveillance Act.
No privilege applies if the information is made, received, compiled or prepared for a dishonest purpose or to enable or aid any person to commit an offence.
Recognised privileged material includes material gained through communication with:
• legal advisers
• ministers of religion
• medical practitioners
• clinical psychologists
• informers (informants)
• journalists
29
Privilege – practical procedures
There are set procedures when a search involves privileged material held by a specified person.
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.
As soon as practicable after being given the opportunity that person must provide you with a list of the things (such as documents) which they claim are privileged.
You must complete a POL268 listing all documents seized and show this to the person present and invite them to check the accuracy of the inventory. You must leave a copy with them.
Be aware that the person may make a copy of any document before you seize it, and they may object to the seizure of any document.
If you are searching (with or without a search warrant) and have RGTB that anything discovered during the search may be privileged, then you must provide the person an opportunity to claim privilege.
If you receive or are expecting to receive a claim of privilege secure the thing subject to privilege but do not continue to search or examine it. You should not undertake any other investigations in reliance on it unless no claim of privilege is made, or a claim is withdrawn, or the search is in accordance with the directions of the court determining the claim of privilege.
30
Search warrant process overview
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1
Gain prior approval
2
Gain online approval
3
Gain Issuing Officer authorisation
4
Plan and brief search warrant execution
5
Execute search warrant
6
Report outcomes
7
File investigation records
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31
Practicable in the circumstances?
When considering whether applying for a search warrant is practicable, remember that in certain circumstances, with supervisor approval, you can:
• apply for a search warrant orally
• apply for a search warrant without approaching an issuing officer in person (by using the phone)
• secure a scene while you apply for a search warrant for a maximum period of 6 hours (section 117).
32
Before making an on-line application
Before commencing to make an application for a search warrant, you must:
1. Be sure that there are:
• RGTS that an offence punishable by imprisonment has been, will be, is being, or is about to be committed, and
• RGTB that the search will find evidential material in respect of the offence in the place, vehicle, other thing or facility.
2. Have checked the target/s history in NIA for other search warrant applications / outcomes.
3. Have assessed the risks associated with executing the search warrant.
4. Have obtained initial approval from a supervisor at or above the rank of sergeant to proceed with the on-line application.
33
Search warrant risk assessment
Any search is inherently risky. These risks must be:
• identified
• assessed
• considered in planning how you execute the search warrant
The risks must be assessed before the application is approved and again before a search warrant is executed.
A Planned Action Risk Assessment and CARD prompt must be completed and TENR applied to assess:
• threat
• exposure
• response (measures to reduce risk)
• necessity
34
Special power – Section 117
Section 117 offers a special power when a search warrant application is pending.
If a search warrant application is about to be made or has been made and you are waiting to hear if it has been authorised, and you have RGTB that evidential material may be CADD or removed before the search warrant can be 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.
35
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.
36
Who can issue a search warrant?
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Issuing Officers are the only people who may issue a search warrant.
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
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37
An Issuing Officer may authorise a search warrant for a place, vehicle, thing or facility, if they are satisfied that the search warrant application clearly shows the:
RGTS an offence punishable by imprisonment has been, will be or is about to be committed, and
• RGTB that the search will find evidential material in respect of the offence in the place, vehicle or other thing.
38
An Issuing Officer may put restrictions on a search warrant, including:
restricting the time when the search warrant can reasonably be executed
• requiring the occupier or person in charge of a place to provide reasonable assistance to the officer executing the search warrant
• requiring a report on the search warrant within a specified time
39
When the Issuing Officer does not sign the search warrant application you should:
* record the Issuing Officers reasons for refusing to sign
* 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
40
If 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 for not signing the search warrant do not seem justified, submit a report to Legal Services for direction
41
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When is a search warrant considered executed?
When you (or anyone assisting yo
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* 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.
42
How often can a search warrant be executed?
* once, unless
* more than one execution is applied for, justified and authorised in the search warrant. You must detail the reason for the multiple entries.
43
Planning searches and assessing risk
you must:
• review and re-assess the identified risks
• work with others to identify and consider any further risks
• plan how to manage and minimise any identified risks
• determine how risk management will be communicated in your search warrant briefing
44
Application to postpone compliance with notice obligations
If providing a copy of the search warrant or inventory would:
• endanger the safety of any person, or
• prejudice on-going investigations
you may apply to a judge to postpone your obligation to provide a copy of the search warrant.
45
What is Section 134 of the act
An application to postpone is made under section 134 of the Act and 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
A Judge can also postpone these obligations for a period not exceeding 12 months. This would apply to a long term investigation.
46
Safety during search warrant execution
The safety of staff executing a search warrant (and of any other people who may be present at the target) is a primary concern.
When executing a search warrant you may be required to use reasonable force to:
• enter the place, vehicle or other thing (section 131)
• search (on property only) and seize (section 110)
• carry out a search of a person (section 125)
47
Ground
location to be searched
• address
• neighbours
48
Situation
reason for seeking the search warrant
| • background on any suspect(s)
49
Mission
address
• suspect(s)
• specific evidential material sought
50
Execution
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timings
• method of entry
• roles – O/C Scene, O/C Exhibits etc
• responsibilities
• obligations on entry
• managing suspects
• searching for evidential material
• recording evidential material
• assisting vulnerable people
• sequence of events
• managing risks and ensuring safety
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51
Administration
travel to and from the place to be searched under warrant
• timing of the search warrant execution
• recording of evidential material seized
52
Communication
cell-phone numbers and radio channels
• before executing the search warrant
• during execution of the search warrant
• debrief
53
Holding a search warrant briefing
The person in charge of the search warrant briefing should:
• ensure all required staff are 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 their roles and responsibilities
• identify and advise staff of what they can record in their notebooks during the briefing as all entries may be disclosable
The briefer should also clearly identify all risks and how to mitigate them. The briefer should also identify any issues relating to sensitive or source (CHIS) related information.
54
Rules and obligations when executing a SW
identification and notice requirements when searching places, vehicles and other things (section 131)
• the rules for searching people (section 125)
• powers incidental to search (section 110)
• reporting (section 169)
55
Additional powers when executing a SW
securing a place, vehicle or other thing to be searched and excluding any person from there (section 116)
• powers of detention incidental to search of places or vehicles (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)
56
Obligation –entry
Before or when you enter a place or vehicle to execute a search warrant you must:
• identify yourself by name or unique identifier (eg: QID)
• provide evidence of identity if not in uniform
• state the name of the Act and reason for your search
• announce your intention to enter and search
• provide a copy of the search warrant
Where occupants are detained for the purpose of search you must advise them of the caution (Bill of Rights).
57
List of evidential material sought
If you are concerned that once the occupants of the place to be searched see the list of evidential material sought attached to your search warrant they will alert others to your investigation you may delay complying with the section 131 announcement obligations at the time of entry.
58
No one is home at the address to be searched
If you have RGTB that no one is at the address to be searched you do not have to comply with the section 131 announcement obligations on entry. You must leave a copy of the search warrant and an inventory of any items seized. If not reasonably practicable, then this action must be completed within 7 days of the search warrant being executed.
59
Executing a search warrant for drugs
When you are executing a search warrant for drugs (where the offence specified in the application was an offence against the Misuse of Drugs Act 1975) you may search any person found in the place or vehicle you are searching (section 19).
60
Stopping a vehicle for the purposes of search
Section 121 provides the power to stop a vehicle if you intend to search it.
You may use section 121 to stop a vehicle if you have authority to search the vehicle by:
• executing a search warrant or
• using a warrantless power
61
Executing a search warrant for a vehicle
Section 127 allows you to enter any place:
• to locate the vehicle to execute the search warrant if
• you have RGTB that the vehicle is there.
You are not required to specify a place for the vehicle to be located in the search warrant application. Your search warrant target is the vehicle.
However, you must comply with the section 131 obligations when entering the place.
62
Items of uncertain status and in plain view
The Search and Surveillance Act provides powers for dealing with other items that you may find in the lawful search of a person, place or vehicle or if you are lawfully in any place or vehicle:
• removal of items of uncertain status in certain circumstances (section 112)
• seizure of items in plain view (section 123)
63
Items of uncertain status (section 112)
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
64
Items in plain view (section 123)
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.
65
Production Order versus Search Warrant
You have the choice whether a standard search warrant or production order should be sought for use in any given case. While compliance costs are incurred by a business issued with a production order, these costs are offset against the avoidance of the disruption that would otherwise occur by physical entry and search of the premises under a search warrant. Very often production order powers will be less intrusive and involve less cost, than using search warrants as an alternative.
66
Duration of a Production Order
A production order is in force for the period specified in the order (not exceeding 30 days after the date on which the order is made). (Section 76).
67
Who may apply for a Production Order
Any enforcement officer may apply to an issuing officer for a production order. (Section 71(1).
68
Approval to apply
You must seek prior approval from your district approver before making an application directed to a telecommunications provider seeking information such as call associated data, or content
69
Matters to consider before granting approval
Before granting approval to apply for production orders, the district approver must take these matters into account and be satisfied:
• the grounds for applying for a production order are met
• the resource benefit of making an application is advantageous to Police and the investigation (i.e. the use of a production order is an effective investigative tool and the offence(s) under investigation are sufficiently serious to justify the resource)
• 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 (i.e. documents and call associated data coming into the control of the person etc whom the order is against while the order is in force).
70
Approval to apply for Production order for media organisation
If your application relates 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, and
follow the guidance on ‘Search warrants, production orders and examination orders involving media organisations in the Search chapter in the Police Manual.
71
Approval to apply for a Production Order
Where practicable obtain written authority to make an application for a production order from a constable of or above the position level of sergeant where practicable.
72
Grounds for applying for a Production Order
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. (Section 72).
73
How to apply
You must apply for a production order in writing along with a personal appearance before, or communication orally with, the issuing officer unless it is impracticable to do so in the circumstances.
In this situation you may apply to:
• make an application orally e.g. by telephone or personal appearance, or
• have your application considered without a personal appearance or oral communication
All applications for production orders must be made using prescribed forms available in Police Forms > Search and Surveillance > Production Orders
74
Oral applications for a Production Order
An issuing officer may allow an application for a production order to be made orally (e.g. by telephone or by personal appearance) and excuse the applicant from putting all or part of the application in writing if satisfied that:
• requiring a written application would result in a 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 an oral communication or personal appearance, and
• all required information is supplied to them (orally, or partly orally and partly in writing). (Section 100 (3))
If an oral application is allowed:
• the issuing officer must record the grounds for the application as soon as practicable
• the applicant must complete the application form capturing the information conveyed to the issuing officer as soon as practicable and in any event within 24 hours, and the order
75
Using hearsay evidence
Hearsay evidence can be used to outline the grounds on which the application is made, if it is highly reliable. Indicate its 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 the past. An appropriate way to say this is: "In the past, Informant A has supplied Police with information that has proved to be reliable."
• whether the information has been confirmed by other means.
76
What is surveillance
Police surveillance is 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
The Search and Surveillance Act 2012 regulates only those surveillance activities undertaken by means of a device. It establishes clear boundaries for the lawful use of a surveillance device:
• where trespass is not involved
• where trespass is involved
• where warrantless powers exist
77
Surveillance risk assessment
Any surveillance work (with or without warrant) is inherently risky.
These risks must be:
• identified
• assessed
• considered in planning before surveillance is executed
Apply TENR to assess:
• threat
• exposure
• necessity
• response (measures to reduce risk)
Thorough risk assessment is a component of the surveillance device warrant application process and must be repeated before a surveillance device warrant is executed.
78
What is a surveillance device?
A surveillance device is a device which assists and enhances your normal capabilities to carry out the surveillance.
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
79
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 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.
Section 46 Activities for which surveillance device warrant required
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.
Some exceptions apply to the requirement to obtain a surveillance device warrant for the use of a visual surveillance device.
These are:
• situations of emergency or urgency (although use of a surveillance device in these situations must still be reported in the on-line system); and
• activities that do not require a warrant
80
Private lands and goods
Where surveillance with a surveillance device is concerned, the Search and Surveillance Act restricts surveillance activity in places an individual ‘ought reasonably to expect’ are private.
Those places include land (in private ownership) and any private premises on that land, and ‘goods’.
Goods generally mean chattels and include vehicles and other tangible belongings.
81
Private Premise
Private premises means a private dwellinghouse, a marae, and any other
premises that are not within the definition of non-private premises.
82
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.
Note: Not all parts of hospitals, bus stations etc are non-private premises.
Areas that would be considered as private are:
• hospitals – theatres, consulting rooms
• railway station – office area , staff meal room
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Private activity
The definition of private activity acknowledges fundamental human rights.
A participant in an activity can reasonably expect the activity is private, if it is
carried out in private premises.
But – ‘ought reasonably to expect’ must be an objective test i.e. what any
person would expect.
Where private activities occur is of key importance.
Consider – would you expect your participation in the following activities to
be private?
• sleeping in a hotel room
• planting in your back garden
• trying on clothes in a changing room
Be aware – private activities may occur in places that do not fit the definition
of private premises.
84
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.
Note that any person can reasonably expect their communication to be private
when it occurs in circumstances where they have the right to expect it will not
be intercepted or recorded.
Where reasonable expectations of privacy are interfered with or intruded upon
by the use of an interception device, a surveillance device warrant is required
85
Trespass and
trespass
surveillance
Trespass surveillance means –
Surveillance that involves trespass onto land or trespass to goods.
Trespass surveillance occurs the moment an enforcement officer steps onto
private property without consent.
For surveillance purposes, if you do not have consent to enter onto private
property, then you are trespassing.
Restrictions on use of surveillance devices
Any warrant application to use a visual surveillance device for trespass
surveillance will only be authorised for obtaining evidential material for
serious offences.
Any warrant application to use an interception device, whether or not a
trespass surveillance occurs, is restricted to obtaining evidential material for
serious offences only.
(A serious offence is an offence punishable by 7 years imprisonment or
more).
Section 46 – Activities for which surveillance device warrant required
(d) Use of a surveillance device that involves trespass onto private property
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What is
| curtilage?
Curtilage –
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.
Activities that do not require a warrant cover the use of a visual surveillance
device within the curtilage of private property but usage is restricted to time
limitations.
87
Curtilage
| limitations
The legislation sets time limitations on the use of a visual surveillance device
for surveillance activity within the curtilage of private property.
Section 46 – Activities for which surveillance device warrant required
(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 that
observation, for the purposes of a single investigation, or a connected series
of investigations, exceeds –
(i) 3 hours in any total 24-hour period; or
(ii) 8 hours in total
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Interception
Intercept in relation to a private communication, includes hear, listen to,
record, monitor, acquire or receive the communication either –
• when it is taking place, or
• while it is in transit
89
Interception
| device
Interception device –
(a) means any electronic, mechanical, electromagnetic, optical or electrooptical 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.
Note: A surveillance device warrant is required to use an interception device
to intercept a private communication.
Section 46 – Activities for which surveillance device warrant required
(a) Use of an interception device to intercept private communications
90
Limitations on
use of an
interception
device
The Search and Surveillance Act limits the use of an interception device, to
intercept a private communication, whether or not that communication occurs
in private or non- private premises, to obtaining evidential material for
serious offences only.
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
91
Voluntary oral
| communication
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).
There is no requirement to obtain a surveillance device warrant to intercept
and record a voluntary oral communication.
92
What is a
tracking
device?
Tracking device –
(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.
Although the use of a tracking device is considered to be less intrusive to an
individual’s privacy (as it only reveals the location of a thing or a person in
possession of that thing), the use of a tracking device requires a surveillance
device warrant.
A surveillance device warrant may authorise the use of a tracking device to
obtain evidential material for the investigation of any offence punishable by
imprisonment.
Section 46 – Activities for which surveillance device warrant required
(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.
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Specialist
| support
Tracking devices may only be used with the assistance of specialist squads.
Covert surveillance using sophisticated electronic surveillance devices must
be undertaken only by specialist trained officers.
Specialist trained staff and surveillance squads are established at a number of
main centres and their services are available to districts on request.
Advice about when and how to request the assistance of a surveillance squad
is found in the Surveillance chapter of the Police Manual.
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Situations of
emergency or
urgency
A surveillance device warrant need not be obtained for use of surveillance
devices in some situations of emergency or urgency.
Section 48 acknowledges that in certain situations, police may need to act
immediately without warrant to use any 1 or more surveillance devices.
Two key ingredients exist for any situation to be recognised as one of
emergency or urgency.
Ingredient – ‘entitled to apply’
Means – you would be entitled to make an application for a surveillance
device warrant as the situation is one of serious criminal activity.
Ingredient – ‘impracticable in the circumstances’
Means – you need to use a device urgently as it is not immediately
practicable to obtain a surveillance device warrant.
Surveillance without warrant in 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:
• an Arms Act 1983 offence
− or a person by reason of their physical or mental condition (however
caused) is incapable of having proper control of the arms; or may kill
or cause bodily injury to any person;
− or that under the Domestic Violence Act 1995 a protection order or a
police safety order is in force against the person;
− or there are grounds to make an application against him or her for a
protection order.
• a 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)
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Time
| constraints
Limitations on use of surveillance device without warrant in an
emergency situation.
In situations of emergency or urgency police must be able to act with
immediacy and with adequate tools to be able to fulfil their duties and
obligations under the Policing Act 2008.
However, the warrantless period for the use of a surveillance device in a
situation of emergency or urgency is a period not exceeding 48 hours.
An application for a surveillance device warrant must still be made if the
surveillance might continue beyond the period within which it is practicable
to obtain a warrant.
The warrantless period allows police flexibility to act. The time restriction
that applies before a warrant application must be made ensures proper
oversight and reporting is maintained.
Approval to use an interception device in an emergency situation should be
obtained from a Detective Inspector unless:
• the immediacy of the situation does not allow for prior planning and
approval from a Detective Inspector in consultation with Legal Services;
and
• statutory criteria is met; and
• an opportunity arises to obtain evidential material that would otherwise be
lost if not taken at the time.
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Requirement to
report – section
60
Report on use of surveillance device in situation of urgency or emergency.
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 after the date of the last day of any period of 48 hours
or less over which the surveillance device was used.
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Period of
surveillance
device warrant
is limited
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.
There is no warrant renewal procedure under the Act. To extend the period of
60 days or the lesser period for which the warrant is valid, a new application
for a surveillance device warrant will be required.
