Search and Surveillance Flashcards
What is Section 5 - The purpose of the act?
The purpose of the act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences that is consistent with human rights by:
- Modernising the law of search
- 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
How to comply with the act?
- Ensure it has a lawful authority to conduct such activities
- Conduct risk assessments when planning the use of the power
- Only seize what Police are lawfully entitled to seize
- Provide appropriate announcements and ID
- Satisfy requirements detailed in the act
What is RGTS?
Reasonable grounds to suspect is having a sound basis for suspecting that a situation or circumstance exists
Example: You have RGTS that an offence against MODA 75 has been, or is being committed, in respect of that controlled drug
What is RGTB?
Reasonable grounds to believe is having a sound basis for believing that a situation or circumstance exists
Example: You have RGTB that a person is in possession of a controlled drug
What is lawful and reasonable when it comes to searches?
A lawful search is:
- With a search warrant
- Under a warrantless search power
- With the person’s consent
A reasonable search complies with S12 of NZBOR Act and considers factors such as:
- The nature of the search
- How intrusive the search is
- Where and when the search takes place
What is practicable in the circumstances for a SW - list 4 things
- Is there time to gain approval
- Can the scene be secured
- Are reasonable resources available
- Is the evidential material at risk
- Location of the search and who may be present
Why use a search warrant?
- Ensures judicial oversight
- Provides greater protection for Police and public
- Requires recording and reporting results
Before conducting a search by consent what four reasons must you consider?
- 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
Undertaking a consent search - key points
- Before conducting a consent search you must advise the reason for the proposed search and they may consent or refuse the search
- A person under 14 is unable to consent unless they are driving without an older person with authority to consent
- You do not have to report a consensual search
What is evidential material?
Evidential material in relation to an offence means evidence of the offence, or any other item , tangible or intangible that is of relevance to the investigation of the offence
What is CADD and give examples of each
Concealed - By burying or hiding items in another place or removing items
Altered - By changing or removing serial numbers from stolen property in an attempt to disguise it
Damaged - By cutting out the firewall of a stolen car to remove an identifying feature
Destroyed - By consuming food, alcohol or drugs or burning clothing
Obligations - I.I.R.N. - S131
What does I.I.R.N stand for?
Identify yourself by name or QID
Announce your intention to enter to search
State the name of the act
Give notice by providing a copy of the search warrant
BOR detained people
Obligations - I.I.R.N. - S131
Reason
If you are using a warrantless search power
you must state the reason for your search.
You must also
- Provide a copy of the search warrant or a warrantless search notice and provide an inventory
- Report your use of certain powers (S169)
- Consider privilege (S136 - 147)
Obligations - I.I.R.N. - S131
Notice
It includes more than explaining why you are doing something - it must be in writing
SW - Provide a copy
WS - State the name of the act and reason unless impracticable - use POL1275 to comply
When do you not have to comply with I.I.R.N?
When you have RGTB that no one is present or on initial entry:
- Endanger any persons safety
- Prejudice the successful use of the entry and search power
- Prejudice on-going investigation
When can you use of force?
- You may use reasonable force to enter if the person refuses entry or does not allow entry in a reasonable time
- You may use reasonable force to enter if no one is present - must give notice and inventory within 7 days
What does S110 authorise you to do? - Power to search place, vehicle or other thing
- Enter and search place, vehicle or thing
- Search any item or items found
- Use reasonable force in respect of any property
- Seize anything that is the subject
- Request assistance with entry and search
- Bring and use any equipment found
- Bring and use a trained law enforcement dog
- Copy any document
- Access a computer system
- Copy intangible material eg PC data
- Take photographs and video
What if your search is impeded? - S116
RGTB person hinders or obstructs you can:
- Exclude that person from the place, vehicle, thing
- Give any reasonable direction to that person
What are your additional powers? S116, 118, 119, 120
S116 - Secure a place, vehicle or thing and exclude any person
S118 - Detain people to determine their connection between the place and the object of the search
S119 - Search people if RGTB evidential material on them or RGTS possession of dangerous item that may pose a threat
S120 - Fresh pursuit with RGTB that relevant evidential material on that person then enter any place - apprehend person -search person or vehicle
Special rules for searching people
Any search you undertake must be conducted with decency and sensitivity, a degree of privacy and dignity that is consistent with achieving the purpose of the search
You may also seize any item that may be lawfully seized S125(1)(j)
Detained person tries to leave/ person arrives at search
If person attempts to leave - use reasonable force to detain them to be searched (S118(4))
If person arrives - under S118 you may:
- Exclude that person if you have RGTB they will hinder or obstruct
- Detain that person to determine connection between them and the object of the search
- Search the person if you have RGTB they have evidential material on them
- Search that person if you have RGTS they have dangerous item on them that poses a threat to safety
Privileged material
Holders of particular information can refuse unless the information is made, received, compiled or prepared for a dishonest purpose or aid any person to commit an offence.
Includes material gained through: Legal advisers Ministers of religion Medical practitioners Clinical psychologists Informers Journalists
NOT ACCOUNTANTS!!!
Privileged material - practical procedures
You must:
- Ensure that the person or their representative is present
- Give the person a reasonable opportunity to claim privilege
You must complete a POL268 listing all the documents seized and show this to the person to check the accuracy
If RGTB a document is privileged then you must provide an opportunity for the person to claim privilege
S21 NZBOR Act 1990
Everyone has the right to privacy in their own home and the right to refuse entry
Entering without invitation is an invasion of privacy
A valid search warrant provides legal authority to enter a person’s property, vehicle or thing to search and seize EM
Search warrant procedure
- Gain prior approval
- Gain online approval
- Gain Issuing Officer authorisation
- Plan and brief search warrant execution
- Execute search warrant
- Report outcomes
- File investigation reports
What is practicable in the circumstances when considering application for search warrant?
- Apply for a search warrant orally
- Apply for a search warrant without approaching an issuing officer in person (by phone)
- Secure a scene while you apply for a search warrant S117
Before making an online application
You must be sure there are:
- RGTS that an imprisonable offence will be, is being or has been committed
- RGTB that the search will find evidential material
Have checked the target/s for previous SW applications/outcomes
Have assessed the risks
Have obtained initial approval from a supervisor - Sgt. and above
Risk assessments
Risks must be identified, assessed and considered in planning how you execute
A Planned Action Risk Assessment and CARD prompt must be completed to cover TENR
Example:
Children - wait till school hours
Guns - use AOS
Minimise risk
Section 117
If a search warrant is about to be made or has been made and you are awaiting approval and you have RGTB that evidential material may be CADD you may:
- Enter and secure a place, vehicle or thing
- Secure any item found there
- Direct any person to assist with entry and securing place, vehicle or thing
Arrive at an address and realise the address is wrong you can enter and secure the address until warrant has been ammended.
S117 is NOT a search power.
May be exercised until:
- 6 hours has expired from when power was started
- The SW is available for execution
- The SW is refused
Who can issue a search warrant?
Issuing officers are the only people who may issue a search warrant.
An issuing officer may be a DC or a HC Judge
Or any person authorised by the Attorney General such as: Justice of the peace Community magistrate Registrar Deputy registrar
When will a search warrant be authorised?
When an IO is satisfied the SW clearly shows RGTS an imprisonable offence will be, is being or has been committed ans RGTB that the search will find evidential material. The IO must be personally satisfied.
An IO may put restrictions on a SW such as:
- Restricting the time when the search can reasonably be executed
- Requiring the occupier or person to provide reasonable assistance to the officer executing the SW
- Requiring a report on the SW within a specific time
What happens if the SW is refused?
When the IO refuses you should:
- Record the IO’s reason for refusal
- Consider the issues raised and if possible re-draft the application
- Re-submit the application to the same IO
If the issues cannot be addressed:
- Make further enquiries to support the application
- Consider whether to continue your investigation without the SW
- If the reasons for not signing the SW do not seem justified then submit a report to Legal Services
Who may execute a SW and when? How long for? When do you execute it? When is it executed? How many times?
Who - The person to whom it is directed or any constable
How long for - No more than 14 days from date of issue or no more than 30 days if you have justified why this is necessary and IO is satisfied
When executed - at any time that is reasonable in the circumstances or at a restricted time required by the IO
When is it executed - When you or anyone assisting you have seized the evidential material or leave the place and do not return within 4 hours
How many times - once unless more than one execution is applied for, you must detail the reasons for the multiple entries
Planning searches and assessing risk
Planned Action Risk Assessment and CARD prompt
Risk assessments must be on-going and in preparing a SW 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 identifies risks
- Determine how risk management will be communicated in your search warrant briefing
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 give notice
Under S134 the application to postpone should be presented at the time of the search warrant application or before 7 days has passed after the SW execution
A judge can postpone these obligation for up to 12 months
Safety during a SW
The safety of staff executing the search warrant is the primary concern
You may be required to use reasonable force to:
- Enter the place, vehicle or thing (S131)
- Search and seize on property (S110)
- Carry out search of person (S125)
Search warrant briefings
GSMEAC Ground Situation Mission Execution Administration Communication
Briefing - Search warrant execution
Timings Method of entry Roles Responsibilities Obligations on entry Managing suspects Searching for evidential material Recording evidential material Assisting vulnerable material Sequence of events Managing risks and ensuring safety
Holding a search warrant briefing
The person in charge of the briefing should:
- Ensure all required staff are present
- Reinforce verbal information with visual prompts
- Use maps, charts, diagrams, photos
- Provide copies of all important documents
- Ensure all present are clear about their roles and responsibilities
- Identify and advise staff what they can record in their notebooks during the briefing as all entries may be disclosable
The briefer should identify all risks and how to mitigate them. The briefer should identify any issues relating to sensitive or source related info
Rules, obligations and additional powers during search warrant
Rules and obligations S131 - ID and notice requirements S125 - Rules for searching people S110 - Powers incidental to search S169 - Reporting
Additional powers
S116 - Securing a place, vehicle, thing and exclude persons
S118 - Powers of detention incidental to search
S119 - Powers of search by a person who has power of arrest
S121 - Stop vehicles for search
S122 - Moving vehicles for search/safekeeping
S123 - Seizure of items in plain view
S112 - Items of uncertain status may be seized
Obligation - Entry
Before or when you enter you must:
- ID yourself by name or QID
- Provide evidence of ID in not in uniform
- State the name of the act and reason for your search
- Provide a copy of the search warrant
- BOR to detained people
Concerns re list of evidential material sought
If you are concerned that once occupants of the place see the list of evidential material they will alert others you may delay complying with S131 announcement obligations at time of entry
No one home at address to be searched
RGTB that no one at address you do not have to comply with S131 announcement obligations on entry. You must leave a copy of the search warrant and inventory. If not reasonably practicable then must be completed within 7 days
Executing a search warrant for drugs
When executing a SW for drugs you may search any person found in the place or vehicle you are searching (S19). Remember your obligations.
When searching a person you may:
- Detain the person to enable the search to be carried out
- Use force that is reasonable for the purposes of the search
- Search any item that is in the person’s possession or control (clothing, bag etc)
- Seize anything that is the subject of the search or may lawfully be seized
What is S121?
Power to stop a vehicle to search it. Only if you have the authority by way of a SW or a WS.
What is S127?
Enter any place to locate the vehicle to execute the SW if you have RGTB the vehicle is there.
You do not have to specify the location of the vehicle - the vehicle is the target of the SW
Must comply with S131 - obligations
What is S112?
Items of uncertain status
When 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.
Item must be within the scope of the original search
What is S123?
Items in plain view
You may seize any item you find in plain view if you have RGTB that you could have seized the item under a search warrant or other power
Example: You are searching a house for meth and find several new iPhones in plain view. You query the serial numbers which reveals they are stolen. You can seize the iPhones if you have RGTB that the items could have been seized under a search warrant or other search power
What is a production order?
Production orders are orders made under S74 requiring a person or organisation to produce documents to enforcement agencies as evidential material of a specified offence
Duration of a production order
Not exceeding 30 days
Who may apply for a production order?
Any enforcement officer may apply to an issuing officer
You must seek prior approval from you district approver
Matters to consider before granting approval of production order
- The grounds for applying for a production order are met
- The resource benefit of making an application is advantageous to Police
- The information sought does not make unreasonable or unnecessary demands on the telecommunications provider
Production order for media organisation
Obtain approval from a Police Executive member in the case of PNHQ or a District Commander for a district matter
Grounds for applying for a production order
Reasonable grounds to:
- Suspect that an offence has been, is being or will be committed, must be an offence for which you can apply for a search warrant
- Believe that the documents constitute evidential material in respect of the offence and are in the possession or under the control of the person
How to apply for a production order
You must apply for a production order in writing unless impracticable to do so in the circumstances.
In this situation you may make an application orally via telephone or personal appearance or have you application considered without personal appearance or oral communication
Oral applications for a production order
An issuing officer may allow an application to be made orally and excuse the applicant from putting all or part of the application in writing if they are satisfied that:
- Requiring a written application would result in a delay that would compromise the effectiveness of the search and
- Whether the order should be issued can be properly determined on the basis of an oral communication and
- All required information is supplied to them
If the oral application is allowed the issuing officer must record the grounds for the application ASAP and the applicant must complete the application form capturing the information conveyed with 24 hours
Using hearsay evidence
Hearsay evidence can be used to outline the grounds 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
- Whether the information has been confirmed by other means
Post search procedure
- When the execution of the search warrant is justified by the outcome of its execution and damage is suffered as a result, compensation will seldom be paid
- When the execution of the search warrant is not justified by the outcome of its execution but the grounds for execution were sound and damage is suffered as a result, compensation is unlikely to be paid, assessed on a case-by-case basis
- Damage to rental properties, landlords will generally carry the risk in respect of illegal activity taking place on the property
- The method of entry and the manner of search must be reasonable in all circumstances. Where unjustified damage is caused in the execution compensation may be available
- If a constable enters under S14 compensation will seldom be paid
Policy in relation to damage
Police must not incur expenditure or any indication to rectify damage caused in a search warrant
Where a claim arises it is to be directed to the District Commander or National Manager along with a report containing:
- The circumstances
- Grounds for execution
- Damage caused and associated circumstances
- Outcome of the search warrant
- Details regarding the owner
- The nature and basis of the claim
- Steps taken by Police or owner to prevent further loss or damage
Securing premises
Premises must never be left unoccupied and insecure after a forced entry.
Make every attempt to prevent loss by:
- Liaising with the owner or occupier to secure their own property
- At the occupier’s or owner’s request engage a contractor (their cost)
- Attending staff effecting a temporary repair
Surveillance - rights to privacy
Everyone has the right to privacy in their own home, the right to refuse entry and the right to expect that they should be able to conduct lawful activities in private
When Police lawfully enter private premises then you can carry out lawful surveillance by unaided observation, hearing and smell. You can record but can’t enhance (amplify or enlarge) you ability to observe or hear
What is surveillance
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
- Intercepting a private communication
Surveillance risk assessment
Any surveillance work is inherently risky. These risks must be:
- Identified
- Assessed
- Considered in planning before surveillance is executed
What is a surveillance device?
A surveillance device which assists and enhances your normal capabilities to carry out the surveillance
- A visual surveillance device
- An interception device
- A tracking device
What is 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 similar device used to correct subnormal vision of the user to no better than normal vision
S46 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
Exceptions to obtaining a surveillance device warrant
Situations of emergency or urgency - still needs to be reported online
Activities that do not require a warrant
Private lands and goods
SAS Act restricts surveillance activity in places an individual ‘ought reasonably to expect expect’ are private
Non-private premises
Means premises or part of a premises to which members of the public are frequently permitted to have access.
Areas that would be considered private:
Theatres and consulting rooms in hospitals
Office area and staff meal room in railway station
Define private activity
A participant in an activity can reasonably expect the activity is private, if it is carried out in a private premises
‘Ought reasonably to expect’ must be an objective test (what would anyone expect
Private communication
a) Means a communication (whether oral or written, 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 expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so
Trespass and trespass surveillance
Means surveillance that involves trespass onto land or trespass to goods
Restrictions on use of surveillance devices
Any warrant application to use a visual 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 for trespass surveillance occurs is restricted to obtaining evidential material for serious offences
A serious offence is 7 years imprisonment or more
What is 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
Curtilage limitations
S46(e) observation of private activity in the curtilage of private premises and any recording of that observation by means of a visual surveillance device exceeds
(i) 3 hours in any total 24 hour period
(ii) 8 hours in total
A warrant not needed if does not exceed the above
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
A warrant is required to use an interception device
Limitations on use of an interception device
SAS Act limits the use of an interception device to obtaining evidential material for serious offences
- offences punishable by 7 years or more
- identified Arms Act 1983 offences
- identified Psychoactive Subtances Act 2013 offences
Voluntary oral communication
Communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (S47)
There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication
What is a 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
A surveillance device warrant may authorise the use of a tracking device to obtain evidential material of any imprisonable offence
Situations of emergency or urgency - two key ingredients
1) 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
2) Impracticable in the circumstances
Means you need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant
Situations of emergency or urgency
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 or more
- you believe that the use of a device would obtain evidential material in relation to the offence
- an Arms Act 1983 offence or a person is incapable of having proper control or under Domestic Violence Act 1995 a PO or a PSO is in force or grounds to make a PO application
- a drug offence
- a situation likely to cause injury or serious property loss/damage and surveillance is necessary to prevent offending or presenting risk to life and safety and surveillance is a necessary as an emergency response (S14)
Time constraints in emergency situation
The warrantless period for the use of a surveillance device in an emergency situation not exceeding 48 hours
An application must still be made if the surveillance might continue beyond the period
Approval in emergency situation
Approval must be obtained from a Detective Inspector unless:
- the immediacy of the situation does not allow and
- statutory criteria is met and
- an opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time
Requirement to report emergency S60
Must provide a notification to a Judge within 1 month after the date of the last day of any period of 48 hours which the device was used
Period of surveillance device warrant is limited
May be issued for a period of no more than 60 days.
There is no warrant renewal process. To extend the period of 60 days a new application will be required
