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S&S > Search and surveillance > Flashcards

Search and surveillance Flashcards

1
Q

RGTS

A

Reasonable grounds to suspect means having a sound basis for suspecting that a situation or circumstance exist.
- you enter a house or vehicle because you suspect an offence has been, is being or will be committed.

Example:
Reliable source tells you John has bought meth. Source says he has now left house to sell it.
To undertake warrantless search of person for drugs you must:
Have RGTS an offence against MODA 1975 has is or will be committed and
Have RGTB that person is in possession of controlled drug

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2
Q

RGTB

A

Reasonable grounds to believe means having a sound basis for believing that a situation or circumstance exist.

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

Example:
Reliable source tells you John has bought meth. Source says he has now left house to sell it.
To undertake warrantless search of person for drugs you must:
Have RGTS an offence against MODA 1975 has is or will be committed and
Have RGTB that person is in possession of controlled drug

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3
Q

Lawful search

A

Search conducted:

  • With a search warrant
  • under a warrantless search power or
  • with the persons consent
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4
Q

Reasonable search

A

Complied with section 21 of the NZ Bill or rights act and considers factors such as:

  • the nature of search
  • how intrusive search is
  • where and when the search takes place.
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5
Q

Practicable in the circumstances (search)

A

Before considering any search you must think about whether applying for a search warrant is practicable in the circumstances

If it is practicable to do so then you SHOULD APPLY for a search warrant even if warrantless power is available.
Otherwise must have RGTB it’s not practicable to apply for SW
Consider:
•is there time to apply
•can the scene be secured
•is the evidential material at risk

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6
Q

CONSENT search advice

A
  • give the reason for the search and

- they may consent or refuse to consent to the search can withdraw consent at any time.

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7
Q

What if they withdraw consent?

A

Stop search immediately, unless you can invoke a warrantless search power to continue the search.

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8
Q

14 year old and consent

A

14yr old is unable to consent to the search of a place vehicle or thing unless they are found driving with no passenger of or over 14 years of age with authority to consent to the vehicles search.

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9
Q

Must have reason for consent search

A
  • To prevent offence
  • Investigate whether offence occurred
  • to protect life or property
  • to prevent injury or harm
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10
Q

Evidential Material definition

A

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

Intangible things: email address, internet data storage facility

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11
Q

Obligation at SW

131

A

When searching a place, vehicle or other thing your obligations cover IDENTIFICATION, INTENTION, REASON and NOTICE

identify by name or QID
Announce intention to enter and search
State name of act
Give notice by providing copy of SW

R - reason
A - Act
I - intention
N - name and notice

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12
Q

Exceptions to identification and notice

A

Not required to comply with ID, intention and notice requirements on entry of RGTB no one is present or if RGTB

  • would endanger any persons safety
  • prejudice the successful use of the entry and search power
  • prejudice on-going investigations.
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13
Q

If person refuses entry

A

You may use reasonable force to enter if the person refuses entry or does not allow entry within a reasonable time frame following a request.

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14
Q

No one at place where search to be conducted

A

You may use reasonable force to enter place, vehicle or other thing to be searched if you have RGTB that no one is lawfully present.

You must leave a copy of SW or a Pol 1275 search notice to occupier and an inventory of anything seized.
As soon as possible but within 7 days.

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15
Q

Section 110 authorises you to:

A
  • enter and search 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
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16
Q

Section 116

A

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

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17
Q

Section 118

A

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

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18
Q

Section 120

A

If in FRESH PURSUIT and with RGTB that relevant evidential material is still on the person, you have power to ENTER any place to APPREHEND the person and search person or vehicle.

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19
Q

AWOCA

A
  • Ask - ask to comply with search
  • why - give reasons ie intention to search
  • options - allow search or be arrested for obstruction
  • confirm - confirm person understands options
  • Action - take action, arrest for obstruction
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20
Q

Example fresh pursuit

A

Person to be searched jumps in car drives away you may pursue car if safe action and complies with fleeing driver

Person being pursued drives onto driveway and enters house may enter house if in fresh pursuit and MUST have RGTB Evidential material is still in vehicle or on person

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21
Q

People privileged material applies to

A

Material gained through communication with

  • legal advisers
  • medical practitioners
  • clinical psychologists
  • ministers of religion
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22
Q

If privilege claimed

A

If you receive or expect 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 investigations in reliance on it unless no claim of privilege is made or a claim is withdrawn, or search is in accordance with the directions of the court.

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23
Q

SW Practicable in circumstances

A

When considering whether applying for SW is practicable remember you can:

  • apply for warrant orally
  • apply for sw without approaching an issuing officer (by using phone)
  • secure a scene while you apply for SW for maximum 6 hours (s117)
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24
Q

Vulnerable people during SW

A

Children are considered vulnerable people you need to plan to keep them safe and minimise harm

Options include
- search during school hours when less likely to be home
Or
- allocate someone to search for children and remove them to safe place

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25
Q

117

A

SW about to be made or has been made and RGTB evidential material may be CADD may:

  • enter and secure place vehicle or other thing
  • secure any item found and
  • direct any person to assist with entry and securing place vehicle or items

Could also be used if SW address is incorrect until it is amended.

NOT A SEARCH POWER

MAY BE EXERCISED UNTIL either the:

  • expiry of 6 hours
  • warrant is available
  • warrant application refused
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26
Q

Restrictions on SW from issuing officer

A

Issuing officer may put restrictions on SW including

  • restricting time it can be reasonably executed
  • requiring occupier or person in charge of place to provide reasonable assistance
  • requiring a report on SW within a specified time
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27
Q

When SW refused

A
  • record reason why issuing officer refuses to sign
  • consider issues raised and if possible re draft the application addressing those issues
  • re-submit to same issuing officer

If issues not able to be addressed

  • make further Enquiries to support application
  • consider whether to continue investigating without search
  • if it does not seem justified submit a report to legal services
28
Q

When can SW be executed?

A

Any time reasonable under circumstances or at a restricted time required by issuing officer as a condition of execution

29
Q

Warrant considered executed

A
  • When you have seized the evidential material in the search warrant or
  • leave the place vehicle or other thing and do not return within 4 hours
30
Q

Planning searches and assessing risk.

Risk assessment must be on-going and you must

A
  • review and re-assess 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 SW briefing
31
Q

Application to postpone compliance with notice obligations

A

If providing a copy of SW or inventory would
- endanger safety of any person or
- prejudice ongoing investigations
You may apply to a judge to postpone your obligation to provide copy of SW

Should be presented to judge at time of SW application or before 7 days passed after execution of SW

Example:
Gang headquarters for EM relating to meth manufacturing

Dangerous to those involved to comply with notice obligations can apply to a judge.

32
Q

GSMEAC

A
  • Ground - location
  • Situation - reason for SW
  • Mission - address, suspects, EM sought
  • Execution - MOE, roles, responsibilities, timings
  • Administration- travel to and from, recording EM seized
  • Communication - radio channels, briefing, debrief
33
Q

131 va 125

A

131 - RAIN is for places vehicles other things

125 - RAN is for people

34
Q

4 things the act permits you to do when searching person for drugs

A
  • DETAIN the person to enable search to be carried out (for as long as reasonably necessary)
  • USE FORCE that is reasonable for the purposes of the search.
  • SEARCH ANY ITEM that person is wearing, carrying or in their physical possession or immediate control
  • SEIZE anything carried by or in their possession or control if it subject of search or may lawfully be seized
35
Q

Voluntary oral communication

A

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

No requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.

Example:
CHIS agrees to wear a device that will record his telephone conversation with gang leader who is under investigation for series of armed robberies

36
Q

Duration of time for a PO

A

A PO is in force for the period specified in the order (not exceeding 30 days after the date the order is made)

37
Q

3 Surveillance Devices

A
  • visual surveillance device
  • interception device
  • tracking device

A surveillance device is a device which assists and enhances your normal capabilities to carry out the surveillance.

38
Q

Private communication

A

Means a communication 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

Does not include a communication a communication occurring in circumstances in which any party to the communication ought to reasonably expect that the communications may be intercepted

39
Q

What type of offence is required in order to use a tracking device?

A

Serious offences only

Punishable by 7 years imprisonment or more

40
Q

Curtilage definition

A

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

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

  • ground between fence, garden, hedge and dwelling.

Curtilage on a suburban house is likely to be defined by a fence line whereas on a farm the house and curtilage will form a small part of the whole property.

41
Q

Items in plain view

A

112 - items of uncertain status

If carrying out a lawful search may remove item for examination to determine if you can seize it lawfully if not practical to examine there
E.g
Drugs that require analysis or large amount of documents.

123 - items in plain view

May seize any item you find in plain view when you are searching if:
- you have RGTB that you could have seized the item under a search warrant or other search power.

E.g looking for person in wardrobe under section 8 and find a bag of cannabis. In plain view so may seize it.

At a 5F and see distinctive clothing which you have RGTB was stolen in a recent burg. As you are lawfully at address may seize as it’s in plain view

42
Q

Who may apply for a PO

A

An enforcement officer may apply to an issuing officer.

43
Q

Matters the district approver considers before granting PO

A
  • grounds for applying are met
  • is an effective investigative tool and the offence under investigation are sufficiently serious to justify resource
  • information sought does not make unreasonable or unnecessary demands on the telecommunications provider
44
Q

How to apply for PO

A
  • in writing along with personal appearance before or communication orally with issuing officer unless impracticable to do so in circumstances.

If so then:

  • make an application orally
  • have application considered without a personal appearance or oral communication
45
Q

PO Oral Application

Exceptions to applying for PO in person

A

Issuing officer will allow if satisfied that:

  • written application would result in a delay and compromise the search
  • the question of whether the order can be issued can properly be determined on the basis of oral communication
  • all required information is supplied to them.

If allowed

  • issuing officer must record grounds for application
  • applicant must complete application form capturing the information within 24 hrs
46
Q

Surveillance risk assessment

A

Risks must be

  • identified
  • assessed
  • considered in planning before surveillance executed
47
Q

What does a production order authorise you to do?

A

Require a person or organisation to produce documents as evidential material of a specified offence.

48
Q

S48 Ingredients

Situations of emergency or urgency

A

ENTITLED TO APPLY - you would be entitled to make an application for a surveillance device warrant as the situation is one of serious criminal activity

IMPRACTICABLE IN THE CIRCUMSTANCES - you need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant

Only permitted when above applies and the offence is

  • punishable by over 14 years imprisonment and
  • you believe use of surveillance device would obtain evidential material
  • an arms act offence
  • drug offence

Or situation likely to cause injury or serious property loss
Presenting risk to life and safety

49
Q

Warrantless period of time for device in urgency or emergency

A

Period not exceeding 48 hours

50
Q

119

A

You can SEARCH PEOPLE found when searching places and vehicle if RGTB that evidential material that is object of search on them

OR

If you have RGTS person is in possession of a dangerous item that poses a threat to safety and you believe immediate action is needed.

51
Q

Interception Device

A

Means any electronic, mechanical, electromagnetic, optical or electro optical instrument, apparatus, equipment or other device that is used or capable of being used to intercept or record a private communication; but

Does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.

52
Q

S46 e

A

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 —

  • 3 hours in any total 24 hour period; or
  • 8 hours in total
53
Q

Surveillance device warrant not required

A

46e
If observation or recording by means of a visual surveillance device does not exceed
- 3 hours in any total 24hr period
- or 8 hours in total

48

  • entitled to apply
  • impracticable in the circumstances
54
Q

What is needed for a drug search of a person?

A

RGTS an offence an offence against MODA 1975 has been, is being, or is about to be committed in respect of that controlled drug or precursor substances

And

Have RGTB that a person is in possession of a controlled drug or precursor substance

55
Q

Trespass Surveillance

A

Means surveillance involving trespass onto land or trespass to goods.

Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent

To apply for warrant to use visual or interception device offence must be punishable by 7 years imprisonment or more.

56
Q

Not practical to get SW or S117

What should you do?

A

Look at search hierarchy

If SW or securing scene under 117 is not practicable in the circumstances there are two options available

  • search using warrantless power of available
  • search by consent

If no sw, warrantless power or consent you cannot search

57
Q

116
117
119

What can you do with people?

A

116 - exclude
117 - direct to assist with securing place, vehicle or other thing and any item
119 - search people found when searching places and vehicles if RGTB EM on person or RGTS person in possession of dangerous item that is a threat and believe you need to immediately deal with it.

58
Q

To meet objectives and obligations when carrying out entries, searches, inspections, productions, examinations, seizures, road blocks and stopping vehicles police will…

A
  • 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 acts 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 and seizure.
59
Q

121

A

May stop a vehicle if you have authority to search the vehicle by

  • executing a SW or
  • using a warrantless power
60
Q

127

A

Allows you to enter any place to
- locate the vehicle to execute SW if
You have RGTB vehicle is there.

61
Q

Private Premises

A

Private premises means a private dwelling house, a Marae and any other premises that are not within the definition of non-private premises.

62
Q

Non-private premises

A

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 areas of hospitals etc are non-private premises ie theatres, staff rooms consulting rooms

63
Q

Tracking device

A

A device that may be used to ascertain by electronic or other means either or both of the following

  • the location of a thing or person
  • whether a thing has been opened, tampered with or in some other way dealt with but
  • 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 for the investigation of any offence punishable by imprisonment.

64
Q

CADD

A
  • conceal - burying or hiding items
  • Alter - changing or removing serial numbers
  • damage - cutting out firewall of a stolen car
  • Destroyed - consuming food, burning clothing
65
Q

Privilege

A

Privilege allows the holders of particular information to refuse to disclose this information.

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.

66
Q

When search involves privilege

A
  • Ensure that the person or their representative is present
  • 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 things which they claim are privileged

You must complete a 268 listing all documents seized and show this to the person present

Be aware 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 have RGTB anything discovered may be privileged then you must provide the person an opportunity to claim privilege.

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