Search and Surveillance Act 2012 Flashcards
What is the purpose of the act?
As per section of 5 of the S + S Act 2012:
Account for advancements / regulations in technology.
Ensure investigations and prosectution of offences are handled in a way which alligns with human rights
Ensure investigation tools are adequate and effective
Modernise the laws are search, seizure, surveillance
Monitor compliance of act
Recognise entitlements, rights/rules of other acts.
How do you comply with the act?
Conduct risk assessments when planning to exercise powers and mitigate risk to protect employees and public.
Ensure lawful authority to conduct such activities and exercise powers.
Only seize what Police are lawfully entitled to seize.
Provide appropriate announcements and identification while exercising powers.
Satisfy requirements detailed in the act (notice and inventory)
DEF: RGTB + Eg.
having a sound basis for believing a situation or circumstances exist
Eg: you enter a house because you believe that EM exists in that house.
REF: RGTS + Eg.
having a sound basis for suspecting a situation or circumstances exist.
Eg: Entering a house because you supect an offence has been, will be or is about to be commited.
When you have formed your belief or suspicion you must be able to clearly describe your reasons… You must?
Record your reasonable grounds for using that power in your notebook. (This is your decision decision log)
you may be required to: report your decisions to use a power and your grounds for using it.
Justify your use of a power in court or in other formal proceedings.
What are considered lawful searches
Search warrants.
Warrentless searches.
Consent searches
What are the factors of a reasonable search?
Complies with section 21 of BORs Act
intrusiveness of search.
Nature of the search.
Where and when the search took place.
When considering whether it is practicable to apply for a search warrant, what should you consider?
E/M at risk?
Location of search?
Reasonable resources?
Scene secured (s117)?
Time to gain approval?
Who may be present?
What are your two other options other than a search warrant?
Warrantless search power.
Consent search
Why is a search warrant preferred?
Ensure judicial oversight.
Provides greater protection for Police and Public.
Requires recording and reporting of results.
What are four reasons for conducting a consent search?
Investigate whether an offence has been committed.
Prevent commission of an offence.
Prevent injury or harm.
Protect life or property.
Before conducting a consent search what must you inform that person of?
The reason for the search
That they may refuse or withdraw consent
Concent searching persons under 14 years
Persons under the age of 14 can not give consent to the search of places or vehicles.
However they may consent to a search of a vehicle if they are found to be driving that vehicle with no persons who can give consent
DEF: E/M
Tangible or intangible evidence of the offence or any other item relevant to the offence
DEF: Tangible
A physical thing
DEF: Intangible
A thing which can not be touched and does not have a physical presence.
DEF: CADD
Concealed
Altered
Disposed
Destroyed
S 131 Obligations
Reason you are searching them
Act in which you are searching them under
Intent of search
Name/ QID/ Provide evidence of ID if not in uniform.
Notice- provide a copy of the search warrant.
Detained? BOR’s
Warrentless search obligations
Consider privilege.
Provide copy of search warrant or warrentless search notice. (POL1275) and Provide inventory list. (s169)
Report powers used. (136-147)
What are the exceptions to identification and notice?
RGTB:
Endanger any persons safety
prejuduce on-going investigation
prejuduce success of the entry and sw
What happens if a person refuses entry?
You may use reasonable force to enter if you are refused entry or if they do not allow entry within a reasonable time frame
What happens if there is no one at home where a search might be conducted?
You may use reasonable force to gain entry if you have RGTB no one is lawfully present.
You must leave:
copy of the SW or POL 1275 search notice.
Inventory list
This must be provided within 7 days after the search
S11o authorises you to do what?
1) Access computer systems/ data storage devices.
2) Bring and use equipment to assist in search.
3) Copy any document/ part of document that may be lawfully seized.
4) Copy intangible data.
5) Enter and search a place, vehicle or thing that you are authorised to enter and search
6) Request assistance in search.
7) Search any item / items found in that place, vehicle or thing (if reasonable)
8) Seize anything that is subject to the SW.
9) Take photographs sound and video recordings/drawings.
10) Use reasonable force in respect of property for the purpose of carrying out the search/lawful seizure.
What does 116 allow you to do relating to impeded searches?
Actually impeded or RGTB obstruction, you may:
Exclude that person from the place, vehicle, thing being searched.
Give any reasonable direction to that person.
Secure that place, vehicle or thing to be searched and exclude any person from there.
What does 118 allow you to do?
You may detain people when searching place and vehicle to determine if they have any connection to the place, vehicle, object of search.
What does s 119 allow you to do?
You can search people found when searching places and vehicle if:
RGTB they have EM on them
OR
RGTS They are in possession of a dangerous item and immediate action is needed to address that threat.
What does 120 allow you to do?
When in fresh pursuit.
RGTB person has EM
Enter an address.
Arrest.
Search for EM on them or in vehicle
AWOCA
Ask- ask them to comply
Why- tell them why
Options- give them options
Confirm- Confirm they understand.
Action- Take action
Three special rules for searching people?
Any searches should be conducted with decency and sensitivity and a degree of privacy.
Seize any item that the person is wearing carrying or in their immediate possession if relevant to search. (125 (1)(j))
Seize any item that may be lawfully seized even if it was not the subject of your search (125 (1) (J)
What are your options when detaining persons arriving or leaving your search?
DETAIN- to determine their connection to your search (118)
EXCLUDE- if RGTB they will obstruct or hinder your search (116)
SEARCH- if RGTB they have EM (119)
SEARCH- RGTS they possess a dangerous item which needs to be immediately addressed (119)
What is Privilege?
Allows the holder of particular infomation to refuse to disclose that information
When does privilge not apply?
Imformation with is compiled, prepared or received for a dishonest purpose or to enable someone to commit an offence
Privileged material may be between?
Clinical psycholgists
Informers
Journalists
Legal advisors
Medical professionals
Ministers of religion
Searching privileged material
You must:
ensure a person or their representative is present when the search is undertaken.
Give person a reasonable opportunity to claim privilege
Complete an inventory listing all documents seized and supply a copy to the person present.
Invite the person to check accuracy.
Allow them to make a copy of any documents seized.
What must a person do if they claim privilege?
As soon as practicable:
provide a list of things/documents which they claim privilege over.
What should you do if Privilege is claimed…?
Secure item.
do not continue to exam/search it.
Do not rely on that document for your investigation unless:
Directed by court.
no claim to privilege is made
privilege is withdrawn.
Key steps in search warrant process?
Prior approval
Online approval
issuing officer authorisation
plan and brief
execute sw
report outcomes
fie investigation records
Before applying for a search warrant you must form what two things?
RGTS imprisonable offence has been/ will be /about to be committed
RGTB EM will be located at address/vehicle/on person
What are three options while considering if a SW is practicable?
With a supervisors approval:
Oral search warrant.
by phone or email.
secure scene under 117 for a period no more than 6 hrs.
What is TENR
Threat.
Exposure
Necessity
Response
S 117
Holding a place while waiting for search warrant
Enter a place or vehicle
secure that place, vehicle or things.
direct any person to assist with entry and securing.
while waiting for a sw
Not a search power.
117(1)
Three reasons that 117 expires
Expiry of 6 hr hold period.
Warrant is available for execution
The warrant is rejected
who can issue SW?
Issuing officers:
-Community magistrate.
-Direct court judge.
-Deputy Registrar.
- High court judge.
-Justice of the peace.
-Registrar.
What restrictions may an issuing officer place on SW?
Restrict time of search
Require the occupier to assist officers executing SW
Enter a report on SW outcome
What should you do if an issuing officer refuses SW?
Record their reasons
Redraft SW Application addressing issues.
Re-submit
If you can not address the issue:
Make further enquires to support SWA
Consider conducting investigation W/O SW
Submit report to legal services if reasons are not justified.
Who may execute SW?
To whom it was directed or any constable.
How often can you execute a SW
Once
Unless
more than one execution is applied for and authorized.
How long do you have to execute a SW
14 days or 30 days if applied for and authorised
When can a sw be executed
At any reasonable time under the circumstances
At a restricted time as directed by the issuing officer
When is a SW considered executed
EM is seized.
Leave the target for a period longer than 4 hours.
You must complete a risk assessment which means:
Review and reassess identified risk
Work with others to identify risk.
Plan how to manage the risk.
Determine how to communicate risk at your briefing
how do you Postpone compliance obligations under 131
An application can be made to the judge at the time of the search warrant application.
before 7 days after SW was executed.
How long can a judge postpone 131 obligations
up to 12 months.
What is GSMEAC
ground.
situation.
Mission.
Execution.
Admin and logistics.
Command and signals
Rules and obligations during searches
Identification and notification requirements (s131)
Rules searching people (125)
Powers incidental to search (110)
Reporting (169)
Additional powers during search?
Items of uncertain status seized (112)
Moving vehicles for search/ safekeeping (122)
Powers of detention (118)
Powers of search by a person who has power of arrest (119)
Securing a place, vehicle, thing to be searched and excluding people from search (116)
Seizure of items in plain view (123)
Stopping vehicles for search (121)
concerned a inventory list will alert others to sought em?
apply to postpone obligations under 131
No one home at the address?
Leave a copy of SW and an inventory of items seized at the completion of SW or no longer that 7 days after
When executing powers of search on a person you may…
Detain the person.
Use reasonable force for purpose of search.
Search any item on them/ in their possession.
Seize anything carried or in their possession if it is subject to the SW or can be lawfully seized.
121
Stop a vehicle if you have authority to search it with
SW
Warrentless power
the person running a SW Breifing should?
Ensure all staff are present
Use maps charts photos
Provide copies of important info
raise any issues around sensitive/source info
s 127
Enter a place if you have RGTB vehicle subject to SW is at the address
You do not need to specify address the vehicle will be located in on SWA as the target is the vehicle not the address.
S112
Items of uncertain status
items are located during a search which you can you can not determine the status of at the time of the search you:
remove the item from the area being searched.
analyse item off site.
Seize if relevant to the search
(must be related to your search)
S123
ITEMS IN PLAIN VIEW
locate an item in plain view while conducting a search or you observe lawfully at a place/ in a vehicle.
RGTB you could seize the item under a search warrant or other power.
You may seize that item.
(This is not a power to further search for related items)
Max duration for a production order
30 days from from the date the order was made
What is a production order
Under S74 of S+S A 2012.
A document which requires a individual or organisation to produce documents to enforcements agencies as EM in relation to the specified offence/s
Who issues POs?
Issuing officers.
Who may apply for a PO?
A enforcement officer
Who must you seek approval from for a PO?
A District approver
What must a district approver consider before approving a PO?
Grounds for PO are met.
Information sought does not make unreasonable demands
Resource benifit of making an application is advantageous to police and the investigation
What if your application relates to news media orgs?
Obtain approval from Police executive member in PNHQ or district commander for district matter.
Who do you obtain written authority from to make an application for a PO?
A constable with the rank of sergeant or higher
How do you apply for a PO?
In writing along with personal appearance or communication orally with issuing officer
when can i apply for an Oral applications for POs
requiring a written application would result in delay that would compromise effectiveness of search.
Question of whether the order should be issued can be properly determined on the basis of oral comms.
All required information is supplied.
What should the issuing officer do if they allow an oral application
What should the applicant do?
record the grounds for the application
The applicant must complete the application form capturing the information conveyed to issuing officer within 24hrs
Using heresay evidence can be used if?
There is sufficient information to prove reliability.
The informants reliability and whether they have given reliable information in the past.
Whether the information has been confirmed by other means.
explain two scenarios in which reparations would not be paid out during lawful searches?
The search is justified by the outcome of its execution.
The grounds for the lawful search were sound.
Can landlords claim compensation for damage caused during lawful searches?
Not if the search was lawful and the damage was justified. They may look into owner building insurance
Two scenarios in which compensation may be available after damage caused during searches
Unreasonable searches or unjustified damage.
Mistakes when search is executed.
Can a person seek compensation for damages after S14 has been used?
Compensation will seldom be granted if entry is made under S14.
Privacy- everyone has the rights to?…
rights to privacy in their own home.
Right to refuse entry.
rights to expect they should be able to conduct lawful activity in their own home
Lawful surveillance means?
unaided observation
unaided sense of hearing.
unaided sense of smell
Take photos. .
Record audio visual (as long as it does not enhance your ability to observe)
What is surveillance?
Planned and directed overt or covert activity for the purpose of:
Ascertaining the location of a thing or a person.
Ascertaining if something has been interfered/ tampered with
Observing and recording observations of people vehicles places and things.
Intercepting private comms
What is a surveillance device
A device which assists and enhances you normal capability to carry out surveillance
interception device
tracking device
visual surveillance device.
What is a visual surveillance device?
Any:
electronic
electromagnetic
electro-optical
mechanical
optical
apparatus
equipment
instrument
or any other device that is used to observe /record private activity.
Does not include spectacles or contact lens used to correct subnormal vision beyond normal vision.
Difference between a production order and a search warrant
Production orders are a less intrusive and less costly alternative to gain E/M
What is a sdarch warrant
A valid search warrant provides legal authority to enter a place, vehicle or other thing to search for and seize specified E/M
S 46
Activities for which a surveillance device warrant is required.
intercepting private communications
tracking
visual observation of private activity in curtilage of private premises.
visual trespass which requires trespass
Surveillance activity is restricted where?
Anywhere a person would reasonably expect privacy.
land in private ownership
any private premises on that land and goods (chattels vehicles or other tangible belongings)
What is a private premises?
dwelling, house, marae
What is non private premises?
hospitals, theaters, shops, bus stations, airports etc….
Note there can be private premises within public premises like staff only areas, private consult areas etc.
Private activity.
activity conducted in a private premises where that person out to reasonably expect privacy.
Private communication
oral, written, telecommunication made under circumstances that may reasonable be taken to indicate that any party to the comms desires it to be confined to the parties involved.
Trespass surveillance
surveilliance which involves trespass onto lands or trespass to goods.
When does trespass surveillance begin?
as soon as an enforcement officer steps onto private property wo consent
Restrictions on use of trespass surveillance devices
Can only be authorised for obtaining EM for serious offences.
What is considered a serious offence?
7 + years I/O
What is curtilage
The land immediately surrounding a house or dwelling including closely associated buildings and structures but excluding any associated open fields.
Instance where you do not need a visual surveillance device warrant S46
A visual surveillance device warrant is not required to gather EM for a serious offence if its useage does not exceed 3 hours in any 24 hour period or 8 hours in total
Example
(Day 1X 3 hrs
Day 2 x 3 hrs
day 3 x 2 hrs) =8 hrs total
interception device
any electronic
electromagnetic
electrooptical
mecahnical
optical
apparatus
equipment
instrument
other device
capable of being used to intercept or record private comms
Does not include hearing aids or similar devices which correct subnormal hearing to noral levels
Is a surveillance device warrant required for interception devices?
yes
When can a interception device be used?
serious offences
identified arms acts 1983 offences
identified psychoactive substances act 2013 offences
voluntary oral comms
voluntary oral communication between one or more persons where at least one part in the comms gives their consent for that comms to be recorded (s47)
Tracking device
a device which can be used
a) to help ascertain by electronic means
the location of a thing or person
b) whether a thing has been
dealt with
opened
tampered with
when can a tracking device be used
may be authorized to obtain EM for any I/O
who may set up a tracking device
Only by specialists trained staff.
Entitled to apply means
entitled to make an application for a surveillence device warrant as the situation is one of serious criminal activity.
Entitled to apply means
entitled to make an application for a surveillence device warrant as the situation is one of serious criminal activity.
Impracticable in the circumstances
you need a device urgently and it is not immediately practicable to obtain a surveillence device warrant
s48
acknowledges certain situations where police need to act immediately wo warrant and use one or more surveillance device.
When can I use a surveillence without warrant in situation of emergency/ urgency?
suspect an offence is, has been, will be committed.
punishable by 14 + years imprisonment
believe a surveillience device would obtain EM for
arms act 1983 offences
- a person by reason of physical /mental condition is incapable of proper control of a FA
May kill cause bodily injury
under domestic violence act 1995- P/O or PSO in place.
A P/O could be obtained.
Drug offences.
OR
situations where
likely to cause injury or serious property loss/ damage and surveillance is necessary to prevent offending
Presenting risk to life and safety and surveillance is necessary as an emergency response
Limitations of surveillence devices during emergency responses
the warrantless period for a surveillence device under emergency is no more than 48 hrs.
who should give approval of an interception device during an emergency
a detective inspector in consultation with legal services.
exceptions to an inspector approving a interception device in an emergency
immediate situation does not allow for planning and prep
statutory criteria met
opportunity arrises to obtain EM that would otherwise be lost if not taken at the time
when do you need to report the warrentless use of a surveilence device
provide to a judge through search and surveillence system within a month of last use.
time limit on surveillence deveices
no more than 60 days
a new warrant is required if you wish to extend.
Warrantless searches:
Enter and searching for arrest
section 7
section 8
section 9
section 10
7 entry wo warrant to arrest a person unlawfully at large.
RGTS ULAL
RGTB they are in place/vehicle.
Enter place/vehicle
Search that place/vehicle
Arrest
8 Entry wo warrant avoid loss of offender/ cadd EM
RGTS I/O
RGTB in place/vehicle.
RGTB will flee/ CADD EM.
Enter
Search
Arrest.
9 stop a vehicle to find ULAL or I/O
RGTS ULAL / IO
RGTB in vehicle.
Stop the vehicle to locate person
10 Powers at duties of constable after vehicle stop
RGTS ULAL / IO
RGTB is in vehicle
REQUIRE- persons suspected to provide ID
SEARCH vehicle for person
SEARCH vehicle for EM
Warrentless searches:
Serious offences
15
16
17
15 Entry WOW to find/ avoid EM CADD
RGTS 14+ yrs IO
RGTB EM will be in place
RGTB CADD
Enter
Search
(includes vehicles on private prop where searching)
16 Searching people in PP WOW EM serious offences
RGTB EM relating to 14 + yr IO on person.
Search that person in PP.
17 Entry WOW search vehilcle EM serious offences
RGTB EM in vehicle relating to 14+ yr IO
Enter vehicle
in public place
search
for EM
