Search and Surveillance Act 2012 Flashcards
Reasonable grounds to believe means…
having a sound basis for believing that a situation or circumstance actually exists.
Reasonable grounds to suspect means…
having a sound basis for suspecting that a situation or circumstance is likely to exist
Under the S & S Act a reasonable search is a search that:
- complies with s21 of the NZ Bill of Rights Act
- considers factors such as:
the nature of the search,
how intrusive the search is,
where and when the search takes place.
Why use a search warrant? (3)
- Ensures judicial oversight
- Provides greater protection for Police and the public
- Requires recording and reporting of results
Before conducting a search by consent, you must determine that the search is for one of the following reasons (4):
- 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
Before conducting a search by consent you must advise the person from whom consent is sought:
- of the reason for the proposed search
- that they may consent or refuse to consent to the search
A person under 14 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
Do you have to report a consent search?
No
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
When deciding if you should use a warrantless power, amongst other things you should consider if there is a possibility that evidential material will be…
Concealed, altered, damaged or destroyed
When searching a place, vehicle or other thing, you must comply with the obligations set out under s131. Your obligations cover:
Identification, intention, reason and notice
Section 131 states that before or on initial entry into or onto the place, vehicle or other thing to be searched, you must give “notice” to the occupier or person in charge. What does this include if executing
a) a search warrant?
b) a warrantless power?
a) provide a copy of the search warrant
b) state the name of the enactment under which the search is taking place and the reason for the search (unless it is impracticable to do so in the circumstances) AND policy directs that you must provide a copy of the POLSW8
What are the exceptions to identification and notice requirements - s131(2). There are four exceptions.
If you have reasonable grounds to believe
- that no one is present
- this would endanger any person’s safety
- this would prejudice the successful use of the entry and search power
- this would prejudice ongoing investigations
What are the actions allowed by s116?
Secure a place, vehicle or other thing to be searched AND exclude any person from there
What are the actions allowed by s118?
Detain people when searching places and vehicles
What are the actions allowed by s119?
Search people found when searching places and vehicles if you have reasonable grounds to believe that evidential material that is the object of the search is on that person
What are the actions allowed by s120, powers of search when suspect is pursued?
Whilst in fresh pursuit, and with reasonable grounds to believe 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.
What does AWOCA stand for?
Ask, Why, Options, Confirm, Action
What are your obligations when searching a person (s125)?
Name, act, reason
What if someone else arrives at the place or vehicle and starts talking to the person you have detained under s118? (Four options)
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 s116(1)(b)
- detain that person to determine if there is any connection between them and the object of your search s118(1)
- search that person if you have reasonable grounds to believe that they may have evidential material on them s119(1)
- search that person if you have RGTS they may have a dangerous item that poses a threat to safety and you believe you need to act immediately to address that threat s119(2)(a) and (b)
Police policy directs you must report your use of warrantless powers within what time frame?
By the end of shift
Before commencing to make an application for a SW, you must be sure that there are…
- Reasonable grounds to suspect that an offence punishable by imprisonment has been, will be, is being or is about to be committed, and
- Reasonable grounds to believe that the search will find evidential material in respect of the offence in the place, vehicle, other thing or facility.
What are the special powers offered by s117?
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 SW 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.
How long is a search warrant valid?
No more than 14 days OR 30 days if applied for
When is a search warrant considered executed?
When you (or anyone assisting you):
- have seized the evidential material specified in the SW, OR
- leave the place, vehicle or other thing to be searched and do not return within 4 hours
How often can a search warrant be executed?
Once UNLESS more than one execution is applied for, justified and authorised in the SW
What does Section 169(1) require?
A written report on the exercise of a warrantless entry power
When you execute a SW you are obliged to provide a copy of the SW (s131). If providing a copy of the SW would:
- endanger the safety of any person, OR
- prejudice ongoing investigations
you may apply to a judge to postpone your obligation to provide a copy of the SW.
An application to postpone is made under what section?
134
When executing a SW you may be required to use reasonable force to do what?
- s131
- s110
- s125
- enter the place, vehicle or other thing (s131)
- search (on property only) and seize (s110)
- carry out a search of a person (s125)
What does GSMEAC stand for?
Ground Situation Mission Execution Administration Communication
Briefly, what are the rules, obligations and powers under these sections? 131 - 125 - 110 - 169 -
s131 - identification and notice requirements when searching places, vehicles and other things
s125 - the rules for searching people
s110 - powers incidental to search
s169 - reporting
The Search and Surveillance Act provides powers for dealing with other items that you may find in the course of executing a SW:
s112 -
s123 -
- items of uncertain status may be seized (s112)
- seizure of items in plain view (s123)
s125 states that when you exercise a power to search a person you must…
- identify yourself by name or unique identifier - advise the person of the enactment under which the search is taking place and the reason for the search, unless it is impracticable to do so - produce evidence of identity if not in uniform
s125 states that when you exercise a power to search a person you may…
- detain the person to enable the search to be carried out (for as long as is reasonably necessary) - use force that is reasonable for the purposes of the search - search any item that the person is wearing, carrying or is in the person’s physical possession or immediate control - seize anything carried by or in their physical possession or immediate control if the thing is the subject of the search or maybe lawfully seized
Section 121 provides the power to…
Stop a vehicle if you intend to search it
What powers do s127 provide in relation to search warrants regarding vehicles?
If a SW has been issued authorising entry and search of a vehicle, person executing may enter any place to locate the vehicle to execute the search warrant IF you have RGTB that the vehicle is there
s14 allows warrantless entry in emergency situations. You must have RGTS that…
- an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or serious loss of any property OR
- there is a risk to the life or safety of any person that requires an emergency response
Section 7 allows you to…
enter a place or vehicle to search for and arrest a person if you have:
- RGTS that person is unlawfully at large and
- RGTB the person is in the place or vehicle
Section 8 allows you to…
enter a place or vehicle to search for and arrest a person without warrant if you have
- RGTS that person has committed an offence punishable by imprisonment and for which they may be arrested without warrant AND
- RGTB that the person is there AND
- RGTB that if you do not enter immediately either or both of the following may occur
- the person will leave to avoid arrest
- evidential material for the offence for which the person is to be arrested will be CADD
s123 states if you are exercising a search power (place, vehicle or other thing), or conducting a lawful search of a person, or
lawfully in any place, or in or on a vehicle you may seize any item(s) you find in the course of carrying out the search or as a result of observations at that place, IF…
you have RGTB you could have seized the item(s) under any search warrant OR any warrantless search power
s85 provides power to conduct…
rub-down search of arrested or detained person
s88 provides power to conduct…
Warrantless search of arrested or detained person
Section 11 allows you to
search a person who has been taken into lawful custody
s83: Warrantless entry and search of a place after arrest
s84: Warrantless entry and search of a vehicle after arrest
You can only use these powers, at any place or vehicle, if…
you are the arresting officer (whether or not the person was arrested there).
Sections 15-17 govern warrantless searches for evidential material relating to offences punishable by imprisonment of 14 years or more. What do these sections relate to?
s15 -
s16 -
s17 -
s15 - Entry and search of places
s16 - Searching people in public place
s17 - Entry and search of vehicles in a public place
Section 18 of the S & S Act allows you, without a warrant, to enter and search for…
arms
The S & S Act allows warrantless searches for drugs or precursor substances. What are the sections and what do they allow you to search?
s20 - places and vehicles
s21 - people found in or on places or vehicles
s22 - person
Under what circumstances may you search a person in a public place without warrant for an offensive weapon? (s27, S&S Act)
If you have RGTS that the person is committing an offence against s202A(4)(a), Crimes Act 1961.
Section 29, S&S Act allows you to search a vehicle for stolen property without a warrant if…
you have RGTB that stolen property is in or on the vehicle
Section 9 provides a power to…
stop a vehicle without a warrant to arrest a person if you have RGTS that the person is unlawfully at large OR has committed an offence punishable by imprisonment
You may stop a vehicle under s9 then search it under section…
10
Section 48, S&S Act enables an officer to use a surveillance device without obtaining a surveillance device warrant in certain situations. How long may they use the device under this section?
No longer than 48 hrs from the time the device is first used.
Section 48(1), S&S Act enables an officer who is any one or more of the situations set out in subsection 2 to use surveillance device for a period of time without getting a warrant. What are the two special conditions outlined in 48(1)(a) and (b)?
(a) entitled to apply for a warrant in relation to those situations
(b) obtaining a warrant within the time in which it is proposed to undertake the surveillance is impracticable in the circumstances
Section 46, S&S Act enables you to observe private activity in the curtilage of private premises and record it with a surveillance device for up to…
(i) 3 hrs in any 24 hr period
(ii) 8 hrs in total
Under what circumstances may you search a vehicle without warrant in a public place for an offensive weapon? (s28, S&S Act)
If you have RGTS that a person travelling in the vehicle (or has exited from it) is committing an offence against s202A(4)(a), Crimes Act 1961 AND the vehicle contains a knife, offensive weapon or disabling substance.
