Search and surveillance act 2012

Question 1

Define: Arms

Answer 1

Any firearm, airgun, pistol, restricted weapon, imitation firearm, or explosive (as per s2 arms act 1983), or any ammunition.

Question 2

Define: Curtilage

Answer 2

Is a legal term used to define the land immediately surrounding a house or dwelling, including an 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 home activities’ take place.

Question 3

Define: Evidential material

Answer 3

In relation to a particular offence, means evidence of the offence or any other item, tangible or intangible, or relevance to the investigation of the offence.

Question 4

Define: Non-private premises

Answer 4

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.

Question 5

Define: Private activity

Answer 5

Means activity that, in the circumstances, any one or more of the participants in it ought to expect is observed or recorded by no one except the participants.

Question 6

Define: Private premises

Answer 6

Means a private dwelling-house, a marae, and any other premises that are not within the definition of non-provate premises.

Question 7

Define: Surveillance device

Answer 7

Means a device that is any one or more of the following kinds of devices:

• (a) An interception device
• (b) A tracking device
• (c) A visual surveillance device

Question 8

Define: Trespass surveillance

Answer 8

Means a surveillance that involves trespass to land or trespass to goods.

Question 9

Define: Unlawfully at large

Answer 9

In relation to a person, means that the person:

• Has an arrest warrant in force (excluding fines warrants)
• Has escaped from prison or is absent without leave
• has escaped from lawful custody, eg police cells, police car.
• Is a special patient or a restricted patient and has escaped or has failed to return from leave.
• Is a care recipient or special care recipient (with an intellectual disability) and has escaped or has failed to return from leave.
• Is a “young person” who is the subject of a youth court “supervision with residence” order and they are absconding from CYFS custody.

Question 10

Define: Visual surveillance device

Answer 10

(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 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.

Question 11

Section 7

Entry without warrant to arrest person unlawfully at large

Answer 11

A constable may enter a place or vehicle without warrant to search for an arrest a person if the constable has reasonable grounds

(a) to suspect that a person is unlawfully at large, AND
(b) to believe that the person is there

Powers:

• May ENTER the place or vehicle,
• and SEARCH the place or vehicle for the person for the purpose of arresting them.

Question 12

Section 8

Entry without warrant to avoid loss of offender or evidential material

Answer 12

In the following circumstances that a constable has reasonable grounds

(a) To suspect that the person has committed an offence that is punishable by imprisonment and for which he or she may be arrest without warrant, AND
(b) to believe that the person is there, AND

(c) to believe that, if entry is not effected immediately, either or both of the following may occur:
(i) the person will leave to avoid arrest
(ii) evidential material relating to the offence for which the person is to be arrest will be destroyed, concealed, altered, or damaged (CADD)

Powers:

• May ENTER the place or vehicle,
• and SEARCH the place or vehicle for the person for the purpose of arresting them.

Note: Section 8 does not give you a power to search for evidential material.

Question 13

Section 9

Stopping a vehicle to find persons unlawfully at large or who have committed certain offences (imprisonable offences)

Answer 13

A constable may stop a vehicle without a warrant to arrest a person if the constable has reasonable grounds

(a) to suspect that a person is:
(i) is unlawfully at large, OR
(ii) has committed an offence punishable by imprisonment

(b) to believe that the person is in or on the vehicle.

Powers: STOP the vehicle for the purpose of arresting that person

Question 14

Section 10

Powers and duties of a constable after vehicle stopped

Answer 14

A constable exercising the stopping power under section 9 may do any 1 or more of the following:

(a) REQUIRE any person in or on the vehicle who the constable has reasonable grounds to suspect is unlawfully at large or has committed an offence punishable by imprisonment to supply all or any of his or her name, address, other contact details, and date of birth.
(b) SEARCH the vehicle to locate the person referred to in section 9, if the constable has reasonable grounds to believe that the person is in or on the vehicle.

(c) SEARCH the vehicle to locate property that is evidential material in relation to any offence in respect of which the vehicle was stopped under section 9, if the person referred to in section 9—
(i) has been arrested; or
(ii) is seen fleeing from the vehicle before he or she can be arrested.

Note: Before conducting a search under a power conferred by subsection (1)(c), a constable must tell the driver the object of the proposed search, if the driver is not the person referred to in section 9.

Question 15

Section 15

Entry without warrant to find and avoid loss of evidential material relating to certain (14 years or more) offences

Answer 15

A constable may enter and search a place without a warrant if he or she has reasonable grounds—

(a) to suspect that an offence punishable by imprisonment for a term of 14 years or more has been committed, or is being committed, or is about to be committed, AND

(b) to believe—
(i) that evidential material relating to the offence is in that place, AND
(ii) that, if entry is delayed in order to obtain a search warrant, the evidential material will be destroyed, concealed, altered, or damaged (CADD)

Note: Section 15 is also intended to allow you to search a vehicle in the place you are searching. This does not include a vehicle in a public place, as this is covered under section 17.

Question 16

Section 16

Searching people in public place without warrant for evidential material relating to certain (14 years or more) offences

Answer 16

A constable may SEARCH a person without a warrant in a public place if the constable has reasonable grounds to believe that the person is in possession of evidential material relating to an offence punishable by imprisonment for a term of 14 years or more.

Question 17

Section 17

Warrantless entry and search of vehicle for evidential material relating to certain (14 years or more) offences

Answer 17

A constable may, without a warrant, ENTER and SEARCH a vehicle that is in a public place if he or she has reasonable grounds to believe that evidential material relating to an offence punishable by imprisonment for a term of 14 years or more is in or on the vehicle.

Question 18

Section 18

Warrantless searches associated with arms

Answer 18

18(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a person may, without a warrant, do any or all of the following:

(a) SEARCH the person.
(b) SEARCH any thing in the person’s possession or under his or her control (including a vehicle).
(c) ENTER a place or vehicle to carry out any activity under paragraph (a) or (b):
(d) SEIZE and detain any arms found:
(e) SEIZE and detain any licence under the Arms Act 1983 that is found.

18(2) The circumstances are that the person is carrying arms, or is in possession of them, or has them under his or her control, AND:

(a) he or she is in breach of the Arms Act 1983, OR

(b) he or she, by reason of his or her physical or mental condition (however caused),—
(i) is incapable of having proper control of the arms, OR
(ii) may kill or cause bodily injury to any person, OR

(c) that, under the Domestic Violence Act 1995,—
(i) a protection order or a police safety order is in force against the person, OR
(ii) there are grounds to make an application against him or her for a protection order.

18(3) A constable may, without a warrant, ENTER a place or vehicle, SEARCH it, SEIZE any arms or any licence under the Arms Act 1983 found there, and DETAIN the arms or licence if he or she has reasonable grounds to suspect that there are arms in the place or vehicle—

(a) in respect of which a category 3 offence or a category 4 offence, or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed, OR
(b) that may be evidential material in relation to a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983.

Question 19

Section 20

Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences

Answer 19

A constable may ENTER and SEARCH a place or vehicle without a warrant if he or she has reasonable grounds

(a) to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is:
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975, OR
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975, OR
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, OR
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975, AND

(b) to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance, AND
(c) to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged (CADD)

Question 20

Section 21

Warrantless searches of people found in or on places or vehicles

Answer 20

A constable conducting a search of a place or vehicle under section 20 may, without a warrant, SEARCH any person found in or on the place or vehicle.

Question 21

Section 22

Warrantless power to search for controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975

Answer 21

18(1) A constable may, in the circumstances set out in subsection (2), SEARCH a person without a warrant.

18(2) The circumstances are that the constable has reasonable grounds—
(a)to believe that the person is in possession of—
(i)(ii)(iii)+(iv) a controlled drug specified or described in Schedule 1 , 2 and 3 of the Misuse of Drugs Act 1975 (class A, B and C drugs + precursor substance)
AND
(b) to suspect that an offence against the Misuse of Drugs Act 1975 has been committed, is being committed, or is about to be committed, in respect of that controlled drug or precursor substance.

18(3) This section does not—

(a) limit section 20 or 21; or
(b) authorise a constable to enter or search a place or vehicle except in accordance with those sections.

Question 22

Section 27

Searching people in public places without search warrant if offence against section 202A(4)(a) of Crimes Act 1961 suspected

Answer 22

A constable who has reasonable grounds to suspect that a person is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances) may, without a warrant, SEARCH the person.

Question 23

Section 28

Stopping and searching vehicles without warrant if offence against section 202A of Crimes Act 1961 suspected

Answer 23

(1) A constable who has reasonable grounds to suspect that the circumstances in subsection (2) exist in relation to a vehicle may SEARCH the vehicle.

(2) The circumstances are that—
(a) a person travelling in the vehicle or who has alighted from it is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances), AND

(b)the vehicle contains a knife, offensive weapon, or disabling substance.

Question 24

Section 83

Entry without warrant after arrest

Answer 24

(1) This section applies if a person—
(a) arrests a person for an offence, AND
(b) has reasonable grounds to believe that evidential material relating to the offence is at a place and that the evidential material will be destroyed, concealed, altered, or damaged if entry to that place is delayed to obtain a warrant.
(2) The person may ENTER the place without a warrant to SEARCH for the evidential material relating to the offence (whether or not the person was arrested there).

Note: Section 83 is also intended to allow you to search a vehicle at the place you are searching.

Question 25

Section 84

Warrantless entry and search of vehicle after arrest

Answer 25

A person to whom this subpart applies who has arrested a person and who has reasonable grounds to believe that evidential material relating to the offence for which the person was arrested is in or on a vehicle may enter and search it without a warrant.

Note: Section 84 is only intended to allow you to search a vehicle in a public place.

Question 26

Section 112

Items of uncertain status may be seized

Answer 26

If a person exercising a SEARCH power is uncertain whether any item found may lawfully be seized, and it is not reasonably practicable to determine whether that item can be seized at the place or vehicle where the search takes place, the person exercising the SEARCH power may REMOVE the item for the purpose of examination or analysis to determine whether it may be lawfully seized.

Note: Items of uncertain status can be removed during a search of a place, vehicle, other thing or a person.

Question 27

Section 117

Special powers where application for search warrant pending

Answer 27

117(1) If an application for a search warrant is about to be made or has been made and has not yet been granted or refused by an issuing officer, an enforcement officer present at the place or vehicle that is or is to be the subject of the application may, if authorised by subsection (2),—

(a) enter and secure the place, vehicle, or other thing in respect of which authorisation to enter and search is being sought, and secure any item or items found at that place or in or on that vehicle or other thing, at any time that is reasonable in the circumstances
(b) direct any person to assist with the entry and securing of the place or vehicle or other thing or the securing of items in it (including, without limitation, a member of a hapū or an iwi if the place to be entered is of cultural or spiritual significance to that hapū or iwi).

117(2) The powers conferred by subsection (1) may be exercised if the enforcement officer has reasonable grounds to believe that evidential material may be destroyed, concealed, altered, damaged (CADD) or removed before a decision is taken to grant or refuse the issue of a search warrant.

117(3) The powers conferred by subsection (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.

117(4) A person who exercises any power under subsection (1) must, on the request of any person affected by the exercise of the power,—

(a) identify himself or herself either by name or by unique identifier, AND
(b) state the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do so in the circumstances, AND
(c) if not in Police uniform, produce evidence of his or her identity.

Question 28

Section 121

Stopping vehicles with or without warrant for purposes of search

Answer 28

121(1) + (2) An enforcement officer who has any power to stop a vehicle under any section of this act (including with or without warrant):

121(3) On the request of any person affected by the exercise of the power,—

(a) identify himself or herself either by name or by unique identifier, AND
(b) state the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do so in the circumstances, AND
(c) if not in Police uniform, produce evidence of his or her identity.

Question 29

Section 123

Seizure of items in plain view

Answer 29

123(1) This section applies to an enforcement officer who, as part of his or her duties,—

(a) exercises a search power, OR
(b) is lawfully in any place or in or on a vehicle, OR
(c) is conducting a lawful search of a person.

123(2) An enforcement officer to whom this section applies may SEIZE any item or items that he or she, or any person assisting him or her, finds in the course of carrying out the search or as a result of observations at the place or in or on the vehicle, if the enforcement officer has reasonable grounds to believe that he or she could have seized the item or items under—
(a) any search warrant that could have been obtained by him or her under this Act or any other enactment,
OR
(b) any other search power exercisable by him or her under this Act or any other enactment.
(3) If an enforcement officer seizes any item or items under subsection (2), in circumstances where he or she is not already exercising a search power, the enforcement officer may exercise any applicable power conferred by section 110 in relation to the seizure of the item or items.

Question 30

Section 45

Restrictions on some trespass surveillance and use of interception device

Answer 30

(1) Nothing in this subpart authorises any enforcement officer to UNDERTAKE trespass surveillance (other than by means of a tracking device) except in order to obtain evidential material in relation to an offence—
(a) that is punishable by a term of imprisonment of 7 years or more, OR
(b) against relevant sections of the Arms Act 1983, OR
(c) against relevant sections of the Psychoactive Substances Act 2013.

(2) Nothing in this subpart authorises any enforcement officer to USE an interception device except in order to obtain evidential material in relation to an offence—
(a) that is punishable by a term of imprisonment of 7 years or more, OR (b) and (c) as above.

Question 31

Section 46

Activities for which surveillance device warrant required

Answer 31

(1) Except as provided in sections 47 and 48, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:
(a) USE of an interception device to intercept a private communication:

(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:
(c) OBSERVATION of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) USE of a surveillance device that involves trespass to land or trespass to goods:

(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 the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.

(2)This section is subject to section 45.

Question 32

Section 47

Some activities that do not require warrant under this subpart

Answer 32

(1) No warrant under this subpart is required by an enforcement officer for any 1 or more of the following activities:
(a) The enforcement officer—
(i) being lawfully in private premises, AND
(ii) recording what he or she observes or hears there (provided that the enforcement officer records only those matters that he or she could see or hear without the use of a surveillance device)

(b) Covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them.

(c) Activities carried out under the authority of an interception warrant issued under—
(i) section 4A(1) or (2), 4IB(1) or (2), or 4ID(1) of the New Zealand Security Intelligence Service Act 1969; or
(ii) section 15A(1)(a) of the Government Communications Security Bureau Act 2003:

(d) Activities carried out by the enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this Act.
(2) Subsection (1)(b) does not prevent an enforcement officer from applying for a warrant authorising covert audio recording in the circumstances set out in that subsection.