Search and Surveillance Act 2012 Flashcards
1
Q
Meaning of evidential material
A
means evidence of an offence or any other item tangible or intangible of relevance to the investigation of the offence
2
Q
Reasonable Grounds to Believe
A
Having sound basis for believing that a situation or circumstance actually exists
3
Q
Reasonable Grounds to Suspect
A
Having sound basis for suspecting that a situation or circumstance is likely to exist
4
Q
Unlawfully at large
A
- A person with WTA (excludes fines warrant)
- A person UAL under the Corrections Act 2004 or Parole Act 2002
- A prison breaker under s119 of C.A 1961
- An escapee from lawful custody under s120 of C.A 1961
- A special/restricted patient under Mental Health Act 2003 whose escaped and failed to return after expiry or cancellation of leave
- A care/special care recipient under the Intellectual Disability Act 2003 who has escaped and failed to return after expiry or cancellation of leave
- A young person under the CYPFS Act 1989 bound by an order under s311(1) of the act who is absconding from the custody of the chief executive
5
Q
The Search Hierarchy
A
- Search Warrant
- Warrantless Search
- Consensual Search
6
Q
If there is a reason to search a place, vehicle or thing and a warrantless search power exists then…
A
You use the warrantless search power instead of a consensual search under s91 to 96 of the act
7
Q
Decision records
A
Record grounds to suspect or believe known at the time the warrantless power was used because you may need to rely on it at Court
8
Q
Identification and notice. Person in charge of place/vehicle/thing being searched has right to know:
A
- Who is searching
- Their authority for the search
- Reasons why
Unless there are good reasons for not providing this info
9
Q
Force used to gain entry for the purpose of the search must always be…
A
Reasonable
10
Q
When practicable search and seizure should be witnessed by who?
A
Another Police employee, enforcement officer from another agency or person assisting with the search
11
Q
Removed or seized property must be…
A
appropriately documented and accounted for
12
Q
For a search to be lawful you must…
A
- exercise a warrantless power
- execute a warrant power
- conduct the search, examination or inspection with a persons consent
13
Q
R v Williams on inevitable discovery
A
If evidence obtained as a result of a breach of NZBORA 1990 would have been obtained even if the breach had not occurred, the fact that the evidence would have inevitably been discovered is taken into account in determining whether it is admissible under the balancing test in section 30 of the Evidence Act 2006
14
Q
When might subsequent Court proceedings deem a search unreasonable
A
When you dont observe the search hierarchy eg. by conducting a search without a warrant where you had the opportunity to obtain a warrant
15
Q
What may happen to evidential material obtained as a result of a search deemed unreasonable by the Court
A
The evidential material may be deemed inadmissible
16
Q
R v Jefferies on reasonable searches
A
Lawfulness is not determinative of reasonableness and unlawfulness or unreasonableness. If particular evidence would still have been discovered if the unlawful search had not been conducted the evidence may still be deemed admissible
17
Q
Warrantless power under section 11
A
W/L Power to search a PERSON who is or is about to be locked up
18
Q
Warrantless power under section 16
A
W/L Power to search a PERSON found in a public place for evidential material
19
Q
Warrantless power under section 18
A
W/L Power to search a PERSON for arms
20
Q
Warrantless power under section’s 21,22 and 23
A
W/L Power to search a PERSON in relation to drug offences
21
Q
Warrantless power under section 27
A
W/L Power to search a PERSON for knives, offensive weapons and disabling substances
22
Q
Warrantless power under section’s 85 and 88
A
W/L Power to search a PERSON after arrest or detention
23
Q
s110 powers
A
Incidental powers to search
- associated power to seize anything that is the subject of the search or anything else that may lawfully be seized
24
Q
Warrantless power s7
A
To search for and arrest person in any place without warrant
If you have RGT SUSPECT person is unlawfully at large
And have RGT BELIEVE person is in place or vehicle
25
Warrantless power s8
To search for and arrest person in any place without warrant
If you have RGT SUSPECT person has committed an offence punishable by imprisonment
And have RGT BELIEVE person is in place or vehicle
And have RGT BELIEVE delay in entry will result in:
- person leaving to avoid arrest
- evidential material will be concealed, altered, damaged or destroyed
26
What CANT you search for under s8?
Evidential material
UNLESS an arrest is made and a search incidental to the arrest is conducted under s83 to 88
27
Warrantless power s14
You may enter place or vehicle and take ANY ACTION you have RGT BELIEVE necessary to prevent offence or avert emergency
if you SUSPECT offence is being or about to be committed
likely to cause injury to person or serious loss or damage to property
or there is risk to life or safety of any person requiring an emergency response
28
Under s14 what is meant by "take any action"
It means to take any action that is reasonable in the circumstances
29
Warrantless power under s15
To search any place without a warrant
RGT SUSPECT offence punishable by 14 years imprisonment or more has been, is being or about to be committed and BELIEVE evidential material is in a PLACE
and BELIEVE that evidential material will be CADD if entry delayed
30
Practically speaking how is s15 is supposed to be used?
As an urgency power. Once the urgency has passed and scene is secure a warrant should be obtained
It may be appropriate to resort to s117 than to exercise a warrantless power
31
Warrantless power under s16
To search any person in a public place without a warrant
If you have RGT BELIEVE that a person in a public place is in possession of evidential material relating to an offence punishable by imprisonment of 14 years or more
32
Warrantless power under s17
To search any vehicle in a public place without warrant
If you have RGT BELIEVE that evidential material relating to an offence punishable by 14 years imprisonment or more is in or on a vehicle in a public place
33
If a vehicle you have RGT BELIEVE has evidential material relating to an offence punishable by 14 years imprisonment or more is not parked in a public place but on private property what section could you search the vehicle under?
s15
34
What section allows for a warrantless search for arms in vehicles or places?
s18 - allows for warrantless entry, search and seizure in any place or vehicle
35
Requirement under s18
RGT SUSPECT there are arms in any place or vehicle that a category 3 or 4 offence or offence against Arms Act 1983 has been, is being or is about to be committed
OR that may be evidential material in relation to category 3 or 4 offence against the Arms Act 1983
Unless impracticable obtain approval from a Sergeant or above
36
Warrantless power under s28
To search any vehicle for offensive weapons:
If you have RGT SUSPECT offence against s202A(4)(a) of C.A 1961 and vehicle contains knife, offensive weapon or disabling substance
37
Disabling substance
Any anaesthetising or other substance produced to use for disabling a person or intended for such use by person who has it with them
38
Offensive weapon
Any article made or altered to use for causing bodily injury or intended for such use by person who has it
39
Warrantless power under s29
To search any vehicle without a warrant if you have RGT BELIEVE that stolen property is in or on that vehicle
Vehicle must be in a public place
40
To search a vehicle for stolen property under s29 where must it be
In a public place, if vehicle is on private property you should seek a warrant
41
Warrantless power under s83
To enter any place without warrant to search for evidential material if you have RGT BELIEVE evidential material relating to offence is in that place and CADD may occur if entry is delayed
42
Warrantless power under s84
To enter any vehicle without warrant and search for evidential material relating to the offence arrested for if you have RGT BELIEVE evidential is in vehicle
43
Warrantless use of powers notifications and reporting Steps
1. Obtain prior approval from a Sgt or above where applicable (e.q arms search)
2. Provide written notice to person present during execution of warrantless power (POL1275) and an inventory if items seized. If no-one present during search leave POL1275 in a prominent place
3. Make record of decision to use warrantless power and reasons for it (i.e RGTB and RGTS) in notebook
4. Record use of powers in S n S system for warrantless notifications
5. Where applicable complete notification using create notification feature on Microsoft Bulletin Board to notify relevant groups about drugs, firearms, children etc
44
What must you consider before using a consent search?
A search warrant or warrantless search power
45
What must you not use consent search for?
You must have a reason justifying asking a person to consent to a search. It must not be used to go on a "fishing expedition."
46
What MUST you advise before executing consent search?
You must advise the reason for the search and that they can refuse consent or withdraw it at any time - s93
47
When can a person under 14 consent to a search?
They cannot consent to search of a place, vehicle or thing unless they are found driving a vehicle and there is no passenger over the age of 14 with authority to consent to the search
48
What are the exceptions to the consent search rules?
Search is conducted as a condition of entry to any public or private place
Search conducted under a power conferred by enactment
Entry under implied license
49
Purposes for which consent search may be undertaken
- To prevent an offence
- To protect life or property or prevent injury or harm
- To investigate whether offence has been committed
- Any purpose which you could exercise a power of search conferred by an enactment if you held suspicion or belief specified in the enactment
s92
50
What is good practise when conducting consent search?
To identify yourself by name, give reason for your search and provide evidence of I.D if not in Police uniform
51
What must you do if consent is withdrawn during search?
Stop the search immediately unless a warrantless power can be invoked to continue the search
52
When is a consent search unlawful?
- If it is not for a purpose set out in s92
- If you fail to give required advice set out in s93
- you undertake a search relying on consent given by a person who does not have authority to give that consent
s94
53
Can a person under 14 years old consent to a search of themselves or anything in their immediate possession or control?
YES
54
Exceptions to consent search rules s96
Rules do not apply to:
- Searches conducted as condition of entry to a public or private place e.g a condition of entry into a sports match or concert
- a search in accordance with a power a power conferred by an enactment
Rules do not:
- Affect rule of law the implied license to enter property
55
Implied license
it is assumed anyone can enter onto private property so far as necessary to make an enquiry of an occupier. Such an implied license can be revoked by occupier at any time
56
Disadvantages of using consent searches
- Consent can be withdrawn at any time
- If a search power is invoked after consent is withdrawn then initial request may be seen as meaningless
- Existence of validity of any consent given may be challenged in Court
57
What are Police powers incidental to search?
- To enter and search
- To Request assistance from any person
- To use reasonable force on property
- Seize anything subject of search
- Bring and use equipment
- Bring and use trained Police Dog
- Copy documents that may lawfully be seized
- Access computer system or storage device
- Copy intangible material
- Take photographs and recordings
58
If you call on a person to assist you with a search what MUST you do?
Accompany them upon entry
Provide reasonable supervision of them
s113
59
Powers of other Constables assisting
Other Constables may exercise any power exercisable by them without your direction or supervision
60
Warrantless power under s117 enables you to do what?
To secure scenes if search warrant is about to be made in relation to a place, vehicle or thing or has been made but not yet granted or refused by an I.O
61
s117
If you have RGT BELIEVE evidential material may be CADD
You may at any reasonable time enter and secure place vehicle or thing (PVT) and secure any items found there and direct any person to assist with the entry and securing of PVT or items in it
62
When do the powers under s117 lapse?
- after 6 hours from when the power is first exercised
- when the warrant is available for execution at PVT
- when the application for the search warrant is refused
63
When can you detain a person to determine if there is a connection between them and the object of the search?
- when the person was there at the start of the search
- when the person arrives at the place or stops at or enters or tries to enter place or vehicle during search
- you may use reasonable force to continue detention
s118
64
Detaining a person during a search
- may be for any reasonable period of time but not longer than duration of search
- starts when you direct person to remain and ends when you tell them they are free to go
65
What MUST you do once you've detained someone under s118
You must take active steps to determine whether there is a connection between the detained person and the search.
You cannot simply detain a person for the duration of the search then only consider the matter of connection upon completion
66
Under s119, if you are searching Place or Vehicle (PoV) you may search any person found at, who arrives at or stops at, enters or tries to enter PoV if what?
If you RGT BELIEVE that evidential material that is the object of the search is on that person
OR
SUSPECT that person is in possession of dangerous item posing threat to safety and IMMEDIATE action is required to address threat
67
Powers of search if you intended to search person or vehicle but person or vehicle leaves before you are able to start or complete the search
You may enter onto any place without warrant to apprehend any person
IF you have been freshly pursuing the person from intended search location
You must either be the officer in pursuit or acting as that officer's assistant under s113
s120
68
s127
if a search warrant authorises a search of a vehicle, you may enter into any place you have RGT BELIEVE the vehicle is to locate and search it
69
What MUST you do if you exercise a search power BEFORE YOUR INITIAL ENTRY
Identification and announcement:
Announce intention to enter and search PVT and statutory power
Identify yourself by name or unique identifier
If not in Police uniform produce evidence of your identity
70
What else is required either BEFORE OR ON INITIAL ENTRY
A copy of SW must be provided to the occupier, or if this is not practicable a fax or printout of electronically generated copy of the SW or a copy endorsed to that effect
s131(1)
OR
For a W/L search or s117 securing scene state name of enactment under which you are searching and the reason for the search unless impracticable in the circumstances
71
When would you not have to comply with conditions requiring you to announce entry and give reasons for the search?
If you have RGT BELIEVE
- No one is home
- It would endanger safety of any person
- It would prejudice the successful entry and search power
- It would prejudice ongoing investigations
s131(2)
72
Where does your power in relation to securing the scene being searched come from and what does it allow?
s116, allows you to secure PVT or anything found in scene
allows you to exclude any person from scene or area or give them any other reasonable direction IF you have RGT BELIEVE they will obstruct or hinder you
73
What must you provide upon request from a person affected by a search
Reason, Act, Name or I.D
If not in Police uniform produce evidence of I.D
74
When is an officer considered not in uniform and what is required by them before executing search powers?
An officer is not in uniform if they are in plain clothes and the SRBA is the only uniform item they are wearing
They must produce identification when exercising search powers
75
Who can use force to enter a property to search
An officer exercising any search power and any assistant under them may use reasonable force in respect to any property to carry out the search and any lawful seizure
They may also use reasonable force against any property or person to effect entry when justified eg. when entry is resisted or refused
76
What considerations must you take in relation to the use of force for entry?
- Danger to a Police party
- Danger to the occupants of the premises
- Danger to members of the public
77
Prior to forcing entry what should you do?
Announce forced entry by:
- Giving opportunity to occupants to admit you
- Announce presence by knocking on door
- Identify yourself and state why you are there and under what authority
If admission is denied or unreasonably delayed you can force entry when it is safe to do so
78
Under what circumstances would justify an unannounced entry by force if necessary?
- Saving a person on the premises from death or injury
- If announcing entry would endanger Police
- To prevent the destruction of evidence
- Entering when in "hot pursuit" of offender
79
What should you consider before making an unannounced forced entry?
- Tactical options available
- Reasonable and practicable alternatives to a forced entry
- Seriousness of offence or circumstances
- History of violence on part of occupants
- Danger to Police, public or occupants
- Considering whether there are RGT BELIEVE evidence will be destroyed or disposed of
80
What can you search for?
You can only search for items specified in the SW or which are permitted under a W/L power
Vehicles parked on the premises can be searched but a vehicle parked on the street must be specified in the warrant
81
Who can you search at the scene?
You can search any person found there, arrives there, enters or tries to enter if you have RGT BELIEVE:
- Evidential material/object of the search is on that person
- Person is in possession of a dangerous item that poses a threat to safety requiring immediate action
You can seize any such evidential material or dangerous item from the person
s119
82
What can you seize during a search?
Anything that is the object of the search or that may lawfully be seized
83
If you find evidence of an offence other than the one specified in the warrant or covered by your warrantless power can you seize it?
No you cannot seize it unless:
- You obtain another warrant
- You exercise plain view seizure under s123
84
What can you do with items of uncertain status?
If unsure if something can lawfully be seized you may remove for examination or analysis to determine whether it may lawfully be siezed
s112
85
What can you remove as items of uncertain status?
The removal power of s112 is limited to items that you find and are unsure if it is the actual item you are searching for
eg. if you are exercising a search power to locate cocaine and find a package containing white powder you may remove it for the purpose of examination to determine if it is cocaine and can then lawfully be seized
86
When can you not remove items of uncertain status under s112?
If for example the purpose of the search is to locate cannabis but you find a television and are uncertain if it is stolen or not
You would need to consider whether the circumstances are appropriate to exercise a plain view seizure under s123 or secure scene s117 and apply for warrant
87
When can you seize items in plain view?
If you have RGT BELIEVE that the item could have been seized under any SW and if the item could have been seized under any other search power exercisable by you
88
If occupier or person in charge is present what are the notice requirements when exercising a search power?
- If searching via SW, give that person a copy of the SW and attached privileged information contained in "Notice to occupier"
- If using W/L search power give the POL1275 (Notice to person present during W/L search).
89
Exceptions to requirement to provide notice before or on initial entry and where you have RGT BELIEVE unannounced forced entry is justified
- No one is home
- Announcement would endanger Police safety
- Announcement would prejudice the successful exercise of entry and search power
- Announcement would prejudice ongoing investigation
90
If occupier or person in charge is NOT present what are the notice requirements when exercising a search power?
If using SW, then leave in a prominent position at the PVT a copy of the SW and attached privilege information Notice to occupier
If it was a W/L search leave a copy of the POL1275 (Notice to person not present during W/L search).
s131(4)
91
What must you provide if you seize items from the search?
Either at the time of the search or as soon as reasonably practicable after seizure and no later than 7 days following seizure provide occupier/owner or person in charge:
- inventory of items POL268 and notice to owners and others in relation to things seized
- if owner is different from occupier or person in charge and has not previously received relevant form give a copy of authority eg. copy of SW, POL1275
s133
92
Who cant be treated as occupiers or people in charge of PVT?
Any person under 14 years old (unless driving with no passenger over the age of 14 authorised to consent to vehicles search) OR
Any person you have RGT BELIEVE is not the occupier of PVT
s131
93
Who else must be given notice of items seized during a search?
Any person you RGT BELIEVE is the owner of thing seized must be given written notice of what was seized, information about persons right to have access to thing or claim privilege in respect of thing seized
AND
A copy of authority for the search i.e the SW or for W/L searches the name of the enactment under which the search took place
s133
94
All notice to things seized must be provided in what time frame?
Within 7 days
95
Why must care be taken when providing notice to owner of items seized under a search?
POL268's,SW and notice advising of exercise of W/L power of search all contain details of location of where the items were seized from. This may endanger persons from whom the items were seized from
96
If you have concerns about the disclosure of details from where items were seized from what courses of action are available to you?
1. Delete or mark out identity and location on inventory POL268, SW copy and W/L search power notice before giving it to owner
2. Apply to a Judge for postponement of notice and inventory requirements under s134
97
When can you stop a vehicle without a SW to conduct a search?
If you are satisfied grounds exist to search the vehicle or if you are satisfied the SW has been issued and is in force
s121
98
When can you move a vehicle to another place for the purpose of a search or safe keeping?
If you find or stop the vehicle and you have lawful authority to search vehicle but it is impracticable to do so at that place OR
You have RGT BELIEVE it is necessary to move for safe keeping
99
How long can you require a vehicle to remained stopped?
For as long as reasonably necessary for the exercise of any powers in relation to vehicle or its occupants
100
What MUST you do immediately after stopping a vehicle for the purpose of a search?
- Identify yourself to the driver
- State name of enactment
- Reason for the search
- If not in Police uniform produce evidence of identity
101
When can you stop a vehicle without a warrant to effect an arrest?
When you RGT SUSPECT person is unlawfully at large or committed an offence punishable by imprisonment AND
Have RGT BELIEVE person is in vehicle
102
Unlawfully at large means
- Has WTA
- Escaped from lawful custody
- Special or restricted patient who is absent without leave
103
What are your powers and duties after stopping a vehicle under s9?
- Require a person you have RGT SUSPECT is unlawfully at large/committed an offence punishable by imprisonment to provide details
- Search vehicle to locate person if RGT BELIEVE they are in vehicle
- Search vehicle to locate evidential material if person has been arrested or person is seen fleeing from the vehicle before they can be arrested
104
If the driver of the vehicle is not the person you suspect is UAL what must you tell them?
You must advise the driver the object of the proposed search
105
What does Police policy require when stopping a vehicle?
You MUST be wearing a Police uniform or cap, hat or helmet with badge of authority affixed to it OR be following immediately behind vehicle flashing blue and red lights and/or sounding a siren
106
Who can authorise a warrantless road block?
A person holding the rank of A/Sgt, Sgt or above either orally or in writing
107
When can a roadblock be established?
If you RGT BELIEVE that a vehicle has inside it a person you SUSPECT is either UAL or has COPBI
AND if you SUSPECT the vehicle will travel past the place where the intended roadblock will be established
108
How long can the authorisation to establish a roadblock be valid for?
A roadblock is valid for an initial period not exceeding 24 hours and may be renewed by District Court Judge for a single further period not exceeding 24 hours specified in writing by the Judge
109
If you authorise a roadblock what must you keep a written record of?
- The location
| - The period(s) for and grounds on which authorisation for roadblock was granted or renewed
110
What are you authorised to do during a roadblock?
- Set up roadblock
- Stop vehicles
- Require particulars
- Search vehicle for purpose of locating person UAL or has COPBI
s32
111
Rationale for establishing a roadblock must be..
Lawful and reasonable. A community impact assessment must be completed to determine the impact of roadblocks on vulnerable people and on community interest groups
112
What MUST a pre roadblock risk assessment include?
A Community Impact Assessment in writing. An ongoing mental CIA should be carried out as the situation changes during roadblock
CIA can also be done mentally if impracticable due to emergency situations. If so record considerations and decisions in notebook later
113
What are the 3 main types of searches when searching people?
1. Rub down search
2. Strip search
3. Internal search
114
How do you ensure that a search of a person is LAWFUL?
By always:
- exercising a W/L power
- executing a warrant power
- searching with persons consent
115
When searching a person what can you search?
Anything they are wearing or carrying, OR
Anything that is in their physical possession or immediate control - this could include a place or vehicle
116
When can you carry out a warrantless search on a person, place or vehicle in relation to arms?
If you SUSPECT that a person is carrying arms or has it in their control and:
- person is in breach of arms act 1983
- person by reason of their mental or physical condition is incapable of having proper control of the arms or may kill or cause bodily injury
- under domestic violence act 1995 a protection order or PSO is in force against that person OR
- there are grounds to apply for protection order against them
117
Who must you obtain approval from before carrying out a warrantless search for arms?
Obtain approval from a Sgt or above before exercising warrantless search for arms under s18
118
When can you search a person for offensive weapons?
When you have RGT SUSPECT that a person is committing an offence against s202A(4)(a) of crimes act 1961 which relates to possession of knives, offensive weapons and disabling substances
s27
119
Which two alternative search powers is most appropriate for searching someone immediately upon arrest or when detained?
1. A rub down search under s85 to 87
2. A W/L search under s88
A search may be carried out under these two provisions before the search under s11 when people are locked up
120
What is the primary purpose of the s11 search?
It is not to look for evidential material but to protect the detained persons property and remove items that might be used to harm themselves or others
121
What constitutes "locked up"
- being placed behind a door that prevents them from leaving eg. cell or charge room at Police station or vehicle used for Police purposes other than being placed in a Police vehicle only for immediate purposes of transport
122
When can a person be searched after they've been locked up?
- If they were not searched prior to lock up
- If after search and prior to lock up they have been/suspected of being in close proximity to a person who was not locked up OR another person eligible for search after lockup but wasnt
- There are RGT BELIEVE person is in possession of anything that may be used to harm themselves or someone else
123
When and why should you carry out a rub down search of a person?
After they've been arrested or detained and to ensure the person is not carrying anything that may:
- harm any person
- facilitate their escape
s85
124
W/L search of a person for evidential material after arrest
s88
125
What type of evidential material should not be seized under s88?
Evidence should not be seized under s88 for the purpose of obtaining suspects DNA profile
126
When can a sample of DNA be seized from the external body of an arrested or detained person as evidential material?
- a swab to remove a Victims blood on arrested person's neck
- fingernail scrapings from an arrested rape Offender that may link Offender to Victim by DNA
- a swab of arrested person's skin for gunshot residue
- penile swabs
127
What MUST you do when searching people?
You MUST:
- NAR: Name, Act and Reason
- Produce evidence of identification if not in uniform
- Promptly provide person with copy of an inventory of any items seized during search
s125(1)&(4)
128
What MAY you do when exercising a power to search a person?
- detain them for as long as reasonably necessary
- use reasonable force
- use any equipment or aids to facilitate search used in a way that involves no contact/minimal contact and is reasonable
- ask for assistance from medical practitioner/nurse and or parent/guardian or person responsible for person being searched if in the interests of person searched
- ask assistance from another officer also authorised to conduct a strip search and is of same sex as person
- search any item person is carrying or is in their physical possession or immediate control
- seize anything carried by the person or in their immediate possession or control
- copy all or part of document carried by person being searched if in possession or control and object of search
- access computer system or data storage if intangible material is subject of search
- copy intangible material
- take photographs or make recordings or drawings of anything being carried or in the physical possession or control IF you have RGT BELIEVE the photographs is relevant to purpose of search
s125(1)
129
All searches MUST be reasonable, they are likely to be reasonable under s21 of NZBORA if...
The search complies with s125 of S n S 2012
130
What is a rub down search?
A search of a clothed person where you may:
- run or pat your hand over the body of person being searched either outside or inside their clothing (not under clothing)
- insert your hand inside any pocket or pouch in their clothing (not under clothing)
- for purpose of permitting visual inspection require a person being searched to:
- open their mouth
- display palms of hands or soles of feet
- lift or rub their hair
s85(2)
131
Can a rub down search include a visual examination?
It may include a visual examination or mouth, nose and ears but must not include the insertion of any instrument, device or thing into those orfices
132
What can be done to facilitate a rub down search?
You may require person being searched to:
- remove, raise, lower or open any outer clothing being worn except when they have no other clothing or only under clothing, under that outer clothing AND
- remove any head covering, gloves, or footwear being worn including socks or stockings
133
What else may you search during a rub down?
- any item carried by or in possession of person
- any outer clothing removed, raised, lowered or opened for purposes of search
- any head covering, gloves, or footwear removed for purposes of the search
s86
134
When may you carry out a rub down search of an arrested or detained person?
To ensure they are not carrying anything that may be used to:
- harm any person
- facilitate their escape
135
If it is not practicable to complete a full rub down search immediately after arrest or detention what should you do?
- conduct a visual examination of their head, torso, arms and legs as a preliminary check for weapons and evidential material AND
- remain with them and closely observe them to prevent them from using anything to facilitate their escape or hiding or disposing of any evidence
- if suspect is transported in a vehicle, check the seat and surrounding area of vehicle afterwards
136
What MUST all prisoners undergo upon arrival at the custody area or station?
All prisoners must undergo a rub down search as soon as they arrive at the custody area or station UNLESS:
- it is unjustifiable eg. it is a minor charge or all evidence is located
- the prisoner is not placed into a cell or left unsupervised or not at risk of harming any person or escaping before they are bailed
- there is justification in the circumstances to conduct a strip search instead
137
Mcrae v Police
Search for offensive weapon in vehicle
Police must establish/make enquiries into whether occupier of vehicle has a reasonable excuse for being in possession of offensive weapon
In this case, the driver had large machete in back seat and said it was for camping. He also had a packed tent in the boot however the Court suggested the explanation is not a reasonable excuse and the officer was entitled to search the vehicle under S n S. Even if the excuse given for the machete had been fully explained it still would not have been accepted by Police as a reasonable excuse
138
Kearns v R
Search of vehicle for offensive weapon by Police deemed unlawful.
- Mr Kearns explanation for being in possession of a craft knife is because he keeps the knife in his car due to his job as a quantity surveyor
- Court held that Mr Kearns had a reasonable excuse and therefore the search was unlawful
