Search and Surveillance Act Module Flashcards
Purpose of the Act
Section 5
To facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values by:
- modernising the law of search, seizure and surveillance to take into account advances in technology
-providing rules that recognise the importance of the rights and entitlements in other Acts
-ensuring investigative tools are effective and adequate for law enforcement needs
How to comply - Police will…
- ensure it has lawful authority to conduct searches etc and exercise any incidental power in relation to those activities, including use of force
- conduct risk assessments and take action to mitigate risk
- only seize what can lawfully be seized
- provide appropriate announcements and identification in the exercise of those powers
- satisfy requirements detailed in the Act
RGTS
Reasonable grounds to suspect means having a sound basis for suspecting that a situation or circumstance exists.
RGTB
Reasonable grounds to believe means having a sound basis in believing that a situation or circumstance exists.
Reasonable Grounds - You must…
record your reasonable grounds for using a search power in your notebook. This is your decision log.
Beware you may be required to report on your decision to use a power or your grounds for using it or justify your use of a power in Court.
Lawful search
- with a search warrant
- under a warrantless power
- with the persons consent
Reasonable search
- complies with s.21 NZBOR Act
- considers factors such as
- –the nature of the search
- –how intrusive the search is
- –where and when the search takes place
Is a Search Warrant practicable decision making
Consider
- is there time to gain approval and apply for search warrant
- can the scene be secured
- are reasonable resources available to minimise risk and ensure safety
- is evidential material at risk
- location of the search and who may be present
Why use a search warrant?
- Ensures judicial oversight
- provides greater protection for Police and the public
- Requires recording and reporting of results
Reasons for a Consent Search
- 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
You can not randomly conduct a consent search. One or more of the above reasons must apply.
Advise before consent search
- the reason for proposed search
- they may consent or refuse to consent to the search
They may withdraw consent at any time and you must stop.
Age to consent to search
A person under 14 years of age can not consent to the search of a place, vehicle or thing (unless alone in a vehicle)
Does consent search have to be reported?
No
Evidential material
means any evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.
C in CADD
Concealed
By burying or hiding items in another place or removing items
A in CADD
Altered
By changing or removing serial numbers from stolen property in an attempt to disguise it.
1st D in CADD
Damaged
By cutting out the firewall of a stolen car to remove an identifying feature.
2nd D in CADD
Destroyed
By consuming food, alcohol or drugs, burning clothing.
S 131 Obligations cover…
Identification, intention reason and notice
S 131 Obligations - before intial entry you must
Identify yourself by name or unique identifier
Announce your intention to enter and search
State the name of the Act
Give notice by providing a copy of the search warrant
Remember when you have detained a person for the purpose of a search you must caution them (BOR)
S 131 Obligations - warrantless search power
Must state reason for your search Must provide a copy of the search warrant or a warrantless search notice to occupier (POL1275) Provide inventory of items seized Report your use of certain powers Consider privilege
S 131 - Giving notice (search warrant)
Provide a copy of search warrant
s 131 - Giving notice (warrantless power)
State the name of the Act under which the search is taking place and the reason for the search
You can use POL1275 - search notice to occupier
s 131 exceptions
Reasonable grounds to believe
- no one is present
- endanger any persons safety
- prejudice the successful use of he entry and search power
- prejudice on-going investigation
Time frame for providing POL268 and POL1275 when persons not present
7days
S 110 - powers
- enter and search the 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 subject of the search or anything else that may be lawfully seized
- request assistance with entry and search
- bring and use any equipment found on the place, vehicle or other thing
- bring and use a trained law enforcement dog and its handler
- copy any document that may be lawfully seized
- access a computer system or other data storage device
- copy intangible material
- take photographs, sound and video recording and drawings
s 116 - excluding person
If you have RGTB that any person would obstruct/hinder your ability to search you may use this section to exclude that person from the thing being searched or any area in or on the place being search
Give any reasonable direction to that person
s 116 - summary
you can secure a place, vehicle, or other thing to be searched and exclude any person from there
s 118
you can detain people when searching places and vehicles for the 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
s 119
You can search people found when searching places and vehicles if you have RGTB that evidential material that is the object of the search is on that person OR
if you have RGTS that the person is in possession of a dangerous item that poses a threat to safety and you believe immediate action is need to address that threat
s 120
If you are in fresh pursuit and with RGTB 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
AWOCA
If a person resists use the AWOCA process.
Ask, Why, Options, Confirm, Action
Searching people - what can you do?
Search any item the person is wearing, carrying, has in their possession or immediate control.
Seize any item if it is the item you are looking for or it is an item that may be lawfully
Must be conducted with decency and sensitivity. With a degree of privacy and dignity that is consistent with achieving the purpose of the search.
Privilege material includes…
Communication with:
- legal advisors
- minster of religion
- medical practitioners
- clinical psychologists
- informants
- journalists
When does privelge NOT apply?
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
Procedures for searches involving privileged material
You must:
- ensure that the person or their representative is present when the search is undertaken
- give the person a reasonable opportunity to claim privilege
The person may make a copy of any document seized.
If you are searching and have RGTB that anything discovered during the search may be privileged you must provide the person an opportunity to claim privilege.
If something is claimed as privilege it should be secure the thing but do not continue to examine it
Keys steps in Search Warrant process
- Gain prior approval
- Gain online approval
- Gain Issuing Officer authorisation
- Plan and brief search warrant execution
- Execute search warrant
- Report outcomes
- File investigation records
Circumstances for getting a search warrant…
Apply in writing
Apply orally
Apply without approaching an issuing officer in person (on the phone)
Secure the scene while you apply for a warrant (6 hours)
Before making online warrant application you must …
- RGTS that an offence punishable by imprisonment has been, will be or is being or is about to be committed and RGTB that the search will find evidential material in respect of the offence in that place, vehicle, other thing or facility.
- Have checked the target/s history in NIA for other applications/outcomes
- Have assessed the risks associated with SW
- Have obtained initial approval from a supervisor at or above the rank of Sergeant
Risks must be …
Identified, assessed and considered in planning how you execute warrant
Planned Action Risk Assessment and CARD must be completed
s 117
If a search warrant is about to be made or has been made and you have RGTB that evidential material may be CADD or removed before the search warrant can be issued you may:
- enter and secure a place, vehicle or other thing and
- secure any item found there
- direct any person to assist with entry and securing the place or vehicle or securing items in it
At what point(s) does s 117 expire
- the expiry of 6 hours from when the power was first exercised
- the warrant is available for execution at that place
- the application for the search warrant is refused
Who can issue a search warrant?
Issuing Officers may be a: -District Court Judge -High Court Judge Or any person authorised by the Attorney General such as a: -JP -Community Magistrate -Registrar -Deputy Registrar
When will a search warrant be authorised?
If an Issuing Officer is satisfied the application shows:
- RGTS an offence punishable by imprisonment has been, will be or is being committed and
- RGTB that the search will find evidential material in respect of the offence in that place
Issuing Officer - restrictions
- Restricting the time when the search warrant can be reasonably executed
- Requiring the occupier or person in charge of a place to provide reasonable assistance to the officer executing the search warrant
- Requiring a report on the search warrant within a specified timeframe.
When SW application is refused?
- Record the issuing Officers reasons for refusing
- Consider the issues raised and is possible re-draft the application
- Resubmit to the same Issuing Officer
If issues can not be addressed:
- Make further enquiries to support application
- Consider whether to continue your investigation without conducting a search
- If the reason for not signing the SW seems unreasonable submit a report to Legal Services for direction
Who may execute a SW?
The person to whom it is directed or any Constable
How long is a SW valid?
No more than 14 days from date of issue as specified by Issuing Officer.
No more than 30 days from date f issue if you have justified why this is necessary
When can a SW be executed?
At any time that is reasonable under the circumstances or
At a restricted time required by the Issuing Officer as a condition of execution
When is a SW considered executed?
When you have seized the evidential material specified in the warrant or
leave the place and do not return within 4 hours
How often can a SW be executed?
Once unless more than one execution is applied for and authorised.
On-going risk assessment requirements
Review and re-assess the 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 search warrant briefings
How to postpone giving notice?
You may apply to a judge to postpone your obligation to provide a copy of the search warrant if providing a copy of the search warrant or the inventory would
- endanger the safety of any person
- prejudice on-going investigations.
Must be made at the time of application or within 7 days.
A judge can postpone for a period not exceeding 12 months.
GSMEAC
Ground -location -address -neighbours Situation -reason for seeking the SW -background on suspect Mission -address -suspects -evidential material sought Execution -timings -method of entry -roles -obligations -managing suspects searching, recording evidential material -assisting vulnerable people -risks and safety Administration -travel to and from the place to be searched -timing of the SW -recording of evidential material seized Communication -cell numbers and radio channels -debrief -before and during SW
Person in charge of briefing should
- ensure all required staff are present
- reinforce verbal information given with visual prompts
- use maps, charts, diagrams, photographs
- provide copies of all important documents
- ensure all staff present are clear of roles
- identify and advise staff of what they can record in their notebooks during briefing
- identify risks and mitigation
- issues relating to CHIS
s 121
stopping vehicles for search (either SW or warrantless power)
s 122
moving vehicles for search/safekeeping
s 123
seizure of items in plain view
You have RGTB that you could have seized the item under a SW or other search power
s 112
items of uncertain status may be seized
You may remove items for examination or analysis off-site to determine if you can seize them lawfully
The item must be in scope of the original search
Obligations - entry
Identify yourself by name or unique identifier
Provide evidence of identity if not in uniform
State the name of the Act ad reason for your search
Announce your intention to enter and search
Provide a copy of search warrant
s 125 obligations
Identify yourself by name and unique identifier
Advise the person of the 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
Powers when searching a person
Detain the person
Use reasonable force
Search any item
Seize anything
s 127
Enter any place to locate the vehicle to execute a SW if you have RGTB that the vehicle is there
Matters to consider before granting approval for Production Order
The grounds for applying for a production are met
The resource benefit of making an application is advantageous to Police and the investigation
The information sought does not make unreasonable or unnecessary demands on the telecommunications provider whom the order is against particularly if forward looking documents
New Media Organisation approval
Obtain approval from a Police Executive member or a district commander
Grounds for applying for Production Order
RGTS that an offence that you could apply for a SW for has been, is being or will be committed and
RGTB that the documents sought constitute evidential material in respect of the offence and are in the possession or under the control of the person against whom the order is sought or will come in to their possession or under their control.
Oral application for Production Order
Requiring a written application would result in delay that would compromise the effectiveness of the search and
The question of whether the order should be issued can be properly determined on the basis of an oral communication or personal appearance and
All required information is supplied to them.
If oral application is allowed:
- issuing officer must record the grounds of application asap
- the applicant must complete the application form asap and within 24 hours
Hearsay evidence in applications
it can be used to outline the grounds on which the application is made, if it is highly reliable.
Consider
-sufficient information to prove reliability of what has been stated
-the informants reliability and whether they have given reliable information in the past
-whether the information has been confirmed by other means
Purpose of surveillance
Observing and any recording of that observation, of people, vehicles, places and things
Ascertaining (tracking) the location of a thing or person or whether a thing has been interfered or tampered with
Intercepting a private communication
What is a surveillance device?
A visual surveillance device
An interception device
A tracking device
Visual Surveillance Device
means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment, or other device that is to observe, or to observe and record private activity but does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
s 46
Activities for which surveillance device warrant required
Exception - situation of emergency or urgency and activities that do not require a warrant
Private premises
Means a private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises
Non-private premises
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
Not all parts of hospital and bus stations are non-private
Such as theatre, consulting rooms, office area, staff meal room
Private communication
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 in the communication but does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without the express or implied consent of any party to do so.
Trespass suveillance
Surveillance that involves trespass to land or goods. Occurs the moment an officer steps on to private property without consent
Curtilage
means the land immediately surrounding a house or dwelling, including any closely associated buildings and structures but excluding any associated open fields beyond.
Curtilage limitation (timeframes)
3 hours in any 24 hour period or 8 hours in total
Intercept
in relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communication either when it is taking place or while it is in transit.
Inteception device
means any electronic, mechanical, electromagnetic, optical, electro-optical instrument, apparatus, equipment or other device that is used or is capable of being used to intercept to record 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.
Surveillance device warrant threshold
offences punishable by 7 years imprisonment
identified Arms Act 1983
identified Psychoactive Substances Act 2013 offences
Voluntary Oral Communication
communication between one or more persons where at least one of the party in the communication gives their consent for the communication to be recorded.
Tracking device
Means a device that, may be used to help 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, tempered with, or in some way dealt with but
does not include a vehicle or other means of transport
May be authorised to use for EM of any offence punishable by imprisonment.
Used by specialist squads only
Two ingredients for emergency surveillance
Entitled to apply for SDW
Impracticable in the circumstances to apply
Surveillance without warrant in situations of emergency …. What is the threshold?
-Offence punishable by 14 years imprisonment
-Use of device would obtain evidential material
an arms act offence
—or a person by reason of their physical or mental condition is incapable of having proper control of Arms or may kill or cause bodily injury to any person
—or that under Domestic Violence Act 1995 - protection order or PSO is in force
—or there are grounds to make a protection order application against him/her
-likely to cause injury or serious property loss/damage and surveillance is necessary to prevent offendng
-presenting risk to life and safety and surveillance is necessary as an emergency response
Timeframe for emergecny surveillance
48 hours maximum
Duty to report DI unless…
the immediacy of the situation does not allow for prior planning and approval from a DI
statutory criteria is met
an opportunity arises to obtain EM that would otherwise be lost if not taken at the time
SDW maximum period of time
60 days
