Search and Surveillance/Bill of Rights Flashcards
What is a tracking device under the S&S Act?
A device used to ascertain
- The location of a thing or person or
- Whether a thing has been opened, tampered with or dealt with
Does not include a vehicle
What is an interception device under the S&S Act?
Device used or is capable of being used to intercept or record a private communication
Does not include hearing aids correcting hearing to normal levels
What is a visual surveillance device?
Device used or capable of being used to observe or record a private activity
Does not include glasses/contacts correcting vision to normal levels
What is the purpose of the S&S Act?
Facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner consistent with human rights
What powers are available under the S&S Act to search a person immediately post arrest?
Rubdown search (S85 -87)
Warrantless search (S88)
Looking for items used to harm any person or facilitate their escape
What is Section 11 S&S?
A search conducted on someone who is about to be locked up. May seize any money or property located on that person.
Can generally only execute once
What is locked up?
Placed behind a locked door/room etc eg into a cell, into the van
Can you search a person again once they’ve been locked up?
Yes if they were not searched prior to being locked up or
They’ve been in close proximity to someone who was not locked up eg visitors or
There are reasonable grounds to believe that they have something in their possession that may be used to harm someone
When is a search warrant required?
Unless impractical you must obtain a warrant before searching a place, vehicle or things
Warrantless powers come from S&S Act but are subject to the warrant preference rule
What are the grounds for a search warrant?
- Suspect an offence
- Believe that evidential material relating to the offence will be located at/in a place/vehicle/thing
(These grounds do not apply in respect to gang conflict warrants)
Who can apply for a search warrant?
Constables. Other officials can apply for warrants relating to specific legislation however private individuals cannot apply for a warrant
What do you need prior to applying for a warrant?
- Supervisors approval
- Planned Action Risk Assessment and CARD prompt must be submitted to supervisor (PARACARD)
How do you apply for a search warrant?
Using the online Search and Surveillance system for a written warrant
Via phone or in person for an oral warrant
When are oral warrants allowed?
- A written application would result in a delay that would compromise the search AND
- The question of if the warrant should be issued can be determined orally AND
- All the required information is supplied to the issuing officer
Why do oral warrants need to be back captured on the online Serach and Surveillance system?
- Target details are recorded and can be seen for future applications
- Fulfils statutory reporting obligations
What is the process for completing a written warrant application?
- Obtain initial approval from Sgt or above
- Ensure you have a NIA case number
- Assess risks (PARACARD)
- Assess community impact (Community Impact Assessment)
- Complete application
- Complete deconfliction (multiple warrants planned for same address)
- Check application history (system will advise previous OCs who can share info if required)
- Complete NIA checks for other applications not in the S&S system
- Seek online approval from supervisor
- Print/sign warrant
- Take to Court/issuing officer and seek issue of warrant
Who is a Police informant according to S&S Act?
Any person who provides written or verbal information to Police, is not just limited to CHIS.
Informants identity must be protected provided that they are informants rather than witnesses.
An issuing officer may not seek any details of an informant other than to assess credibility of the informant and whether there is a proper basis for issuing the warrant
What is S117 of the S&S Act?
Police can enter and secure a place/vehicle/thing if a warrant application is to be made and there is a belief CADD may occur
- For up to six hours or
- Until warrant is granted/declined
Anything you observe while securing place/vehicle/thing can be included in the warrant application
Do you need a warrant to conduct surveillance without a surveillance device?
No however if you need to trespass to conduct surveillance then you will need a search warrant for that place
If you intend to use a tracking device and an interception device do you need separate warrants?
No its possible to do a single application and obtain a single warrant
What are the most important rules for Police arising from the NZBORA
- When investigating an offence you may ask questions however you must not suggest that it is compulsory for that person to answer
- If you want to question someone regarding an offence and you have sufficient evidence to charge them then you must caution them
- If you arrest or detain someone you must give them their rights even if they’ve had them prior to arrest
- There is no power to detain a person for questioning or to pursue enquiries
Who does the NZBORA apply to?
Basically Govt and the state
What are Sections 21 - 25 NZBORA
21 - protection against unreasonable search and seizure
22 - Protection against arbitrary arrest and detention
23 - Rights of persons arrested
24 - Rights of persons charged with an offence
25 - Minimum standards of criminal procedure
What is a “search” as per S21 NZBORA?
Conscious act of state intrusion where an individual would have a reasonable expectation of privacy
A search is not
- Checking a bikes serial number
- Asking a person to hold out their hands for inspection
- Using a torch to check a vehicle
- Seeing into a bag in a vehicle in a public place
