Search Introduction Flashcards
What must you do to comply with the objectives and obligations under the Act?
- ensure it has a lawful authority to conduct such activities and exercise any other incidental power in relation to those activities, including the use of force
- conduct risk assessments when planning the exercise of those powers and take action to mitigate risks to protect the safety of the public and employees carrying out the Act’s powers
- only seize what Police are lawfully entitled to seize
- provide appropriate announcements and identification in the exercise of those powers
- satisfy requirements detailed in the Act (e.g. notice and inventory requirements after search or seizure).
Reasonable Grounds to Suspect (RGTS)
Reasonable grounds to suspect (RGTS) means having a sound basis for suspecting that a situation or circumstance exists.
Example:
You enter a house or vehicle because you suspect an offence has been, is being, or is about to be committed there.
Reasonable Grounds to Believe
RGTB
Reasonable Grounds to Believe (RGTB) means having a sound basis for believing that a situation or circumstance exists.
Example:
You enter and search a house or vehicle, or search a person because you believe that a search will find the evidential material you are looking for.
Reasonable Grounds
When you have formed a belief or suspicion you must be able to clearly describe your reasons – your reasonable grounds – for holding the belief or suspicion.
You must:
• record your reasonable grounds for using a search power in your notebook. This is your decision log.
Be aware that you may be required to:
• report on your decision to use a power and your grounds for using it
• justify your use of a power in court or in other formal proceedings.
Lawful Search
Under the Search and Surveillance Act a lawful search is a search that is conducted:
• with a search warrant, or
• under a warrantless search power, or
• with the person’s consent
Reasonable Search
Under the Search and Surveillance Act a reasonable search is a search that:
• complies with section 21 of the New Zealand Bill of Rights Act
and considers factors such as
• the nature of the search
• how intrusive the search is
• where and when the search takes place.
Practicable in the circumstances
Before considering any search, you must think about whether applying for a search warrant is practicable in the circumstances.
If it is at all practicable to do so then you should apply for a search warrant even if a warrantless power is available.
A decision that applying for a search warrant is not practicable must be based on RGTB that it is not practicable to apply for a search warrant in the circumstances.
When you are thinking about what is practicable consider questions such as:
• is there time to gain approval and apply for a search warrant
• can the scene be secured (under section 117)
• are reasonable resources (including number of staff) available to minimise risk and ensure safety
• is the evidential material at risk
• location of the search and who may be present
Search options other than Search Warrant
- Search using a warrantless power – if a warrantless power is available to you, then you have a power of search without a warrant.
- Search by consent – if you do not have grounds to apply for a search warrant or to use a warrantless power, then you may request a search by consent. A consent search is not the most desirable action as there are additional rules that apply to consent searches and these rules must be followed if the search is to be lawful.
Why use a search warrant?
- Ensures judicial oversight
- Provides greater protection for Police and the public
- Requires recording and reporting of results
Search by consent
Sections 91- 96 of the Search and Surveillance Act cover consent searches.
Remember: If you have a search power available to you (either warrant or warrantless) then you should use that power. If you do not, then a search by consent may be available to you.
Before conducting a search by consent, you must determine that the search is for one of the following reasons:
• 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
Undertaking a consent search
Before conducting a search by consent, you must advise the person from whom consent is sought:
• of the reason for the proposed search; and
• they may consent or refuse to consent to the search.
A person under 14 years old 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).
Under the Search and Surveillance Act reporting requirements you do not have to report a consent search.
Tangible evidence
According to the Oxford Dictionary, tangible means something that may be touched.
Intangible evidence
According to the Oxford Dictionary, intangible means ‘unable to be touched; not having physical presence’.
CADD
Concealed
By burying or hiding items in another place or removing items
Altered
By changing or removing serial numbers from stolen property in an attempt to disguise it
Damaged
By cutting out the firewall of a stolen car to remove an identifying feature
Destroyed
By consuming food, alcohol or drugs, burning clothing
Obligation: Identification
When searching a place, vehicle or other thing, you must comply with the obligations set out under section 131.
Your obligations cover identification, intention, reason and notice requirements whereby before initial entry you must:
• identify yourself by name or by unique identifier (QID)
• announce your intention to enter and search
• state the name of the Act
• give notice by providing a copy of the search warrant
• Remember that when you have detained a person for the purpose of a search you must caution them (Bill of Rights).