Search Introduction Flashcards
What are the learning objectives of the ‘Search Introduction’ chapter that you need to be able to demonstrate understanding of?
- The key terms and definitions of contained in the
Search and Surveillance 2012 Act. - How to meet your objectives and obligations under
the Act. - How to practically apply the legislation and procedures.
Purpose of the Act.
In Section 5 of the Search and Surveillance 2012 Act it explains that the purpose of the act is 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.
The Act achieves this by what three points?
S+S 2012 Act Section 5
5(a): Modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies; and
5(b): Providing rules that recognise the importance of the rights and entitlements affirmed in other enactments including the:
- New Zealand Bill of Rights Act 1990
- Privacy Act 1993
- Evidence Act 2006
5(c): Ensuring investigative tools are effective and adequate for law enforcement needs.
How are Police required to meet the objectives and obligations of the Search and Surveillance 2012 Act when carrying out;
Entries, Searches, Seizures, Road Blocks and Stopping Vehicles?
Police will meet the objectives and obligations by:
- Ensuring they have lawful authority to conduct such
activities and exercise any other incidental power in
relation to those activities, including the use of force. - Conducting risk assessments when planning the
exercise of those and actions to mitigate risks
to protect the safety of the public and the employees
carrying out the Acts powers. - Only seizing what Police are entitled to seize.
- Provide appropriate announcements and identification
in the exercise of those powers. - Satisfy requirements detailed in the Act, for example;
Notice and Inventory requirements after Search or
Seizure.
Explain what RGTS means and give an example.
RGTS is: - Reasonable Grounds To Suspect
It is: - Having a sound basis for suspecting that a
situation or circumstance exists.
Example:
- You enter a house or vehicle, or search a person
because you SUSPECT an offence has been, is
being, or is about to be committed there.
Explain what RGTB means and give an example.
RGTB is: - Reasonable Grounds To Believe
It is: - Having a sound basis for believing that a
situation or circumstance exists.
Example:
- You enter a house or vehicle, or search a person
because you BELIEVE that a search will find the
evidential material you are looking for.
When you have formed a belief or suspicion what must you do?
You must:
- Be able to clearly describe your ‘reasonable grounds’
for holding the belief or suspicion. - Record your reasonable grounds for using a search
power in your notebook; this is your ‘decision log’.
Be aware you may be required to:
- Report 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 and Reasonable
Under the Search and Surveillance 2012 Act a LAWFUL search is one that is conducted by what 3 options?
A Lawful search is one conducted with a:
- Search Warrant
- Warrantless Search Power
- Person’s Consent
REASONABLE
Under the Search and Surveillance 2012 Act a REASONABLE search is one that is what?
A Reasonable search is one that:
- Complies with Section 21 of the Bill of Rights Act 1990
And considers such factors as:
- The nature of the search.
- How intrusive the search is.
- Where and when the search takes place.
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.
When you establish on RGTB that applying for a search warrant is not practicable what questions must you consider?
- Is applying for a search warrant practicable in the circumstances?
Considerations on whether applying for a search warrant is practicable are:
- Is there time to apply for and gain approval for a
search warrant? - Can the scene be secured under Section 117 of the S+S
2012 Act? - Are there reasonable resources, including number of
staff, available to minimise risk and ensure safety? - Is the evidential material at risk?
- The location of the search and who may be present.
Remember to record this appreciation in your decision log.
Search Options
If it is not practicable in the circumstances to apply for a search warrant what may be 2 other options available to you?
If a search power is available:
- Search using a Warrantless Search Power.
If you do not have grounds to apply for a search warrant or to use a warrantless search power:
- Search by Consent
Be mindful of:
- The additional rules required by a consent search.
- If you do not have consent you CANNOT search.
Why is it beneficial to use a Search Warrant?
Because using a search warrant:
- Ensures judicial oversight.
- To search by warrant requires participation in an end to
end process. - Provides greater protection for Police and the public
- The search warrant application process provides a
series of check and balances. - Requires recording and reporting results.
- The process moves from initial approval to application,
authorisation, execution and on to final reporting of
search warrant outcomes.
Search by Consent
- Section 91 to 96 of S+S 2012 Act cover consent
searches.
If you do not have a warrant or a warrantless power of search then a consent search may be available to you.
Before conducting a search by consent you must determine that the search is for one of 4 reasons, what are they?
A request for a consent search must be for one or more 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 what must you advise the person from whom the consent is sought?
You must advise the person:
- Of the reason for the proposed search; and
- That they may consent or refuse to consent to the
search.
A person who consents to a search of a themselves, place vehicle or thing in their control
may withdraw their consent at any time.
If this occurs what must you do?
If a person withdraws their consent you must:
- Stop the search immediately.
Unless:
- You can invoke a warrantless search power to continue
the search.
What are the ‘good practice’ requirements for requesting a consent search ?
- Record your grounds for requesting a consent search.
(Decision log) - Make notes about the search itself in your notebook.
What are the ‘other rules’ regarding a consent search ?
The ‘other rules’ pertain to age of the person:
- A person under 14 years of age is UNABLE to consent
to the search of a place, vehicle or other thing.
Exception:
- UNLESS they are found driving with no passenger of or
over 14 years of age with authority to consent to the
vehicle’s search.
Note: A consent search does not require reporting under Search and Surveillance Act requirements.
What is Evidential Material and the 2 categories that define it?
Evidential Material is:
- Evidence of the offence, or
- Any other item of relevance to the investigation of the
offence.
The 2 categories that define ‘evidential material’ are:
- Tangible: Something that may be touched.
- Intangible: Unable to be touched. Having no physical
presence.
Section 97 of the Search and Surveillance Act 2012 provides examples of: ‘Intangible Things’.
Name two examples.
Two examples of ‘intangible things’ are:
- An email address.
- Access information to an Internet Data Storage
Facility.
One consideration of many to make when deciding to whether to use a warrantless search power is the possibility that the evidential material could be subjected to CADD.
Explain what CADD is and give an example for each of its four parts.
C: Concealed.
- e.g: Burying, hiding in an other place, removing items.
A: Altered.
- e.g: Changing or removing serial numbers from stolen
property in an attempt to disguise it.
D: Damaged.
- e.g: Cutting out the firewall of a stolen vehicle to
remove an identifying feature.
D: Destroyed.
- e.g: By consuming; food, alcohol, drugs, or by burning
clothing.
Obligations are actions that must be carried out when certain powers are used.
BEFORE initial entry when searching a place, vehicle or other thing, you must comply with the obligations set out under Section 131 of the Search and Surveillance Act 2012.
What are the obligations that you must cover?
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: When you have detained a person for the purpose of a search you must give them their Bill of Rights caution.
Note: There are specific exceptions to the ‘providing notice’ requirements.
When you use a warrantless search power what obligations must you also provide as your reasons for your search?
You must also:
- Provide copy of the search warrant or warrantless
search power (Pol 1275) and a inventory of items
seized. - Provide a report for your use of certain powers
(Section 169). - Consider ‘privilege’ (Sections 136 to 147).
What are the exceptions to the identification, intention and notice requirements of Section 131?
The person exercising the search power is not required to comply with subsection (1) of Section 131 if they have RGTB that:
- No person is lawfully present in or on the place,
vehicle or other thing to be searched, or
Compliance with subsection 1(a) would:
- Endanger the safety of any person; or
- Prejudice the successful exercise of the entry and
search power; or - Prejudice ongoing investigations.
What can you do if a person refuses you entry when you are exercising a search warrant or warrantless search power to search a place, vehicle, or other thing?
You may use reasonable force to enter if the person refuses entry or does not allow entry within a reasonable time following a request.
Consider: Arresting for obstruction.
What if there is no one at the place where the search is to be conducted?
If you have RGTB that there is no one lawfully present you may:
- Use reason able force to enter the place, vehicle, or
other thing to be searched.
If the occupier of the place or person in charge of the vehicle is not there, what must you leave and how long do you have to comply with this obligation?
- You must leave a copy of the search warrant.
Or, in the case of the exercise of a warrantless search power you must leave:
- A search notice; POL 1275, and
- An inventory of items seized; POL 268
This must be done ASAP after the search and MUST be done within 7 days of the completion of the search.
Note: There are circumstances that provide exceptions
to this.
S+S 2012 Act, Section 110, explains what every search power authorises the person exercising it to do.
What does Section 110 authorise you to do when searching a place, vehicle, or other thing with or without a warrant?
Section 110 authorises you to:
- 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 the 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, or part of document, that may
lawfully be seized. - Access a computer system or other data storage
device. - Copy any intangible material e.g. computer data.
- Take photographs, sound and video recordings, and
drawings.
Section 116 allows you to:
Secure a place, vehicle, or other thing searched,
Any area in or on that place, vehicle, or other thing, or Anything found in or on that place, vehicle or other thing.
If your search is impeded by any person what does Section 116 also give you the power to do?
Under section 116 if your search is impeded by any person, or, you have RGTB that any person would obstruct or hinder your ability to search, then you can:
- Exclude that person from the place, vehicle, or other
thing being searched, or - Exclude that person from any area in or on the place or
vehicle, and - Give reasonable direction to that person.
What does Section 118 give you the power to do?
To detain any person for the purpose 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.
At the commencement of the search, or
Who arrives at the pace or stops at, or
Enters, or tries to enter, the vehicle while the search is being carried out.
You may detain for any period that is reasonable but not for longer than the duration of the search.
Reasonable force may be used for the purpose of effecting and continuing any detention under subsection (1).
What does Section 119 give you the power to do?
Powers of search by person who has power of arrest.
Section 119 gives you the power while searching a place or vehicle to search any person:
- Found at the place,or
- In or on the vehicle, or
- Who arrives at the place, or
- Stops at, or
- Enters, or
- Tries to enter, or
- Get onto the vehicle.
Who you have RGTB has evidential material that is the object of the search on their person, or
Who you have RGTS is in possession of a dangerous item that posses a threat to safety, and
Immediate action is needed to address that threat.
What does Section 120 give you the power to do?
I you are in ‘fresh pursuit’ of a person and have 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 for the relevant evidential
material.
What does Section 121 give you the power to do?
- Stop a vehicle.
- Conduct a search under a power to search without a
warrant
IF:
- Satisfied that there are grounds to search the the
vehicle - He or she is satisfied that the warrant has been
issued and is in force
Section 131 obligations apply.
If a person resists a search use the AWOCA process.
Work through AWOCA to warn the person and arrest them for obstruction if necessary.
You can then carry out a Section 85 (rub down) search or Section 88 (warrantless search of arrested or detained person) search.
What is AWOCA?
A: Ask - greet the person, identify yourself and ask them
to comply with your search.
W: Why - give the reasons for your actions, intention to
search under the S+S Act 2012 based on your
belief/suspicion.
O: Options - present options: allow search or, be
arrested for obstruction.
C: Confirm - confirm that the person understands the
options.
A: Action - take action: arrest for obstruction.
Privileged material.
Privilege allows the holders of particular information to refuse to disclose this information which is recognised under the Search and Surveillance Act as ‘privileged’
When does ‘privilege’ not apply?
No privilege applies if the information is, made, received, compiled or prepared for dishonest purpose or to enable or aid any person to commit an offence.
Recognised privileged material includes material gained through communication with who?
- Legal advisers
- Ministers of religion
- Medical practitioners
- Clinical psychologists
- Informers (informants)
- Journalists
What are the set procedures that you must follow when a search involves privileged material held by a specified person?
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. - Complete a POL268 listing all the documents seized
and - Show this to the person present
- Invite them to check the accuracy of the inventory
- Leave them a copy of the POL268
After a specified person or their representative has made a claim of privilege what must they provide you as soon as practicable?
They must provide you with a list of the things (such as documents) which they claim are privileged.
What can a specified person or their representative do before you seize a document or item?
They can:
- Make a copy of any document.
- Object to the seizure of any document.
If you are searching (with or without a search warrant) and have RGTB that anything discovered during the seach may be privileged what must you do?
You must:
- Provide the person an opportunity to claim privilege.
If you receive or are expecting to receive a claim of privilege what must you do?
You must: - Secure the thing subject to privilege - Stop any search or examination of it - Stop any investigation in reliance of the subject of privilege
Note:
Should no claim of privilege be made, or, a claim is withdrawn, or, the search is in accordance with the directions of the court determining the claim of privilege, your search of the material and investigation into can continue.
What are the learning objectives of the ‘Search Warrants’ chapter that you need to be able to demonstrate understanding of?
- What a search warrant allows.
- Search warrant authorisation.
- Issuing officer conditions and reporting.
- Pre-search risk assessment.
- Reporting search warrant outcomes.
Search warrant process overview.
What are the 7 key steps in the 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.
When considering whether applying for a search warrant is practicable, remember that in certain circumstances, with supervisor approval, you can do what?
- Apply for a search warrant orally.
(Remember to keep notes of the content of the oral
application.) - Apply for a search warrant without approaching an
issuing officer in person (by using the phone). - Secure a scene while you apply for a search warrant
for a maximum period of 6 hours (Section 117).
Note:
If oral approval is sought, you must make an online application in the Search and Surveillance system as soon as possible to back-capture the required information.
Before making an on-line application for a search warrant you must do what 4 things?
You must:
- Be sure that there are:
- RGTS that an offence punishable by imprisonment
has been, will be, is being, or is about to be
committed, and - RGTB that the search will find evidential material in
respect of the offence in the place, vehicle, other
thing or facility.
- RGTS that an offence punishable by imprisonment
- Have checked the target/s history in NIA for other
search warrant applications/outcomes. - Have assessed the risks associated with executing the
search warrant. - Have obtained initial approval from a supervisor at or
above the rank of sergeant to proceed with the on-line
application.
Risk Assessments
Any search is inherently risky, these risks must be: Identified, Assessed, and Considered when planning how you execute the search warrant.
The risks must be assessed before the search warrant application is approved.
How do you do this?
By completing:
- A Planned Action Risk Assessment, and
- CARD prompt
This form can be found in Police Forms under Search and Surveillance.
When completing a Planned Action Risk Assessment and
CARD prompt to assess risk what process will you apply?
You will apply the TENR process to assess the:
- Threat
- Exposure
- Response (measure to reduce risk)
- Necessity
Of the risk involved in the search warrant application.
Section 117
When a search warrant application is pending and you have RGTB that evidential material is subject to CADD or removal what can you do under the powers of Section 117?
Under Section 117 you can:
- Enter and secure a place, vehicle or other thing, and
- Secure any item found there, and
- Direct any person to assist with entry and securing the
place, or vehicle, or securing items in it.
Remember:
Section 117 authorisises the securing of the address until a search warrant is obtained. It is NOT a search power.
The powers conferred by Section 117 (1) may be exercised until the first of what 3 situations occur?
(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 thing.
(c) The application for a search warrant is refused.
Who can issue a search warrant?
Issuing Officers are the only people who may issue a search warrant.
An Issuing Officer may be a:
- District Court Judge
- High Court Judge
Or,
Any person authorised by the Attorney General such as a:
- Justice of the Peace
- Community Magistrate
- Registrar
- Deputy Registrar
What 2 conditions must the Issuing Officer be satisfied have been met before authorising your search warrant application?
The Issuing Officer must be satisfied that the search warrant application clearly shows:
- RGTS an offence punishable by imprisonment has
been, will be or is about to be committed. - RGTB that the search will find evidential material in
respect of the offence in the place, vehicle or other
thing.
What restrictions can an Issuing Officer put on a search warrant?
An Issuing Officer can:
- Restrict the time when a search warrant can
reasonably be executed. - Require the occupier or person in charge of a place to
provide reasonable assistance to the officer executing
the search warrant. - Require a report on the search warrant within a
specified time.
When the Issuing Officer refuse the search warrant application what should you do?
- Record the Issuing Officers reasons for refusing to
sign. - Consider the issues raised and if possible re-draft the
application, ensuring that you have addressed these
issues. - Re-submit the application to the same Issuing Officer.
If the issues raised by an Issuing Officer in regards to a search warrant application cannot be addressed what can you do?
- Make further enquiries to support (or otherwise) the
application. - Consider whether to continue your investigation
without conducting a search. - If the reasons for not signing the search warrant do not
seem justified, submit a report to Legal Services for
direction.
Who may execute a search warrant?
- The person to whom it is directed or any constable.
How long is a search warrant valid for?
As specified by the Issuing Officer:
- No more than 14 days from the date of issue, or
- No more than 30 days from the date of of issue.
(If you have justified why this is necessary and the
Issuing Officer is satisfied.)
When can a search warrant 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 search warrant considered executed?
When you, or anyone assisting you:
- Have seized the evidential material specified in the
search warrant, or - Leave the place, vehicle or other thing to be searched
and do not return within 4 hours.
How often can a search warrant be executed?
- Once, unless
- More than one execution is applied for, justified and
authorised in the search warrant.
Note: You must detail the reason for the multiple entries in the search warrant application.
Risks involved in executing the search warrant will have been identified when you completed the Planned Action Risk Assessment and CARD prompt for the application process.
However, risk assessment is an ongoing process.
When preparing a search warrant execution plan what must you do?
- Review and re-assess the identified risks.
- Work with others to identify and consider any further
risks. - Pan how to manage and minimise any identified risks.
- Determine how risk management will be
communicated in your search warrant briefing.
When you execute a search warrant what notices are you obliged to provide under Section 131?
- A copy of the search warrant, or
- A POL1275 notice of search in the case of a
warrantless search power being exercised. - An inventory of items seized, POL268.
(If not at the time then within 7 days.)
An application to postpone the notice obligations under Section 134 can be made to a judge.
What are 2 examples of a situation that would qualify as a reason to make a Section 134 application?
When providing a copy of the search warrant or inventory would:
- Endanger the safety of any person, or
- Prejudice on-going investigations.
When should an application to postpone under Section 134 be made to the Judge?
- At the time of the search warrant application, or
- Before 7 days has passed after the search warrant
execution.
Note:
A Judge may postpone these obligations for a period not exceeding 12 months. This would apply to a long term investigation.
The safety of staff and any other person is of primary concern when executing a search warrant.
When executing a search warrant what may you be required to use reasonable force for?
- Entering a place, vehicle or other thing (Section 131)
- Search, on property only, and seize (Section 110)
- Carry out a search of a person (Section 125)
Remember to use AWOCA and TENR as required.
All staff involved in a search warrant need to be fully briefed.
Following the GSMEAC model allows all the key points to be covered.
What does GSMEAC stand for?
GSMEAC is a briefing model and stands for:
- Ground: address, area of search, neighbours
- Situation: reason for warrant, background of targets
- Mission: address, suspect, evidential material sought
- Execution: timings, entry, responsibilities, risk
management - Administration: travel, timings, record keeping
- Communication: method
What are the obligations when executing a search warrant?
- Identification and notice requirements when searching
places, vehicles and other things: Section 131 - The rules for searching people: Section 125
- Powers incidental to search: Section 110
- Reporting: Section 169
Remember:
Acronym- ‘NAR’ (Name, Act, Reason) and intention to
enter and search.
Have Police identification if not in uniform.
What additional powers are available to you when executing a search warrant?
When executing a search warrant you have the following available powers as long as the RGTS, RGTB and any other requirements of the powers are met:
- Securing a place, vehicle or other thing to be searched
and excluding any person person from there: Section
116 - Powers of detention incidental to search of places or
vehicles: Section 118 - Powers of search by a person who has the power of
arrest: Section 119 - Stopping vehicles for search: Section 121
- Moving vehicles for search/safekeeping: Section 122
- Seizure of items in plain view: Section 123- Items of
uncertain status may be seized: Section 112
What are your obligations before, or when, you enter a place or vehicle to execute a search warrant?
You must:
- Identify yourself by name or unique identifier (QID).
- Provide evidence of identity if not in uniform.
- State the name of the Act and the reason for your
search. - Announce your intention to enter and search.
- Provide a copy of the search warrant.
- Provide an itinerary of items seized.
Remember:
Where occupants are detained for the purpose of the search you must advise them of the caution (Bill of Rights).
