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.
