Search Introduction

Question 1

What is the purpose of the act?

Answer 1

Section 5 states that the purpose of the Act is to:
• Modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies
• Providing rules that recognise the importance of the rights and entitlements affirmed in other enactments
• Ensuring investigative tools are effective and adequate for law enforcement needs.

Question 2

How to comply with the act?

Answer 2

To meet its objectives and obligations when carrying out entries, searches, inspections, productions, examinations, seizures, road blocks and stopping vehicles, Police will:

• 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).

Question 3

What is Reasonable Grounds to Suspect?

Answer 3

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.

Question 4

What is Reasonable Grounds to Believe?

Answer 4

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.

Question 5

What do you do when you have Reasonable grounds?

Answer 5

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.

Question 6

Difference between lawful and reasonable?

Answer 6

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

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.

Question 7

What must you do before undertaking any search?

Answer 7

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
Remember to record this in your decision log.

Question 8

Search options other than Search Warrant?

Answer 8

• 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.

Question 9

Why do we use a Search Warrant?

Answer 9

Using a search warrant:

1. Ensures judicial oversight
2. Provides greater protection for Police and the public
3. Requires recording and reporting of results

To search by warrant requires participation in an end-to-end process. This process provides a series of checks and balances to protect both the Police and the public.

Question 10

When can you search by consent?

Answer 10

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

Question 11

Obligations when consent search is completed

Answer 11

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.

Note: a person who consents to a search of themselves, place, vehicle or thing in their control may withdraw their consent at any time. If this occurs, stop the search immediately, unless you can invoke a warrantless search power to continue 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.

Question 12

What is evidential material?

Answer 12

Evidential material, in relation to an offence or a suspected offence, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.

Tangible
Tangible means something that may be touched.

Intangible
Intangible means ‘unable to be touched; not having physical presence’.

Section 97 of the Search and Surveillance Act provides examples of intangible things, e.g. an email address or access information to an Internet data storage facility.

Question 13

What is CADD?

Answer 13

• Concealed
• Altered
• Damaged
• Destroyed

Question 14

Examples of CADD?

Answer 14

Examples of CADD are:

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

Question 15

Obilgations when searching?

Answer 15

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).

Question 16

Reason for searching and what to supply

Answer 16

If you are using a warrantless search power you must state the reason for your search.

You must also:

• provide a copy of the search warrant or a warrantless search notice to occupier (POL 1275) and provide an inventory of items seized.
• report your use of certain powers – (section 169)
• consider privilege – (sections 136 – 147)

Section 131 states that before or on initial entry into or onto the place, vehicle or other thing to be searched, you must give ‘notice’ to the occupier or person in charge. Giving notice is more than just telling or explaining to the person what you are about to do and why. It includes giving written notice.

Question 17

Exceptions for giving notice and identification?

Answer 17

You are not required to comply with identification, intention and notice requirements on initial entry if you have RGTB that no one is present.

Also, you do not have to comply with the requirements on initial entry if you have RGTB this would:
• endanger any person’s safety
• prejudice the successful use of the entry and search power
• prejudice on-going investigations

Question 18

What if a persons refuses entry?

Answer 18

When you are executing a search warrant or a warrantless power of search of 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.

Question 19

What does section 110 authorise you to do?

Answer 19

Each search power authorises you to use additional powers 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 a document, that may be lawfully seized
• access a computer system or other data storage device
• copy intangible material e.g. computer data
• take photographs, sound and video recordings and drawings

Question 20

What does section 116 authorise you to do?

Answer 20

If your search is impeded by any person or if you have RGTB that any person would obstruct or hinder your ability to search, then you could use section 116 to:

• exclude that person from the place, vehicle or other thing being searched, or any area in or on the place or vehicle
• give any reasonable direction to that person

You can secure a place, vehicle or other thing to be searched and exclude any person from there.

Question 21

What does section 118 authorise you to do?

Answer 21

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.

Question 22

What does section 119 authorise you to do?

Answer 22

• 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 that immediate action is needed to address that threat.

Question 23

What does section 120 authorise you to do?

Answer 23

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.

Question 24

What is AWOCA?

Answer 24

A - Ask – greet the person and identify yourself.
• Ask the person to comply with your search.

W - Why – give the reasons for your actions.
• intention to search under the Search and Surveillance Act 2012
• based on 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

Question 25

Rules when search people?

Answer 25

You can search any item that the person is wearing, carrying, has in their physical possession or immediate control (section 125(1)(i)).

Any search you undertake must be conducted with decency and sensitivity. It must also be conducted in a manner that affords to the person being searched the degree of privacy and dignity that is consistent with achieving the purpose of the search.

You can then seize any item that the person is wearing, carrying or is in their immediate possession if that is the item you are searching for (section 125(1)(j)).

You may also seize any item that may be lawfully seized even if it was not the subject of your search. (section 125(1)(j)). Remember to promptly provide an inventory of these items on the POL268 form.

Question 26

What if someone arrives at the search place?

Answer 26

If someone else arrives at the place or vehicle and starts talking to the person you have detained under section 118 depending on the circumstances you may:

• exclude that person from the search scene if you have RGTB the person will obstruct or hinder your powers (section 116(1)(b)).
• detain that person to determine if there is any connection between them and the object of your search (section 118(1)).
• search that person if you have RGTB that they may have evidential material on them (section 119(1)).
• search that person if you have RGTS that they may have a dangerous item that poses a threat to safety and you believe you need to act immediately to address that threat (section 119(2)(a) and (b)).

Question 27

What is privileged material?

Answer 27

Privilege allows the holders of particular information to refuse to disclose this information. This information is recognised as ‘privileged’ under the Search and Surveillance Act.

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.

Recognised privileged material includes material gained through communication with:

• legal advisers
• ministers of religion
• medical practitioners
• clinical psychologists
• informers (informants)
• journalists

Question 28

What to do when privilege is claimed?

Answer 28

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.

If you receive or are expecting to receive a claim of privilege secure the thing subject to privilege but do not continue to search or examine it. You should not undertake any other investigations in reliance on it unless no claim of privilege is made, or a claim is withdrawn, or the search is in accordance with the directions of the court determining the claim of privilege.