Search & SURVEILLANCE Flashcards
Purpose of the Act
Section 5 states that the purpose of the Act is the 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 by:
○ 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 recognize the importance of the rights and entitlements affirmed in other enactments.
○ Ensuring investigative tools are effective and adequate for law enforcement needs.
Reasonable grounds to suspect
RGTS
Reasonable grounds to suspect 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 means having a sound basis for believing that a situation or circumstance exists.
Example:
You enter and search a house or vehicle was search a person because you believe that a search will find the evidential material you’re 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 your decision to use a power and your grounds for using it
•justify your use of a power and Court or informal proceedings.
Lawful and reasonable
Under the search and surveillance act a lawful search is a search that is conducted:
- with a search warrant or
- under a warrant of search power or
- with a 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.
Practical in the circumstances
Before considering any search, you must think about whether applying for a search warrant is practical in the circumstances .
If it is it all practical to do so in you should apply for a search warrant even if the warrantless power is available.
It decision that applying for a search warrant is not practical must be based on reasonable grounds to believe that it is not practical to apply for a search warrant in the circumstances.
When you are thinking about what is practical consider questions such as:
- is there a time to gain approval and apply for the 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.
Why use a search warrant?
Using a search warrant:
- Ensures judicial oversight
- Provides greater protection for police and the public
- Requires recording and reporting of results.
To search by Warrant requires participation in an end-to-end process. This process provides series of checks and balances to protect both the police and the public.
The process moves from initial approval to application, authorisation, execution and onto final reporting of search warrant outcomes.
Organisational accountability is maintained by reporting to Parliament and if required to issuing officers.
Power to search a place, vehicle or a thing
Section 110 authorises you to:
• enter and search a 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 and respect to any property for the purpose of carrying out the search and lawful seizure.
• sees anything that is the subject of the search off 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 it’s Handler.
• copy any document, or part of a document, that may be lawfully seized
• access a computer system or other data storage device
• copy intangibles material example computer data
• take photographs, sound and video recordings and drawings.
If your search is impeded by any person or if you have reasonable grounds to believe that any person would obstruct or Hindi or ability to search, then you could use section 116 to:
- exclude that person from the place, vehicle or other thing being search, or any area in or on the place or vehicle
- give any reasonable direction to that person
Additional Powers are available that you can use in your original search power – whether warrantless or warranted:
S 116 - you can secure a place, vehicle or other thing to be searched and exclude any person from there.
S 118 - 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 NZ or on the vehicle and the object of the search.
S 119 - you can search people found when searching places and vehicles if you have reasonable grounds to believe that evidential material that is in the object of the search is on that person or,
If you have reasonable grounds to suspect 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.
S 120 - if you are in fresh pursuit, and with reasonable grounds to believe that relevant evidential material is still on the person, you have the power to enter any place and apprehend the person and search the person or vehicle.
Special rules for searching people
You can search any item that the person is wearing, carrying, has in their physical possession or a media control.
Any search you undertake must be conducted with decency and sensitivity. That must also be conducted in a manner that affords to the person being searched a degree of privacy and dignity at is consistent with achieving the purpose of the search. You can then sees any item that the person is wearing, caring always in their immediate position if that is the item you are searching for (suit section 1251 J) You may also sees any item that may be lawfully seized even if it was not the subject of your search. Remember to promptly provide an inventory of these items.
Detained person tries to leave person arrives at search place
If the person who is detained for the search tries to leave the place or vehicle you can use reasonable force to detain the person to be searched (section 118)
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 seen if you have reasonable grounds to believe the person will obstruct or hinder your Powers (section 116)
- detain that person to determine if there is any connection between them and the object of your search (Section 18)
- search that person if you have reasonable grounds to believe that they may have evidential material on them (section 119)
- search that person if you have reasonable grounds to suspect that they may have a dangerous item that poses a threat to safety and you believe that you need to act immediately to address that threat (section 119 2A and B)
Privileged material
Privilege material allows the holder of particular information to refuse to disclose this information. This information is recognised as quote privileged in quote 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 privilege material includes material gained through communications with:
- legal advisors
- Ministers of religion
- medical practitioners
- clinical psychologists
- informers
- journalists
Privilege practical procedures
There are set procedures when a search involves privilege material held by a specified person.
You must:
• ensure that the person or their representatives is present when the search is undertaken.
• give the person a reasonable opportunity to claim privilege.
As soon as practical after being given opportunity the person must provide you with a list of the things (such as documents) which they claim are privileged .
You must complete an inventory listing all documents seized and show this to the person present and invite them to check the accuracy of the inventory. You must leave a coffee with them.
Be aware that the person may make a copy of any document before you cease it, and they may object to the seizure of any document If you are searching (with or without a search warrant) and have reasonable grounds to believe that anything discovered during the search maybe privileged, then you must provide the person an opportunity to claim privilege.
If you receive offer expecting to receive a claim of privilege secure the thing subject to privilege but not continue the search or examine it. You should not undertake any other investigations in reliance on it unless No Claim of privilege is made, or claim is withdrawn, or the search is in accordance with the directions of the court determining the claim a privilege.
Search warrant process overview
1 gain prior approval 2 gain online approval 3 gain issuing officer authorisation 4 plan and breathe search warrant execution 5 execute search warrant 6 report outcomes 7 file investigation records
Practicable in circumstances?
When considering whether applying for a search warrant is practical, remember that in certain circumstances, with supervisor approval, you can:
- apply for a search warrant orally.
- applying for a search warrant without approaching and issuing officer in person (by using the phone or email)
- secure a scene while you apply for a search warrant for a maximum of 6 hours (section 117)
These options may help you manage the time required to apply for a search warrant where there is a risk of loss of evidential material. They should be considered as exceptions and not used unless other means are not practically available.
Note dash if oral approval is sort, you must make an online application in the search and surveillance system as soon as possible and back capture the required information.
Remember to keep notes of the content of the oral application
Before making an online application
Before commencing to make an application for a search warrant, 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 to the offence in the place, vehicle, other thing or facility. - Have checked the targets history in NIA for other SW applications/ outcomes.
- Have assess 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 online application.
