Search & Surveillance Flashcards
Under S5 SS2012, the purpose of the act is to facilitate the monitoring of compliance with the law, investigation, and prosecution of offences. What are the three ways it does this (consistent with human rights values)?
- modernising the law of search, seizure, and surveillance - taking into account the technology and measures to regulate
- 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
In order to comply with the SS2012 Act, what are the 5 things that Police will do to meet their objectives and obligations when carrying out entries, searches, seizures etc.?
- ensure it has a lawful authority to conduct such activities
- conduct risk assessments when planning the exercise of those powers and take action to mitigate risk to protect the safety of the public and staff
- only seize what Police are lawfully entitled to seize
- provide appropriate announcements and identification when exercising powers
- satisfy requirements eg. notice of inventory
When you have formed a belief or suspicion you must clearly be able to describe your reason. How do you do this?
Record your reasonable grounds for using the search power in your notebook. This is your decision log.
What makes a search lawful? (3)
- with a SW
- under warrantless search power
- with the persons consent
What makes a search reasonable? (1-3)
- complies with S21 of the NZ BOR Act and considers factors such as:
- the nature of the search
- how intrusive the search is
- where and when the search takes place
What things do you need to consider when deciding whether or not to apply for a SW? (5)
- is there time to get a SW?
- can the scene be secured under S117?
- are reasonable resources available to minimise risk and ensure safety?
- is the EM at risk?
- location of the search and who may be present
* must record decision log
What are the three main benefits of using a search warrant?
- ensure judicial oversight
- provides greater protection for Police and the public
- requires recording and reporting of results
Organisational accountability is maintained.
Before you can search someone by consent, you must determine the search is for one of four reasons, what are they?
(comes under S92, SS2012 - purposes for which consent search may be undertaken)
- to prevent the commission of an offence
- to investigate whether an offence has been committed
- to protect life or property
- to prevent injury from harm
What must you advise a person whose consent is sought? (2)
- the reason for the proposed search AND
- they may consent or refuse to consent the search
What may a person do after they consent to a search?
Withdraw their consent at any time.
What are two other rules regarding consent searches?
- a person under 14 years 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 the age of 14 with authority to consent to the vehicles search)
- you do not have to report a consent search
S97 gives examples of intangible things. What are they? (2)
- an email address or
- access information to an Internet data storage facility
What is CADD?
Concealed
Altered
Damaged
Destroyed
What are you obligations under S131 before initial entry? (5)
- ID of self
- Intention to enter and search
- State name of the act
- Give notice by providing a copy of the SW OR POL1275 (search notice to occupier)
- if a person is detained, they must be given BOR
When executing a warrantless search power, other than the 5 obligations which cover ID, intention, reason, and notice - what else MUST you do? (3)
- provide POL1275 and 268
- report to use search powers (S169)
- consider privilege (lawyers etc. S136-147)
What obligation ‘notice’ must you provide to the person when executing a search warrant?
Copy of the SW.
What obligation ‘notice’ must you provide to the person when using a warrantless search power?
- Search power being used
- Reason for the search
- POL1275 (search notice to occupier)
When are you not required to comply with identification, intention, and notice?
- RGTB that no one is present
- RGTB this would endanger any persons safety
- RGTB this would prejudice the successful use of the entry and search power
- RGTB this would prejudice the ongoing investigation
If there is no one at the place/vehicle/other thing that is being searched, what MAY and what MUST you do?
MAY:
- use reasonable force to enter
MUST:
- leve a copy of the SW or POL1275 AND
- 268
- within 7 days
When must you provide the copy of the SW or POL1275 by?
Within 7 days of the search.
What is S110 SS2012?
Search powers
Every search power authorises the person exercising it—
(a) to enter and search the place, vehicle, or other thing
(b) to request any person to assist with the entry and search
(c) to use any force in respect of any property that is reasonable and any lawful seizure
(d) to seize anything that is the subject of the search or anything else that may be lawfully seized
(e) to bring and use any equipment found on the place, vehicle, or other thing
(f) to bring and use a trained enforcement dog and handler
(g) to copy any document, or part of a document, that may lawfully be seized
(h) to use any reasonable measures to access a computer system or other data storage device located
(i) copy intangible material
(j) to take photographs, sound and video recordings, and drawings
What is S116 SS2012?
Securing place, vehicle, or other thing to be searched
(1) The person carrying out a search may
(a) secure the place, vehicle, or other thing searched..
(b) exclude any person from the place, vehicle, or other thing searched, or give any other reasonable direction to such a person, if the person carrying out the search has RGTB that the person will obstruct or hinder the exercise of any power under this subsection.
(2) A person who exercises any power under subsection (1) must..
(a) ID self
(b) name of act and reason for search (unless it is impracticable) and
(c) if not in Police uniform, produce evidence of identity.
What is S118 SS2012?
Powers of detention incidental to powers to search places and vehicles
(1) If any constable or other person exercises a search power in relation to a place or vehicle, they may, 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, detain any person—
(a) who is at or in the place
(b) who arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out.
(2) A person may be detained under subsection (1) for any period that is reasonable, but not for longer than the duration of the search.
(3) A detention of any person commences when they’re told to stay and ends when they’re told to leave
(4) Reasonable force may be used
(5) …
What is S119 SS2012?
Powers of search by person who has power of arrest
- you can search people found when searching places and vehicles if you have RGTB that EM that is the object of that 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 act is needed to address that threat.
What is S120 SS2012?
Powers of search when suspect pursued
If you are in fresh pursuit and with RGTB that relevant EM is still on that person, you have the power to enter any place and apprehend the person and seraph the person or vehicle.
What does AWOCA stand for?
Ask Why Options Confirm Action
What does S125(1)(i) AND (j) SS2012 cover?
(i) You may search any item that a person is wearing, carrying, has in their physical possession or immediate control.
(j) You may seize any item that the person is wearing, carrying, or is in their immediate possession if that is the item you are searching for.
You may also seize any item that may be lawfully seized even if it was not subject of your search.
Under S118(4) SS2012 can you use reasonable force to detain a person to be searched?
Yes
- S118 is Powers of detention incidental to powers to search places and vehicles
If someone arrives at the place or vehicle and starts talking to the person you have detained under S118, what may you do? (4)
- EXCLUDE - that person from the scene if you have RGTB that person will obstruct or hinder your powers (S116(1)(b))
- DETAIN - that person to determine if theres a connection between them and the search (S118(1))
- SEARCH - that person if you have RGTB they have EM on them (S119(1))
- SEARCH - that person if you have RGTS they have something dangerous on them (S119(2)(a) and (b))
What is privileged material? What isn’t privileged material?
Privilege allows the holders of particular information to refuse to disclose this information.
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 who? (6)
Legal advisers Ministers of religion Medical practitioners Clinical psychologists Informers Journalists
If privileged material held by a specific persons is located what must you do? (2)
- ensure that person (or their representative) is present
- give the person reasonable opportunity to claim privilege
List the 7 key steps in the search warrant process.
- gain prior approval
- gain outline approval
- gain issuing officer authorisation’
- plan and brief search warrant execution
- execute search warrant
- report outcomes
- file investigation records
Before making an application for a search warrant, what MUST you do? (4)
- 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 EM will be found - check the targets history
- have assessed the risks associated with executing the SW
- have obtained initial approval from a supervisor
What does TENR stand for?
Threat
Exposure
Necessity
Response (measures to reduce risk)
S117 authorises the securing of the address until a SW is obtained. This power may be exercised until the one of three things happens, what are they?
a) the expiry of 6 hrs from when the power is first exercised
b) the warrant is available for execution
c) the application for the SW is refused
Who can issue a SW?
Issuing officers:
- District or High Court judges
Any person authorised by the attorney general:
- JP
- Community Magistrate
- Registrar
- Deputy Registrar
What are some restrictions an issuing officer may put on a SW? (3)
- restricting the time of execution
- requiring the person in charge of the place to provide reasonable assistance
- requiring a report on the SW within a specified time
What should you do when a SW is refused? (3)
- record the issuing officers reasons for refusal
- redraft the application making sure those reasons are addressed
- resubmit the application to the SAME issuing officer
Who may execute a SW?
Any constable
How long is a SW valid for?
No more than 14 days or
No more than 30 days if you have justified why this is necessary and the issuing officer is satisfied
When can a SW be executed?
Any reasonable time or
At a restricted time required by the issuing officer
When is a SW considered executed?
When you have seized the EM specified in the SW or
Leave the place/vehicle/other thing and do not return within 4 hours
How often can a SW be executed?
Once unless
more than one execution has been applied for
Even though you have completed a PARA CARD (planned action report assessment) prior to executing your SW, risk assessment must be ongoing. In relation to risk, what must you do? (4)
- review and assess the risks
- work with others to ID and consider any further risks
- plan how to manage and minimise any identified risks
- determine how risk management will be communicated in your SW briefing
*this is a stupid question but its a MUST on pg29
How long can a judge postpone S134 obligations (copy SW and 268)?
12 months
What are the key points of GSMEAC?
Ground
- location to be searched
- address and neighbours
Situation
- reason for seeking the SW
- background
Mission
- address/suspect/EM sought
Execution
- timings
- method of entry
- roles
Admin
- travel to and from place
- recording of EM seized
Communication
- cellphone/radio channels
- before/during execution
- debrief
What are the 4 sections that outline the rules and obligations when executing a SW?
S131 - Identification and notice requirements searching place/vehicle/other thing
S125 - Searching people
S110 - Search powers
S169 - Reporting
What does S121 allow you to do?
Stop a vehicle if you intend to search it by executing a search warrant or using a warrantless search power.
What does S127 allow you to do?
Enter a place to locate the vehicle to execute a SW if you have RGTB the vehicle is there.
*note: you’re not required to specify the place. target in the SW is the vehicle.
What is S123?
Items of uncertain status.
- when carrying out a lawful search or if you are lawfully in a place you can remove an item for examination off site to determine if you can seize them lawfully (eg. drugs for analysis or large amounts of documents).
What is S112?
Items in plain view.
- you may seize any item when you are searching or that you observe if you have RGTB that you could have seized that item under a SW or other search power.
What section are Production Orders made under?
S74 SS2012.
How long is a Production Order in force for?
Max 30 days after the order is made.
What are 3 matters to consider before applying for a PO?
- the grounds for the PO are met
- the resource benefits are advantageous to Police and investigation
- the information sought does not make unreasonable or unnecessary demands on the provider
If your PO application is for a news media application, who must you get approval from?
Police executive member in case of PNHQ or a district commander for district matter.
When applying for a PO orally, what 3 things must the issuing officer be satisfied with?
Under S100(3)
- that a written application would delay and compromise the search and
- that the question whether or not the application should issued can be properly determined through oral/in person and
- all required info is supplied to them
If an oral PO is allowed, what must the issuing officer and applicant do?
Issuing officer must record grounds for application and the Applicant must complete the applications capturing the info covered to the IO ASAPracticable/within 24hrs.
In regards to claims arising caused by damage during a SW execution, what details should be put into the report that is sent to the District Commander or National Manager? (7)
- the circumstances of the SW and statutory powers used
- the grounds for execution
- the damage caused
- the outcome of the SW
- details of the owner
- the nature and basis of the claim
- any steps taken by Police or the owner to prevent further loss or damage
In relation to surveillance, what can Police do when lawfully on private premise?
Police can carry out lawful surveillance by means of your unaided observation/hearing/smell. Police can also record by way of audio/visual device of what you can see or hear providing that the device doesn’t enhance your ability to observe or hear.
What is Police surveillance?
A planned and direct activity either open or covert for the purpose of:
- observing and recording
- tracking
- intercepting private conversation
What are 3 types of surveillance devices?
- a visual surveillance device
- an interception device
- a tracking device
Define a visual surveillance device?
interception device—
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing
Define private communication?
(a) means a communication made under circumstances that any party in that communication desires it to be confined to the parties ; but
(b) does not include communication in which any party to the communication expects that communication may be intercepted by some other person without having the express or implied consent of any party to do so
Warrant applications for use of a visual surveillance device for trespass surveillance will only be authorised for obtaining EM for serious offences. What is meant by ‘serious offence’ in this context?
An offence punishable by 7 years imprisonment or more
Define curtilage
The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but not excluding any associated ‘open fields beyond’.
Under S46 - Activities for which surveillance device warrant required, what are the curtilage limitations?
You may observe and record private activity in the curtilage of a private premise for no longer than:
- 3hrs in any total 24hr period or
- 8hrs in total
Define interception in relation to private communication
Includes to hear, listen to, record, monitor, acquire or receive the communication either:
- when it is taking a place or
- while it is in transit
What is an interception device?
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing
A surveillance device warrant will only be authorised for the use of an interception device for gathering EM for what 3 offences?
- offences punishable by 7 years or more imprisonment
- identified arms act 1983 offences
- identified psychoactive substances act 2013 offences
What does voluntary oral communication mean?
It is a communication between one or more persons where at least one party in the communication gives their consent for their communication to be record (S47)
Define a tracking device
(a) means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
(i) the location of a thing or a person:
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but
(b) does not include a vehicle or other means of transport, such as a boat or helicopter
A surveillance device warrant may be authorised for the use of a tracking device to obtain EM for what type of offence?
Any offence punishable by imprisonment
What are the two ingredients under S48 - situations of emergency or urgency?
1) Entitled to apply (You’re entitled to make an application for a surveillance device warrant as the situation is on of serious criminal activity)
2) Impracticable in the circumstances (You need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant)
What circumstances must be suspected for surveillance without warrant in situations of emergency or urgency?
- Punishable by 14years imprisonment or more AND
- Believe the use of the device would obtain EM in relation to the offence
- An Arms Act 1983 offence (or a person being incapable of having proper control of the arms or may kill or cause bodily injury to any person) (or under the Domestic Violence 1985 a protection order or police safety order is enforced against a person) (or there are good grounds to make an application against him or her for a protection order)
- A drug offence OR
- There is a situation which is..
- Likely cause injury or serious property loss/damage and surveillance is necessary to prevent this
- Presenting risk to life and safety and surveillance is necessary for an emergency response (S14)
What is the time constraint when using a surveillance device without warrant in an emergency situation?
Surveillance device can be used for a period not exceeding 48 hours
What must be done after a surveillance device is used in an emergency situation?
An application for a surveillance device warrant must still be made
Who can approve the use of an interception device in an emergency situation?
A detective inspector unless
- the immediacy does not allow for prior planning and approval and
- statutory criteria is met and
- EM would otherwise be loss if not taken at that time
What is the requirement to report the use of a surveillance device in an emergency? (S60)
Notification must be completed (report in the SS system) to a judge within one month after the date of the last day which the surveillance device is used
What is the timing limitations for a surveillance device warrant?
No more than 60 days
