Search & Surveillance Flashcards
What is a Lawful Search
A search that is conducted:
- With a search warrant
- Under a warrantless search power
- With the person’s consent
What is a Reasonable Search
A search that….
Complies with S21 of the NZ 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
What must be Considered when you have RGTB that it is impractical to obtain a search warrant
- Is there time to gain approval and apply for a search warrant
- Can the scene be secured under Section 117
- Are reasonable resources available (including staff) to minimise risk and ensure safety
- Is the evidence material at risk
- Location of the search and who may be present
Why Use a Search Warrant
- Ensures judicial oversight
- Provides greater protection for Police and the public
- Requires recording and reporting of results
What Options Do You Have to Search
- Search warrant
- Search using warrantless power
- Search by consent
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
Section 92
What must you advise the person of before conducting a search by consent
- The reason for the proposed search AND…
2. They may consent or refuse to the search
Can a person under 14yrs consent to the search of a place, vehicle or other thing
No
Unless……they are found driving with no passenger of or over 14yrs with authority to consent to the vehicles search.
Is there a requirement to report a consent search
No
What is a tangible item
Something that may be touched
What is an intangible item
Means unable to be touched; not having physical presence
What does CADD stand for
Concealed
Altered
Damaged
Destroyed
Must have RGTB
Name and example of each CADD
Concealed
- burying or hiding items in another place or removing items
Altered
- changing or removing serial numbers from stolen property in an attempt to disguise it
Damaged
- cutting out the firewall of a stolen car to remove an identifying feature
Destroyed
- consuming food, alcohol or drugs, burning clothing
What are obligations in the context of Search and Surveillance Act
Actions that must be carried out when certain powers are used
What section of the Search and Surveillance Act sets out your obligatoins
Section 131
What do your obligations cover
Identification
Intention
Reason
Notice
- ID yourself by name or QID
- announce your intention to enter and search
- state the name of the act
- give notice by providing a copy of the search warrant
- caution (BOR) persons detained for the purpose of a search
Obligation Reasons
If using a warrantless search power you must state the reason for your search and…..
- provide a copy of the search warrant or a warrantless search notice to occupier and provide inventory of items seized
- report your use of certain powers (S169)
- consider privilege (S136 - 147)
Obligation Notice
Giving notice is more than just telling or explaining to a person what you are about to do and why.
It includes giving written notice by way of
IF EXECUTION A SEARCH WARRANT
• provide a copy of the search warrant
IF USING A WARRANTLESS SEARCH POWER
• state the name of the enactment under which the search is taking place and the reason for the search (unless impractical to do so)
• use the POL1275 search notice to occupier to comply with this obligation
When do you not have to comply with your obligations
- RGTB no one is present
- Endanger any person’s safety
- prejudice the successful use of the entry and search power
- prejudice on-going investigations
What must be provided if the occupier is not present at the time of the search
- Copy of the search warrant
- Copy of the POL1275 search notice to occupier
- Inventory of any material seized (POL268)
Must be provided as soon as possible after the search and within 7 days of completion of the search
What does section 110 authorise you to do
- Enter and search the place, vehicle or other thing that you are authorised to 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 tat 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 eg. computer data
- Take photographs, sound and video recordings and drawings
What does section 116 allow
To SECURE a place, vehicle, or other thing to be searched and EXCLUDE any person from there
What does section 118 allow
To 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
What does section 119 allow
To SEARCH PEOPLE found when searching places and vehicles if you have RGTB that evidential material that is is the object of the search is on that person
or
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
What does section 120 allow
If you are in FRESH PURSUIT and 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
AWOCA
A - ask the person to comply with your search
W - why, give reasons for your actions
O - options, allow search or arrest for obstruction
C - confirm that the person understands the options
A - action, arrest for obstruction
What are the special rules for searching people
- you can search any item the person is wearing, carrying, has in their physical possession or immediate control
- you can 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 seize any item that may be lawfully seized even if it was not the subject of your search.
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/hinder your powers
DETAIN that person to determine if there is any connection between them and the object of your search
SEARCH that person if you have RGTB that they may have evidential material on them
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
What is privileged material
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
Privileged material includes material gained through communication with who
- legal advisers
- ministers of religion
- medical practitioners
- clinical psychologists
- informers
- journalists
What set procedures must you follow when a search involves privileged material held by a specific person
- ensure that the person or their representative is present when the search is undertaken
- give the person a reasonable opportunity to claim privilege
What are the key steps in the search warrant process
- gain prior approval
- gain online approval
- gain issuing officer approval
- plan and brief search warrant execution
- execute search warrant
- report outcomes
- file investigation records
What are the other options for applying for a search warrant
- apply for a search warrant orally
- apply for a search warrant without approaching an issuing officer in person (by phone)
- secure a scene while you apply for a search warrant for a maximum period of 6hrs
Should be considered as exceptions and not used unless other means are not practically available.
May help manage time required to apply for a warrant where there is risk of loss of evidential material
What must you do if you make an oral application for a search warrant
Make an online application in the search and surveillance system as soon as possible and back-capture the required information
What must be done before making an application for a search warrant
- RGTS 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 - CHECKED THE TARGETS history in NIA for other search warrant applications/outcome
- ASSESSED THE RISKS associated with executing the search warrant
- Obtained INITIAL APPROVAL from a supervisor at or above the rank of sergeant to proceed with the online application
When must risks be assessed in relation to search warrants
before making the application and again before a search warrant is executed
Risks must be……
- Identified
- Assessed
- Considered in planning how to execute the search warrant
What must be completed prior to executing a search warrant
A planned action risk assessment and CARD prompt
TENR applied
When can you use section 117
If a search warrant application is about to be made or has been made and you are waiting to hear if it has been authorised and you have RGTB that evidential material will be CADD or removed before the search warrant can be issued
What does section 117 allow you to do
- 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
Powers of section 117 may be exercised until the first o the following occur…….
- the expiry of 6 hours from wen the power is first exercised
- the warrant is available for execution at that place or vehicle or in respect of that other thing
- the application for a search warrant is refused
Who can issue a search warrant
Issuing officers
• District court judge
• High court judge
Or any person authorised by the Attorney General • Justice of the Peace • Community Magistrate • Registrar • Deputy registrar
When will a search warrant be authrised
When the issuing officer is satisfied that the search warrant clearly shows the:
RGTS an offence punishable by imprisonment has been, will be or is about to be committed and
RGTB that the search will find evidential material in respect of the offence in the place, vehicle or other thing
What restrictions my an issuing officer put on a search warrant
- restricting the time when the search warrant can reasonably be executed
- requiring the occupier or person in charge of a place to provide reasonable assistance to the officer executing the search warrant
- requiring a report on the search warrant within a specified time
What should you do if the search warrant application is refused
- record the issuing officers reasons for refusing to sign
- consider the issues raised and if possible re-draft the application ensuring you have addressed these issues
- re-submit the application to the same issuing officer
If the issues cannot be address
• make further enquiries to support (of otherwise) the application
• consider whether to continue your investigation without conducting a search
• if the reasons for not signing 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
No more than 14 days from the date of issue
No more than 30 days from the date of issue if you have justified why this is necessary
When can a search warrant be executed
- any time that is reasonable under the circumstances
* 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. You must detail the reason for the multiple entries
What must you consider in your on-going risk assessment for a search warrant execution plan
- review and re-assess the identified risks
- work with others to identify and consider any further risks
- plan how to manage and minimise any identified risks
- determine how risk management will be communicated in your sear h warrant briefing
Under what circumstances can you postpone compliance with notice obligations
If providing a copy of the search warrant or inventory would:
• endanger the safety of any person or
• prejudice on-going investigations
An application to postpone is made under section 134 of the Ac and should be presented to the judge:
• at the time of the search warrant application or
• before 7 days has passed after the search warrant execution
A judge can also postpone these obligations for a period not exceeding 12 months
What is GSMEAC
GROUND
• location to be searched
• address
• neighbours
SITUATION
• reason for seeking the search warrant
• background on any suspect
MISSION
• address
• suspect
• evidential material sought
EXECUTION • timings • method of entry • roles • responsibilities • obligations on entry • managing suspects • searching for evidential material
ADMINISTRATION
• travel to and from place to be searched
• timing of the search warrant execution
• recording of evidential material seized
COMMUNICATION • cell phone numbers • before executing the search warrant • after executing the search warrant • debrief
the person in charge of the search warrant briefing should…..
- ensure all required staff are present
- use maps, charts, diagrams, photographs
- reinforce verbal information given with visual prompts
- provide copies of all important documents
- ensure all staff present are clear about their roles and responsibilities
- identify and advise staff of what they can record in their notebooks during the briefing as all entries may be disclosed
What are the rules and obligations when executing a search warrant
- identification and notice requirements when searching places, vehicles and other things (131)
- the rules for searching people (125)
- powers incidental to search (110)
- reporting (169)
What are your additional powers
- securing a place, vehicle or other thing to be searched and excluding any person from there (116)
- powers of detention incidental to search of places or vehicles (118)
- powers of search by a person who has a power of arrest (119)
- stopping vehicles for search (121)
- moving vehicles for search / safekeeping (122)
- seizure of items in plain view (123)
- items of uncertain status may be seized (112)
What are your obligations when entering to executing a search warrant
- identify yourself by name or QID
- provide evidence of identity if not in uniform
- state the name of the act and reason for your search
- announce your intention to enter and search
- provide a copy of the search warrant
BOR any occupants detained for the purpose of the search
What section allows you to search persons found in a place or vehicle when you are executing a searching warrant for drugs
Section 19
Search and Surveillance
comply with rules in section 125
• ID yourself by name/QID
• advise the person of the enactment under which the search is taking place and the reason for the search
• produce ID if not in uniform
What section allows you to stop a vehicle to search it for evidential material
Section 121
Search and Surveillance
May stop if you have authority to search by:
• executing a search warrant
• warrentless search power
What does section 127 Search and Surveillance allow
To enter any place:
• to locate the vehicle to execute the search warrant if
• RGTB that the vehicle is there
NOT required to specify a place for the vehicle to be located in the search warrant application
What does section 112 allow
Seizure of Items of uncertain status
• remove items for examination or analysis off-site to determine if you can seize them lawfully
Items you want to remove must be within the scope of the original search
When can you seize items of uncertain status (112)
- exercising a search power
- carrying out a lawful search of a person
- lawfully in a place or vehicle
What does section 123 allow
Seizure of Items in plain view
• you have RGTB that you could have seized the item under a search warrant or other search power
What is a production order
Made under section 74 of the search and surveillance act
Requiring a person or orginisation to produce documents to enforcement agencies as evidential material of a specified offence
How long is a production order in force for
The period specified in the order (not exceeding 30 days after the date on which the order is made)
If a production order relates to a news media organisation who must you seek approval from
A Police executive member in the case of PNHQ or a district commander for a district matter
What must the district approver be satisfied of before granting approval for a production order
- grounds for applying for a production order are met
- resource benefit of making an application is advantageous to Police and the investigation
- information sought does not make unreasonable or unnecessary demands on the telco provider whom the order is against
What grounds must exist in order to apply for a production order
RGTS an offence has been, is being or will be committed (must be an offence for which you could apply for a search warrant)
RGTB that the documents sought
• constitute evidential material in respect of the offence and
• are in the possession or under the control of the person against whom the order is sought, or will come into their possession or under their control while the order is in force
What must you state if using hearsay evidence in a warrant application
- sufficient information to prove the reliability of what has been stated
- the informants reliability and whether they have given reliable information in the past
- whether the information has been confirmed by other means
What is surveillance
- observing and any recording of that observation of people, vehicles places and things
- ascertaining (tracking) the location of a thing or person or whether a thing has been interfered or tampered with
- intercepting a private communication
What is a surveillance device
A device which ASSISTS and ENHANCES your normal capabilities to carry out the surveillance
Maybe one or more of the following kinds:
• visual surveillance device
• interception device
• tracking device
Definition of a visual surveillance device
a) means any electronic, mechanical, electromagnetic, optical, electro-optical instrument, apparatus, equipment or device used or capable of being used to observe or observe and record a private activity BUT
b) does not include spectacles, contact lenses or a similar device used to correct subnormal vision of the user to no better than normal vision
Definition of private premises
Means a private dwelling house, a marae and any other premises that are not within the definition of non-private premises
Definition of non-private premises
Means premises or part of a premises to which members of the public are frequently permitted to have access and includes any part of a hospital, bus station, railway station, airport or shop
What is private activity
The definition of private activity acknowledges fundamental human rights.
A participant in private activity can reasonably expect the activity is private if it is carried out in private premises
but - “ought reasonably to expect” must be an objective test i.e what any person would expect
Definition of private communication
a) means a communication (whether oral or written form or in the form of a telecommunication or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication but
b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so
What is trespass surveillance
Surveillance that involves trespass onto land or goods
Definition of curtilage
Means the land immediately surrounding a house or dwelling including any closely associated buildings and structures but excluding any associated open fields beyond
It defines the boundary within which a home owner can have a reasonable expectation of privacy and where common daily activities take place
Activity for which a surveillance device warrant is required in relation to curtilage surveillance
observation of private activity in the curtilage of private premises and any recording of that observation if any part of the observation or recording is by means of a visual surveillance device and the duration of that observation for the purposes of a single investigation or a connected series of investigations exceeds
- 3hrs in any 24hr period or
- 8hrs total
Definition of interception device
a) Means any electronic, mechanical, electromagnetic, optical, electro-optical instrument, apparatus, equipment or device used or capable of being used to intercept or record a private communication but
b) Does not include any hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing
A surveillance device warrant for use of an interception device can only be used for what offences
- offences punishable by 7 or more years imprisonment
- identified Arms Act 1983 offences
- identified Psychoactive substances Act 2013 offences
What is voluntary oral communication
A communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded
eg. CHIS wearing a wire, offender allowing recording of his phone conversation with co-offender to gather evidential material
Definition of 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
• the location of a thing or a person • 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
Tracking device warrant may be used for any offence punishable by imprisonment
What is the emergency power for surveillance
Section 48
What offences does section 48 apply to
Situations of emergency or urgency is
RGTS offence has been, is being or is about to be committed and is
• punishable by 14 yrs imprisonment or more and
• RGTB that the use of a surveillance device would obtain evidential material in relation to the offence
• an arms act 1983 offence
- person incapable of having proper control or may kill/cause bodily injury
- domestic violence act 1995, protection order or PSO
- ground to make an application against him/er for a protection order
• a drug offence
there is a situation which is
• likely to cause injury or serious property loss/damage and surveillance is necessary to prevent offending from being committed or continuing
• presenting risk to life and safety and surveillance is necessary as an emergency response
How long can you use a surveillance device without a warrant in an emergency situation
period not exceeding 48 hours
What is the time limit for reporting the use of an emergency surveillance power to a judge
within 1 month after the date of the last day or any period of 48 hours or less over which the surveillance device was used
How long may a surveillance device warrant be issued for
No more than 60 days after the date on which the warrant is issued and is in force for that period
Approval to use an interception device in an emergency situation should be obtained from a D/Inspector unless……
- the immediacy of the situation does not allow for prior planning and approval from a D/I in consult with legal services and
- statutory criteria is met and
- an opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time
What two ingredients must exist for the use of section 48
- entitled to apply for a search warrant
* impractical to obtain a search warrant in the circumstances
