Search + Surveillance Act 2012

Question 1

What is evidential material?

Answer 1

Evidence of the offence or any other item, tangible or intangible of relevance to the investigation of the offence.

Question 2

What is the search hierarchy?

Answer 2

You should always consider a warrant first. If this is not practicable then consider using a warrantless power. Consent search should be the last option.

Question 3

Section 7 - entry to arrest person unlawfully at large

Answer 3

If you have RGTS that a person is unlawfully at large and is in a place/vehicle, you may enter the place or vehicle without warrant to search for and arrest the person

Question 4

Section 8 - entry to avoid loss of offender or evidential material

Answer 4

If you have RGTS an offence punishable by imprisonment has been committed AND

Believe that the person is in the place/vehicle AND

Believe that if entry is NOT effected immediately either the person will leave to avoid arrest or the evidential material will be CADD

You may enter that place/vehicle without warrant, search for and arrest the person you suspect has committed the offence

You CANT search for evidential material unless an arrest is made and a search incidental to the arrest is undertaken under section 83-88

Question 5

Section 14 - emergency power

Answer 5

Enter place/vehicle and take any action as reasonably necessary if:
an offence is being/about to be committed that would likely cause injury to any person or serious loss/damage to property or there is risk to the life or safety of any person

Question 6

Section 15 - search place for evidential material - 14 year offence

Answer 6

If you suspect a 14 year imprisonment offence had/is/will be committed and you BELIEVE evidential material is in a place and will be CADD you may enter and search to find evidential material.

Question 7

Section 16 - search person in public for evidential material - 14 year offence

Answer 7

If you BELIEVE a person in a public place has evidential material on him relating to a 14 year imprisonment offence you may search that person without a warrant

Question 8

Section 17 - search vehicle in public for evidential material 1- 4 year offence

Answer 8

If you BELIEVE evidential material relating to a 14 year imprisonment offence is in or on a vehicle in a public place you may enter and search that vehicle without warrant.

Question 9

Section 83 - entry and search place/vehicle incidental to arrest

Answer 9

If you have arrested a person for an offence and BELIEVE evidential material is in the place/vehicle and that delay in getting a search warrant would result in the evidential material being CADD.

You may enter and search the place/vehicle for evidential material relating to the offence. It does NOT matter if the person was NOT arrested there.

Question 10

When executing a search warrant or power who can you search at the scene?

Answer 10

You can search any person found at, arrives at or stops/enters the place or vehicle if you have RGTB that evidential material is on that person OR
suspect that the person is in possession of a dangerous item that poses a threat to safety and you BELIEVE immediate action is needed.

Question 11

Section 117 - secure scene

Answer 11

Secure scene while search warrant is pending (6 hours)

Question 12

What obligations must you do when exercising a search power?

Answer 12

Before entry you must:

• announce intention to enter and search using a power
• identify yourself by name
• if not in uniform produce evidence of your identity

Question 13

When do you not have to announce entry or give reasons for the search?

Answer 13

• no person lawfully present

- compliance would endanger the safety of any person or prejudice the exercise of the entry or the ongoing investigation

Question 14

What factors do you consider before making an unannounced forced entry?

Answer 14

• tactical options available
• reasonable and practical alternative to forced entry
• seriousness of the offence
• history of violence
• danger to police or public or people at the place
• reasonable grounds evidence will be CADD

Question 15

What is curtilage?

Answer 15

An area attached to a dwelling house and forming one enclosure with it.

Question 16

How old does a person need to be to be treated as an occupier or person in charge?

Answer 16

14 years or older

The only exception is if they are found driving a vehicle and there is no passenger 14 years or older with authority to consent to the vehicles search

Question 17

Section 9 - stopping vehicles without warrant to effect arrest

Answer 17

You may stop a vehicle if you have RGTS that a person who is unlawfully at large or who has committed an offence punishable by imprisonment is in/on the vehicle.

If you arrest the person you can search the vehicle for evidential material relating to the offence.

You must advise the person responsible for the vehicle if they weren’t the one arrested, the reason for the search etc.

Question 18

If you stop a vehicle using section 9 who can you require to give their particulars?

Answer 18

You can require the particulars from persons in the vehicle whom you suspect are unlawfully at large or have committed an offence.

Question 19

Who can establish a road block and under what grounds?

Answer 19

Sgt or above (includes acting sgt)

Must have RGTB that in/on a vehicle, there is

• a person unlawfully at large or
• had committed an offence punishable by imprisonment AND
• you suspect the vehicle will pass where the road block is

Question 20

Section 18 - people in possession of firearms

Answer 20

• if you have RGTS a person is carrying firearms or is in possession of them AND
• they are in breach of the arms act OR
• by reason of their physical/mental condition or incapable of having proper control or may kill or cause bodily injury to any person
• under the domestic violence act they have a protection order or a PSO is in place

You may:

• search the person or anything in their possession or under their control / including a vehicle and seize any firearms found
• you can enter a place/vehicle to search and seize any arms found

Unless impracticable obtain approval from a Sgt

Question 21

What does locked up mean?

Answer 21

Taken into lawful custody and being placed behind a closed or locked door which prevents them from leaving.

Question 22

Section 11 - when can you search a person after they have been locked up?

Answer 22

• If they were not searched before being locked up
• RGTB they are in possession of something that may be used to harm themselves or others

Since being searched or before being locked up they were in close proximity to a person who was NOT locked up, or another person who was eligible to be searched but wasn’t.

Question 23

Section 85 - what is the purpose of a rub down search?

Answer 23

To ensure a person who has been arrested or detained is NOT carrying anything that may be used to harm any person or facilitate escape.

Question 24

Section 88 - what does it entitle you to do?

Answer 24

If you have arrested a person/detained them under a statutory power and have RGTB that there is anything on or carried by the person that

• may be used to harm any person
• may be used to facilitate the persons escape
• is evidential material relating to the offence for which the person is arrested or the person detained you may search that person

Question 25

Examples of when samples from a persons body maybe seized as evidential material pursuant to section 88 search?

Answer 25

- swabs to remove blood on the arrested person - fingernail scrapings - penile swab (to obtain victims DNA from offender relating to a sexual violation For the purpose of this section, the search must be lawful, reasonable and approved by a Sgt or above.

Question 26

Section 28 - searching vehicles for offensive weapons

Answer 26

If you have RGTS a person travelling in a vehicle OR who has alighted from it is committing an offence is a public place AND the vehicle contains a knife, offensive weapon or disabling substance you may search the vehicle.

Question 27

Section 29 - searching vehicles for stolen property

Answer 27

If you have RGTB that any stolen property is in/on any vehicle. You may search the vehicle. Note: ONLY when the vehicle is in a public place.

Question 28

Section 84 - entry and search of vehicles after arrest

Answer 28

If you have arrested a person and have RGTB that evidential material relating to the offence is in a vehicle. You may enter and search that vehicle.

Question 29

Section 119 - power to search persons at a place/vehicle (person arrives during search)

Answer 29

If you are searching a place/vehicle you may: - search any person found at that place/vehicle OR - who arrives at that place OR - who stops at, or enters or tries to enter or gets into the vehicle If you have RGTB that evidential material that is the object of the search is on that person OR You suspect 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 the threat.

Question 30

Section 92 - purposes for which consent search may be undertaken?

Answer 30

You may ask a person to consent to a search of a place/vehicle or other thing - to prevent the commission of an offence - to protect life or property or prevent injury/harm - to investigate whether an offence has been committed - any purpose in respect of which you could exercise a power of search conferred by an enactment if you held a particular belief or suspicion specified in the enactment

Question 31

Exceptions to consent search

Answer 31

- Search conducted as a condition of entry to any public place or private place - Search conducted under a power conferred by an enactment - Entry to property under an implied licence

Question 32

Section 120 - powers of search when suspect pursued

Answer 32

If you intend to search a person/vehicle but that person/vehicle leaves before you are able to start/complete to search You may apprehend to person or enter any place to find them if you have been freshly pursuing the person from the intended search location You have RGTB that relevant evidential material is still on the person/vehicle You can only apprehend if you are the officer in fresh pursuit unless you are acting as that officers assistant under section 113 and are under their direct supervision and control.

Question 33

What must you say prior to a consent search?

Answer 33

Determine that the search is eg. to prevent risk to life/property etc. Advise the person for the reason for the search that they may consent or refuse to consent to the search A person under 14 years of age can consent to a search of themselves or anything in their immediate possession or control.

Question 34

Section 27 - search of people with offensive weapons

Answer 34

You may search a person if you have RGTS the person has an offensive weapon.

Question 35

Section 113 - Using assistants during searches

Answer 35

You can call on a person to assist you to exercise a search power or a person has been required to assist you as a condition of a warrant. They are subject to your control and the overall responsibility for exercising the power rests on you. Unless they are a constable you MUST - accompany them when they first enter the place/vehicle/other thing AND - provide reasonable supervision of them They MUST only search places that are lawful as determined by you.

Question 36

Section 118 - powers of detention incidental to searches of places/vehicles

Answer 36

You may use reasonable force to effect and continue detention. Must be for a reasonable period of time but NO longer than the duration of the search. You MUST determine if the person has a connection with the search if they don't, you must let them leave.

Question 37

Section 127 - search warrant to enter and search vehicles

Answer 37

If you have a search warrant that authorises the search and entry of a vehicle. You may enter any place where you have RGTB the vehicle is to locate and search it.

Question 38

Section 131 - ID and announce requirements

Answer 38

If you exercise a search power, before entry you must: Announce your intention to enter and search ID yourself by name or QID If not in uniform produce ID You also must either before or on initial entry provide the occupier of the place or person in charge. A copy of the search warrant / if not practicable, you may execute a fax or printout of an electronically generated copy of the warrant or a copy which is endorsed to that effect.

Question 39

What can you seize during a search?

Answer 39

If you find evidence of an offence other than the one specified in the warrant or covered by your warrantless power, you CANNOT seize it unless you obtain another warrant OR you exercise plain view seizure under section 123.

Question 40

Section 123 - seizure of items in plain view

Answer 40

If you are exercising a search power or are lawfully in a place as part of your duties, you may seize anytime, if you have RGTB you could have seized the item under: - any search warrant obtained under the S&S act - any other search power exercisable by you under the S&S act or any other act.

Question 41

Section 112 - items of uncertain status

Answer 41

If you are not certain of something can be seized and it is not practicable to determine that where the search takes place you may: - remove the item for exam or analysis to determine whether it may be lawfully seized eg your warrant is to locate cocaine and you find a white powder. You can take this package for testing. eg you cannot use this power if your warrant was to find cannabis but you find a TV and you are unsure if its stolen. You would need to consider if you could exercise a plain view seizure or to secure the scene pending a warrant under section 117.

Question 42

Notice and inventory requirements after search/seizure

Answer 42

Searches when occupier/person in charge of place/vehicle/or thing is there - you must give that person before or on entry a copy of the warrant and attached privilege information contained in the notice to occupier, or the person in charge of vehicle/ other thing present during search or - if warrantless, a copy of the notice to the person present during warrantless search - POL 1275 Exceptions to this is when you do an unannounced forced entry.

Question 43

Searches conducted of vehicle or thing when person isnt there

Answer 43

Leave in a prominent position at the place/vehicle a copy of the warrant and attached privilege information contained in the notice to occupier or the person in charge of the vehicle/other thing not present during search or - if a warrantless search, a copy of the notice to person not present during warrantless search.

Question 44

Searches relating to items being seized, what must you do?

Answer 44

At the time of item seized, or as soon as practicable after the seizure and no later than 7 days: - provide to the occupier or owner an inventory of items seized and accompanying notice to owners or others in relation to things seized AND A copy of authority eg a copy of the warrant of POL 1275 if the owner is different from the person in charge and they have NOT previously received the relevant forms.

Question 45

Section 31 - duration and record of road block

Answer 45

Valid for an initial period of up to 24hrs. May be renewed from time to time by a district court judge for a single further period not exceeding 24hrs. If you authorise a road block you MUST keep a written record of: - the location - the period for and the grounds on which authorisation was granted or renewed Must do a community impact assessment (CIA) where: - vulnerable people are present - on the community and interested groups Conducted in writing.