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Modules > Search & Surveillance CIB019 > Flashcards

Search & Surveillance CIB019 Flashcards

1
Q

What is the definition of ‘reasonable grounds to suspect’?

A

Having a sound basis for suspecting that a situation or circumstance exists

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2
Q

What is the definition of ‘reasonable grounds to believe’?

A

Having a sound basis for believing that a situation or circumstance exists

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3
Q

What is a ‘reasonable’ search?

A 
One that complies with s21 of the Bill of Rights Act 
You should consider:
 - The nature of the search
 - How intrusive it is 
 - When/where it is taking place
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4
Q

What should you consider when deciding if it is practicable to obtain a search warrant?

A
  • Is there time to gain approval and apply for the SW?
  • Can the scene be secured? (s117)
  • 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
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5
Q

Why are search warrants the preferred method of search? (3)

A
  • They provide judicial oversight
  • They provide better protection for Police and the public
  • They require recording and reporting of results
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6
Q

Which sections of SASA 2012 cover consent searches?

A

Sections 91-96

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7
Q

Consent searches should only be conducted if a SW or warrantless power is not available. However, they must be conducted for a reason and not just a ‘fishing expedition’. What are the only four reasons you might conduct a consent search?

A

1 - To prevent the commission of an offence
2 - To investigate whether an offence has been committed
3 - To protect life or property
4 - To prevent injury or harm

s92 SASA 2012

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8
Q

What must you tell the subject of the search before conducting a consent search? (2)

A
  • The reason for the proposed search

- They may consent or refuse to consent to the search

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9
Q

Who can consent to a search?

A

A person of or over 14 years UNLESS
A person under 14 is found driving a vehicle with no passenger of or over 14 years of age - then a person under 14 can consent to the vehicle being searched

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10
Q

What is ‘evidential material’?

A

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

Tangible - something that may be touched
Intangible - unable to be touched, not having physical presence (examples in s97 SASA e.g. email address, internet data storage facility)

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11
Q

What does CADD mean and why is it important?

A

CADD - concealed, altered, damaged, destroyed

If using a warrantless power, you must be able to explain your RGTB the evidence will be CADD

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12
Q

What are the obligations Police must adhere to when searching a place, vehicle or other thing?

A

Set out in s131 SASA
RAIN
- Identify self by name or QID
- Provide evidence of identity if not in uniform
- Announce intention to enter and search
- State name of the Act
- Give notice by providing copy of SW
- Give BOR when person detained for search
- If using warrantless, state reason for search

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12
Q

What are the obligations Police must adhere to when searching a place, vehicle or other thing?

A

Set out in s131 SASA
RAIN
- Identify self by name or QID
- Provide evidence of identity if not in uniform
- Announce intention to enter and search
- State name of the Act
- Give notice by providing copy of SW
- Give BOR when person detained for search
- If using warrantless, state reason for search

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13
Q

What are the exceptions to the obligations laid out in s131 SASA?

A

If you have RGTB

  • No one is home
  • It would endanger any person’s safety
  • It would prejudice the successful use of the entry and search power
  • It would prejudice on-going investigations

NOTE that you still need to provide a copy of the SW or POL1275 (if warrantless) and an inventory of items seized within 7 days of the execution

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13
Q

What are the exceptions to the obligations laid out in s131 SASA?

A

If you have RGTB

  • No one is home
  • It would endanger any person’s safety
  • It would prejudice the successful use of the entry and search power
  • It would prejudice on-going investigations

NOTE that you still need to provide a copy of the SW or POL1275 (if warrantless) and an inventory of items seized within 7 days of the execution

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14
Q

What does s110 authorise? (Memorise FOUR)

A

This section covers additional powers available when searching a place, vehicle or other thing with or without a SW

  • Enter and search place, vehicle. thing, that you are authorised to enter and search
  • Search any item or items found in that place, vehicle, 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, thing
  • Bring and use a trained law enforcement dog and it’s handler
  • Copy any document, or part of 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
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15
Q

What does s116 cover?

A

If your search is impeded or you have RGTB a person may hinder your ability to search, s116 gives you the power to

  • Exclude the person
  • Give reasonable direction to the person
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16
Q

What are the four additional powers available when searching with a SW or warrantless search?

A

S116 - secure a place, vehicle or other thing to be searched and exclude persons from there
S118 - detain people when searching to determine if there is a connection between a person at the place/vehicle and the object of the search
S119 - search people found when searching place/vehicle/thing IF you have RGTB evidential material relating to search is on person OR RGTS person is in possession of dangerous item
S120 - if in fresh pursuit and have RGTB relevant evidential material is still on person, you can enter any place to apprehend the person and search person/vehicle

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17
Q

What is the process when a person is resisting a search?

A 
ASK them to comply
WHY - give reasons for actions
Give them OPTIONS
CONFIRM they understand the options
ACTION - arrest for obstruction
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18
Q

What does s125 SASA allow?

A

If exercising a search power over a person, you may:

  • Search any item the person is wearing, carrying, has in their possession or immediate control
  • Seize any item as above if it is what you are searching for
  • Seize any item that can be lawfully seized
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19
Q

What is privileged material?

A

Material gained through communication with

  • Legal advisors
  • Ministers of religion
  • Medical practitioners
  • Clinical psychologists
  • Informants
  • Journalists

Does not count as privileged if information is made, received, compiled or prepared for a dishonest purpose or to enable or aid any person to commit an offence

20
Q

When should a search warrant risk assessment be completed?

A
  • Before the application is approved AND

- Again before it is executed

21
Q

What does s117 SASA allow?

A

This is a special power when a SW application is pending - you must have RGTB evidential material may be removed or CADD before the SW is issued

  • Enter and secure a place/vehicle/thing
  • Secure any item found there
  • Direct any person to assist with entry and securing the place/vehicle
22
Q

Who can issue a search warrant?

A

A District or High Court Judge OR

Any person authorised by the Attorney General such as:

  • JP
  • Community magistrate
  • Registrar
  • Deputy registrar
23
Q

What should you do if an issuing officer declines your SW application?

A
  • Record the reasons
  • Consider the issues raised and if possible, re-draft the application
  • Resubmit the application to the same issuing officer

If the issues cannot be addressed

  • Make further enquiries
  • Consider whether to continue investigation without conducting a search
  • If the reasons for not signing the SW do not seem justified, submit a report to legal services for direction
24
Q

When you execute a SW you are obliged to provide a copy of the SW and an inventory of items seized to the occupier (s131). Are there exceptions to this rule?

A

Yes - if you believe providing a copy of the SW would endanger the safety of any persons or prejudice on-going investigations, you may apply to a judge to postpone your obligation to provide a copy. This application is made under s134 and should be presented to the judge

  • At the time of the SW application OR
  • Before 7 days has passed since execution

A Judge may postpone the obligation for a period not exceeding 12 months

25
Q

What does s119 SASA allow?

A

If a person is located at or arrives to a place where a lawful search is taking place, they may be searched if there are RGTB they have evidential material on them relating to the offence, or RGTS they have a dangerous item on them

26
Q

What does s121 SASA allow?

A

This is a vehicle stopping power. Must have grounds to search the vehicle (SW or warrantless)
Must provide RAIN if any person effected by the search enquires

27
Q

What does s122 SASA allow?

A

If an enforcement officer stops a vehicle and a search is required, they may move the vehicle to another place if it is impractical to search at the current place OR they have RGTB it is necessary to move the vehicle for safekeeping

28
Q

What does s123 allow?

A

Seizure of items in plain view

29
Q

What does s112 allow?

A

Items of uncertain status may be seized

30
Q

What does s127 SASA allow?

A

You may enter any place

  • To locate the vehicle to execute the search warrant IF
  • You have RGTB the vehicle is there

NOTE - entry power only

31
Q

What should you do if you want to apply for a production order relating to a news media organisation?

A
  • Obtain approval from a Police Executive member (PNHQ or District Commander)
  • Follow guidance on ‘search warrants, production orders and examination orders involving media organisations’ in the search chapter in the Police Manual
32
Q

What are the grounds for applying for a production order?

A
  • RGTS an offence has been, is being, or will be committed AND
  • RGTB 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
33
Q

What must you do if an oral production order application is allowed?

A
  • The issuing officer must record the grounds for the application as soon as is practicable
  • The applicant must compete the application form capturing the information conveyed to the issuing officer as soon as practicable and in any event within 24 hours
34
Q

If property is damage during the execution of a search warrant or warrantless power, will Police cover the cost of repairs?

A

Generally, no.

If the search was unreasonable or the damage was unjustified (such as breaking down a door that was unlocked), Police may pay the claim.

If a mistake was made (e.g. executed at the wrong address), Police are likely to pay the claim

35
Q

What should you do if you receive a complaint of damage made by Police during a search?

A

Direct the claim to the District Commander or National Manager along with a report containing:

  • Circumstances of the search
  • Grounds for the search
  • Damaged caused/associated circumstances
  • Outcomes of the search
  • Details regarding owner of the property/occupier/user at relevant time
  • Nature of the claim
  • Steps taken by Police/owner to prevent further loss or damage
36
Q

What is a surveillance device?

A 
A device which assists and enhances your normal capabilities to carry out surveillance
May be:
 - A visual surveillance device
 - An interception device
 - A tracking device
37
Q

What is a visual surveillance device?

A

A visual surveillance device means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment, or other device that is used to observe, or to observe and record, a private activity but
- Does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision

38
Q

When do you need to apply for a SDW if using a visual surveillance device?

A

S46(c)
Observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device

s46(e)
Observation of the curtilage of an address and the recording of that observation by means of a visual surveillance device for more than 3 hours at a time or more than 8 hours in a 24-hour period

39
Q

What is a private premise?

A

A private dwelling-house, marae, and any other premises that are not within the definition of non-private premises

40
Q

What is a non-private premise?

A

This means premises, or part of a premise, 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

Some areas within this would be considered private - e.g. the theatres and consulting rooms in a hospital or the office area and staff meal room of a railway station

Key - is the public permitted access?

41
Q

What is private activity?

A

The definition of private activity acknowledges fundamental human rights. A participant in an activity can reasonably expect the activity is private if it is carried out in a private premise.
“Ought reasonably to expect” is an objective test - what would a reasonable person expect?

42
Q

What is private communication? (Memorise)

A

(a) Means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may be reasonably 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 communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication could be intercepted by some other person without having the express or implied consent of any party to do so

43
Q

What is trespass surveillance? (Memorise)

A

Surveillance that involves trespass into land or trespass to goods.
This occurs the moment an enforcement officer steps onto private property without consent

44
Q

What is curtilage? (Memorise)

A

The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’.

If defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place

45
Q

What is an interception device? (Memorise)

A

(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 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

46
Q

What is voluntary oral communication? (Memorise)

A

A voluntary oral communication is a communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (s47)

No requirement to obtain SDW

47
Q

What is a tracking device? (Memorise)

A

(a) Means a device that, may be used to help ascertain, by electronic or other means, either both or the following:
(i) The location of a thing or 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

48
Q

Surveillance devices involve a serious intrusion of a persons privacy, and therefore any SDW application should be carefully considered. What are the offence thresholds when applying for a SDW?

A

Visual - 7 years imprisonment, certain Arms Act offences, certain offences against Psychoactive Substances Act
Interception - 7 years imprisonment, certain Arms Act offences, certain offences against Psychoactive Substances Act
Tracking - any offence punishable by imprisonment

49
Q

When can you conduct surveillance without a SDW?

A

S48 SASA 2012

In some situations of emergency or urgency
Must be entitled to apply for a SDW and it is impracticable in the circumstances to make application

Can only use for 48 hours

50
Q

What are the requirements when using a SD in an emergency situation?

A

When offence is:

  • Punishable by 14 years imprisonment or more
  • RGTB SD would obtain evidential material

OR

  • Arms Act offence AND
  • Person by reason of physical/mental condition incapable of having proper control of arms, may kill/injure any person OR
  • Protection order or PSO in place OR
  • Grounds to make PO application

OR
- Drug offence

OR

  • Situation likely to cause injury/serious property loss/damage and surveillance necessary to prevent offending from being committed or continuing
  • Presenting risk to life/safety and surveillance necessary as emergency response

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