Search & Surveillance - Sections & Definitions Flashcards
Define: Arms
Any firearm, airgun, pistol, restricted weapon, imitation firearm, or explosive (as per s2 arms act 1983), or any ammunition.
Define: Curtilage
Is a legal term used to define 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 homeowner can have a reasonable expectation of privacy and where ‘common home activities’ take place.
Define: Evidential material
In relation to a particular offence, means evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence.
Define: 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.
Define: Private activity
Means activity that, in the circumstances, any one or more of the participants in it ought to expect is observed or recorded by no one except the participants.
Define: Private premises
Means a private dwelling-house, a marae, and any other premises that are not within the definition of non-private premises.
Define: Surveillance device
Means a device that is any one or more of the following kinds of devices:
(a) An interception device
(b) A tracking device
(c) A visual surveillance device
Define: Trespass surveillance
Means a surveillance that involves trespass to land or trespass to goods.
Define: Unlawfully at large
In relation to a person, means that the person:
- Has an arrest warrant in force (excluding fines warrants)
- Has escaped from prison or is absent without leave
- Has escaped from lawful custody, eg police cells, police car.
- Is a special patient or a restricted patient and has escaped or has failed to return from leave.
- Is a care recipient or special care recipient (with an intellectual disability) and has escaped or has failed to return from leave.
- Is a “young person” who is the subject of a youth court “supervision with residence” order and they are absconding from CYFS custody.
Define: Visual surveillance 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 record 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.
Section 7, S&S Act 2012
Enter place or vehicle, to search for and arrest a person who is unlawfully at large.
Without warrant.
RGTS: Person unlawfully at large
RGTB: The person is in or on the place or vehicle.
Section 8, S&S Act 2012
Enter place or vehicle, to search for and arrest a suspect, to avoid loss of offender (or avoid CADD).
Without warrant.
RGTS:
- To suspect that the person has committed an offence that is punishable by imprisonment and for which he or she may be arrest without warrant
RGTB:
- That the person is there.
- If entry is not effected immediately:
- (i) the person will leave to avoid arrest
- (ii) evidential material relating to the offence for which the person is to be arrest will be CADD.
Note: Section 8 does not give you a power to search for evidential material.
Section 9, S&S Act 2012
Stop vehicle, to arrest a person that is unlawfully at large or who has committed an offence punishable by imprisonment.
Without warrant.
RGTS:
- The person is unlawfully at large, OR
- They have committed an offence punishable by imprisonment.
RGTB:
- The person is in or on the vehicle.
Section 10, S&S Act 2012
Vehicle may be searched for evidence, if stopped under section 9, and the person is arrested or flees.
Without warrant.
A constable exercising the stopping power under section 9 may do any 1 or more of the following:
(a) REQUIRE any person in or on the vehicle who the constable has RGTS is unlawfully at large or has committed an offence punishable by imprisonment to supply all or any of his or her name, address, other contact details, and date of birth.
(b) SEARCH the vehicle to locate the person referred to in section 9, if the constable has reasonable grounds to believe that the person is in or on the vehicle.
(c) SEARCH the vehicle to locate property that is evidential material in relation to any offence in respect of which the vehicle was stopped under section 9, if the person referred to in section 9—
- (i) has been arrested; or
- (ii) is seen fleeing from the vehicle before he or she can be arrested.
Note: Before conducting a search under a power conferred by subsection (1)(c), a constable must tell the driver the object of the proposed search, if the driver is not the person referred to in section 9.
Section 15, S&S Act 2012
Enter and search a place for evidence if offence (has/is/about to be) committed.
Without warrant
14+ year offences
RGTB:
- CADD will occur
Note: Section 15 is also intended to allow you to search a vehicle in the place you are searching. This does not include a vehicle in a public place, as this is covered under section 17.
Section 16, S&S Act 2012
Search person in public place for evidential material.
Without warrant
14+ year offences
RGTB:
- Person has evidence
Section 17, S&S Act 2012
Search vehicle in public place for evidence.
Without warrant
14+ year offences
RGTB:
- Evidence in or on the vehicle
Section 18(1) & (2), S&S Act 2012
Search person and things (including vehicle) under their control, enter place or vehicle, to search for and seize arms/licence.
Without warrant
RGTS:
- Is carrying arms, or
- Is in possession of them, or
- Has them under their control AND
- They’re breaching the Arms Act 1983
- Physical/mental condition is incapable of proper control or may kill or cause GBH to any person
- A protection order or PSO is in place
- Grounds for production order
Section 18(3), S&S Act 2012
Enter place or vehicle, to search for and seize arms/licence.
Without warrant
RGTS:
- Arms in the place or vehicle
- Category 3 or 4 offence committed
- Offence in Arms Act has been committed
- Evidential material for category 3 or 4 offence or offence against Arms Act.
Section 20, S&S Act 2012
Enter and search place or vehicle for drugs, when SW is impracticable.
Without warrant.
RGTB:
- CADD will occur
Section 21, S&S Act 2012
A constable conducting a search of a place or vehicle for drugs under section 20 may search any person found in or on the place or vehicle for drugs.
Without warrant
Section 22, S&S Act 2012
Search person in a public place for drugs.
Without warrant.
RGTS:
- Offence under MODA has/is/about to be committed
RGTB:
- Possession of drugs
Section 27, S&S Act 2012
Search person in public place for offensive weapons.
Without warrant
RGTS:
- Possession of offensive weapon/disabling substance
Section 28, S&S Act 2012
Enter and search a vehicle in a public place for offensive weapons.
Without warrant.
RGTS:
- Offensive weapon/disabling substance in vehicle.
Section 83, S&S Act 2012
After arrest the arresting officer may enter and search place for evidential material relating to offense.
Without warrant
RGTS:
- CADD will occur
Section 84, S&S Act 2012
After arrest the arresting officer may enter and search vehicle for evidential material.
Without warrant.
RGTB:
- Evidential material is in or on the vehicle.
NOTE: Public place only
Section 112, S&S Act 2012
Remove items of uncertain status (if within scope of original search power) for the purpose of examination or analysis to determine whether it may be lawfully seized as evidence.
*Already using warrant for original search power.
Section 117, S&S Act 2012
Secure (NOT SEARCH) the scene until a search warrant is obtained.
Can secure for maximum of 6 hours.
RGTB:
- CADD may occur
POWERS:
- Enter and secure the place and any items found.
- Can direct a person to assist.
POWERS PERMITTED UNTIL:
- Expiry of 6 hours
- Warrant is ready for execution
- Search warrant is refused.
Section 121, S&S Act 2012
Power to stop vehicle for the purposes of a search and to search it with or without a warrant.
RGTB:
- Grounds to search the vehicle
- Warrant has been issued and is in force for the vehicle.
Section 123, S&S Act 2012
Seize items in plain view, if you are lawfully in a place or vehicle.
*Already using warrant for original search power.
Section 45, S&S Act 2012
Restrictions on some trespass surveillance and use of interception device
Not allowed to trespass/use interception device unless:
- To obtain evidential material of an offence with minimum 7 year imprisonment
- Offence against sections 44, 45, 50, 51, 54 or 55 of the Arms Act 1983.
POWERS
- Undertake trespass surveillance
- Use an interception device.
Section 46(e), S&S Act 2012
Activities for which surveillance device warrant required
(e) 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 the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.
Section 47, S&S Act 2012
Activities when a SDW is not required
- When you’re lawfully in a private premise and recording what you see/hear without the use of a surveillance device.
- Conducting an audio recording of a voluntary oral communication between 2 or more people made with the consent of at least 1 of them.
Section 48, S&S Act 2012
SDW doesn’t need to be obtained for the use of a surveillance device in some situations of emergency/urgency
SD not exceeding 48hrs if you can get a SDW but impractical in the circumstances
RGTS:
- Category 3 or 4 offence from Arms Act
- SD would obtain evidential material.
RGTB:
- Needed to prevent any emergency
- Seizure of arms
Threshold for search warrant
RGTS:
- offence has been/is/will be committed
RGTB:
- The search will find the evidential material in relation to the offence
RGTS
Having a sound basis for believing a situation/circumstance is likely to exist
RGTB
Having a sound basis for believing that a situation/circumstance actually exists.
Difference between RGTS and RGTB
- RGTS is likely to exist
- RGTB actually exists
