Search Warrants

Question 1

When is a search warrant required?

Answer 1

• Unless it is impracticable in the circumstances, you must obtain a search warrant before searching a PLACE, VEHICLE or OTHER THING.
• Where it is impractical to obtain a search warrant, you may exercise a WARRANTLESS POWER to ENTER and SEARCH under the Search and Surveillance Act 2012, if the statutory requirements are met and the use of the power is reasonable in all the circumstances.

Question 2

What does a search warrant authorize?

Answer 2

A search warrant MAY authorise you to ENTER and SEARCH any PLACE, VEHICLE or OTHER THING, for EVIDENTIAL MATERIAL in respect of an offence PUNISHABLE BY IMPRISONMENT.

Question 3

Who may apply for a search warrant?

Answer 3

• ANY Constable may apply for a search warrant.
• Private individuals cannot apply for a search warrant. They may instead make a complaint of an offence to you. If you are satisfied that there are sufficient grounds for obtaining a search warrant, then you may apply for the search warrant for Police execution.

Question 4

What GROUNDS could someone apply for a search warrant?

Answer 4

• You can apply for a search warrant if you have REASONABLE GROUNDS:
  . To suspect an offence PUNISHABLE BY IMPRISONMENT has been, is being or will be committed
  AND
  . To believe that the search will find EVIDENTIAL MATERIAL in respect of the offence, IN THE PLACE, VEHICLE or OTHER THING specified in the application.

Question 5

Definition of an “informant” under the Act?

Answer 5

• Under Section 3 of the Act, ‘informant’ has the same meaning as in Section 6(1) of the Criminal Disclosure Act 2008.
• Any person who provides verbal or written information, whether or not in recorded form to a law enforcement officer.
• ‘Informant’ is not restricted to COVERT HUMAN INTELLIGENCE SOURCES (CHIS)

Question 6

Explain case law R v Williams - see law notes - 30 May 2007 and R v Kissling.

Answer 6

• Revealing identity of informants (not CHIS) in Search Warrants.
  . The names and other identifying details of informants who are not registered as CHIS may be withheld but care must be exercised to ensure they are informants rather than witnesses - that they gave information with an expectation that their identity would be protected.

Question 7

What “Special powers” are available when warrant applications are pending?

Answer 7

• Power to secure scenes:
  > You may
• at any time that is reasonable in the circumstances:
  • ENTER and SECURE the place, vehicle, or other thing, and
  • SECURE any ITEM(s) found there, and
  • DIRECT any person TO ASSIST with the ENTRY and SECURING of the place, vehicle or other thing, or the securing of items in it
  > If you
• BELIEVE that evidential material may be destroyed, concealed, altered, damaged, or removed before a decision is taken to grant or refuse the issue of a search warrant.

Question 8

Surveillance: Explain “Surveillance without a device”?

Answer 8

• The Search and Surveillance Act 2012 regulates only surveillance activities undertaken by means of a device.
• Surveillance not involving the use of a device is not governed by the Act. This means that surveillance:
  > without a device cannot be authorized by a warrant
  > will be unlawful if it involves a trespass
  > will be lawful and able to be undertaken without restriction for any purpose if it does not involve a trespass and in the circumstance it is reasonable (as required by s. 21, Bill of Rights Act)
• There is nothing to preclude getting a search warrant to trespass on a place in order to conduct surveillance without a device. Flying over property does not constitute a trespass and this includes the use of drones and model aircraft.