Search Warrants Flashcards
Before commencing to make an application for a search warrant, you must:
OFFENCE
1. Be sure that there are:
• RGTS that 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.
HISTORY
2. Have checked the target/s history in NIA for other search warrant applications / outcomes.
RISK
3. Have assessed the risks associated with executing the search warrant.
APPROVAL
4. Have obtained initial approval from a supervisor at or above the rank of sergeant to proceed with the on-line application.
Search warrant risk assessment
Any search is inherently risky. These risks must be
- identified
- assessed
- considered in planning how you execute the search warrant
The risks must be assessed before the application is approved and again before a search warrant is executed.
A Planned Action Risk Assessment and CARD prompt must be completed and TENR applied to assess:
- threat
- exposure
- response (measures to reduce risk)
- necessity
This form can be found in Police Forms under Search and Surveillance
Special power – Section 117
Can be used 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 may be CADD or removed before the search warrant can be issued
If using sec 117, you may?
- 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.
Remember that section 117 authorises the securing of the address until a search warrant is obtained. It is not a search power.
The powers conferred by section 117(1) may be exercised until the first of the following occurs:
(a) the expiry of 6 hours from when the power is first exercised:
(b) the warrant is available for execution at that place or vehicle or in respect of that other thing:
(c) the application for a search warrant is refused.
Who can issue a search warrant?
An Issuing Officer may be a: ?
Or any person authorised by the Attorney General such as a:?
- District Court Judge
- High Court Judge
Or
- Justice of the Peace
- Community Magistrate
- Registrar
- Deputy Registrar
An Issuing Officer may authorise a search warrant for a place, vehicle, thing or facility, if they are satisfied that the search warrant application 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.
An Issuing Officer may put restrictions on a search warrant, including:
- 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
If a search warrant application is refused
When the Issuing Officer does not sign the search warrant application you should: ?
If the issues cannot be addressed: ?
- 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
- make further enquiries to support (or otherwise) the application
- consider whether to continue your investigation without conducting a search
- if the reasons for not signing the search warrant 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, as specified by the Issuing Officer,
or
No more than 30 days from the date of issue, as specified by the Issuing Officer, if you have justified why this is necessary and the Issuing Officer is satisfied.
When can a search warrant be executed?
- at any time that is reasonable under the circumstances, or
- 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.
Risk assessment must be on-going and in preparing a Search warrant execution plan you must:
- 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 search warrant briefing
If providing a copy of the search warrant or inventory would:
You may?
- endanger the safety of any person, or
- prejudice on-going investigations you
apply to a judge to postpone your obligation to provide a copy of the search warrant.
An application to postpone giving copy of SW is made under section 134 of the Act 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. This would apply to a long term investigation.
Example: You are applying for a warrant to search a gang headquarters for evidential material relating to the manufacture of methamphetamine.
If you believe that complying with notice obligations would be dangerous to those involved you can apply to a judge to postpone your obligations to leave a copy of the search warrant when you are applying for the search warrant or up to 7 days after the search warrant was executed.
When executing a search warrant you may be required to use reasonable force to:
- enter the place, vehicle or other thing (section 131)
- search (on property only) and seize (section 110)
- carry out a search of a person (section 125)
Remember to use AWOCA and TENR as required.
All staff involved in executing a search warrant should be fully briefed. Following GSMEAC allows all the key points to be covered.
Ground
• location to be searched
• address
• neighbours
Situation
• reason for seeking the search warrant
• background on any suspect(s)
Mission
• address
• suspect(s)
• specific evidential material sought
Execution • timings • method of entry • roles – O/C Scene, O/C Exhibits etc • responsibilities • obligations on entry • managing suspects • searching for evidential material • recording evidential material • assisting vulnerable people • sequence of events • managing risks and ensuring safety
Administration
• travel to and from the place to be searched under warrant
• timing of the search warrant execution
• recording of evidential material seized
Communication • cell-phone numbers and radio channels • before executing the search warrant • during execution of the search warrant • debrief
The person in charge of the search warrant briefing should:
- ensure all required staff are present
- reinforce verbal information given with visual prompts
- use maps, charts, diagrams, photographs
- 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 disclosable
The briefer should also clearly identify all risks and how to mitigate them.
Isolate
Minimise
Eliminate
The briefer should also identify any issues relating to sensitive or source (CHIS) related information.
Search Warrant
Rules and obligations ?
- identification and notice requirements when searching places, vehicles and other things (section 131)
- the rules for searching people (section 125)
- powers incidental to search (section 110)
- reporting (section 169)
Search Warrant
Additional powers?
- securing a place, vehicle or other thing to be searched and excluding any person from there (section 116)
- powers of detention incidental to search of places or vehicles (section 118)
- powers of search by a person who has a power of arrest (section 119)
- stopping vehicles for search (section 121)
- moving vehicles for search / safekeeping (section 122)
- seizure of items in plain view (section 123)
- items of uncertain status may be seized (section 112)
