Search Warrants Flashcards
What are the alternate ways of applying for a search warrant?
Oral search warrant
Without approaching an issuing officer in person (by using the phone)
secure a scene under S117 while you apply for a search warrant
What must be done after making an oral application for SW
back-capture the info in an online application ASAP
Before making an online application for SW you must:
1 - be sure there are:
- RGTS imprisonable offence has been will be or is being committed
- RGTB evidence will be located in place, vehicle or thing
2 - check target history for other SW applications/outcomes
3 - Assess risks
4 - obtained approval from supervisor
When must risks for executing SW be assessed?
before application is approved, and again before SW executed.
When can sec 117 be used and what does it allow you to do?
If SW application is to be made, or been made and awaiting result, and have RGTB evidence will be CADD can:
- enter and secure a place, vehicle or thing,
- Secure any item found there
- direct any person to assist with entry or securing place, vehicle or thing
The powers conferred by section 117(1) may be exercised until the first of the following occurs:
117(1)
(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 authorise a SW?
An Issuing Officer may be a:
• District Court Judge
• High Court Judge
Or any person authorised by the Attorney General such as a: • Justice of the Peace • Community Magistrate • Registrar • Deputy Registrar
What restrictions can an issuing officer put on a SW?
- 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
What should be done when a SW application is refused?
- record the issuing officers reasons for refusing
- consider the issues raised and re-draft the application
- re-submit the application to the SAME issuing officer
If issues cannot be addressed:
- make further enquiries to support application
- consider whether to continue investigation without search
- if reasons for refusal not justified submit a report to Legal Services for direction
Who can execute a SW and when can it be executed?
-Can be executed by the person it is directed or any constable.
-Can be executed at any time reasonable in circumstances, or
at a time required by issuing officer.
When is a SW considered executed and how often can it be executed?
It is considered executed when:
- Evidential material specified has been siezed, Or
- When you leave the P, V or T being searched and do not return within 4 hours.
It can be executed on:
- one occasion only unless,
- more than 1 execution is applied for, justified and authorised.
How long is a SW valid for?
14 days or
30 days if it has been outlined why this is justified and issuing officer is satisfied.
When are you not obliged to provide a copy of SW or inventory of property seized to occupier (s131)
when it providing a copy would
- Endanger the safety of any person or
- Prejudice ongoing investigations.
Under what sec is an application to postpone compliance with sec 131 made, to who is it made and when?
Application presented to a judge under sec 134, and should be presented:
- At time of SW application
- within 7 days of SW execution
GSMEAC:
Ground:
- location to be searched
- address
- neighbours
Situation:
- reason for search (offence)
- background of suspects
Mission:
- Address
- suspects
- evidential material sought
Execution:
- timings
- method of entry
- roles - oc scene exhibits etc
- responsibilities
- managing suspects
- search plan
- risk management
Admin:
- travel to and from
- timings
- recording of evidence
Comms:
- radio channels / cell phone numbers
- debrief
Person in charge of SW briefing should:
- ensure all staff are present
- use visual prompts with verbal information
- use maps, charts, diagrams and photos
- provide copies of important docs/info
- ensure all staff are clear in their roles
- advise what can be recorded in NBs during briefing
What additional powers/sections are available when executing a SW?
- Sec 112: Seizure of items of uncertain status
- Sec 116: securing P, V or T to be searched and excluding any person from there
- Sec 118: Detention of persons when searching Places or Vehicles
- Sec 119: Power of search of person who has power to arrest
- Sec 121: Stopping vehicles for search
- Sec 122: moving vehicles for search/safekeeping
- Sec 123: seizure of items in plain view
- Sec 125: search of persons
What are your obligations on entry for SW?
ID self by name or QID
Provide evidence of ID if not in uniform
state act/section and reason for search
announce intent to enter and search
provide copy of SW
What does sec 19 allow you to do?
Search any person found in a P, V or T where the search warrant is for an offence against MODA1975
NB: must comply with Sec 125 when searching people
What may you do when searching a person under sec125 ?
- Detain person to enable the search
- Use reasonable force for the search
- Search any item they are wearing, carrying or in their possession or control
- Seize anything they are carrying or in possession or control of.
What does sec 127 allow you to do and what grounds must there be?
Sec 127:
Allows you to enter any place to locate a VEHICLE to execute a SW on that vehicle.
Must have RGTB vehicle is in that place.
When can you seize items of uncertain status under sec 112?
And when can you exercise this power?
When carrying out lawful search and it is not reasonably practicable to determine whether an item can be lawfully seized you may:
Remove items for examination or analysis to determine if can seize them lawfully
- if exercising search power
- doing lawful search of person
- lawfully in place or vehicle
When can you seize items in plain view under sec 123?
When searching or observe an item in plain view and:
have RGTB that you could have seized the item under a search warrant or search power
How long can you postpone obligations under sec 131?
7 days
or if an application is made under sec 134, a judge can postpone obligations for 12 months.
