SS01 Search Persons Flashcards
Section 125
Rules and obligations when searching persons
Must
RAN (reason, Act, name)
Report under s169 (some exclusions)
E.g. “My name is Constable O’Byrne, I have reason to suspect you are in possession of an offensive weapons, I intend to search you under the Search and Surveillance Act 2012”
May
Detain
Use reasonable force
Search
and others
Two general principles of all searches?
Reasonable and lawful
Section 85
Rub-down search of arrested or detained person
Person is arrested OR detained under a statutory power of detention and to ensure they are not carrying anything that may be used to -
(a) to harm any person; or
(b) to facilitate the person’s escape
* “I am Constable O’Byrne, I intend to search you under the Search and Surveillance Act 2012 to make sure you have nothing on you that could harm another person or facilitate your escape”*
What search conduct is limited to under Section 85?
Rub down
- Run or pat hand over body whether on the inside or outside of clothing (not underclothing)
- Insert hand inside any pocket or puch (other than underclothing)
Visual
Require the person to -
- Open their mouth
- Display the palms of their hands
- Display the soles of their feet
- Lift or rub their hair
Section 88
Warrantless search of arrested or detained persons (for evidential material)
Pursuant to arrest or detention and you have reasonable grounds to believe the person is carrying anything that:
(a) is evidential material relating to the offence in respect to which the arrest was made
OR
(b) may be used to harm any person
(c) may be used to facilitate the person’s escape
* “I am Constable O’Byrne, I intend to search you under the Search and Surveillance Act 2012 as I believe that you are carrying the wallet of that other man” - in respect to a charge of theft*
Section 169
Reporting use of powers
s169 - get it in on time
Must report when you use a warrantless power of entry, search or surveillance by doing an online notification as soon as practicable.
You don’t need to report
- following their arrest or detention (s85 and 88)
- search of person in lawful custody (s11)
- consent search (ss91-96)
- the exercise of a power of entry that does not confer a power of search (e.g. s14 to prevent offence or respond to risk to life or safety)
When can a person under the age of 18 consent to a search of the vehicle?
If they are driving and there is no passenger who has authority over the vehicle available to provide consent.
Section 93
Advice that must be given before consent search undertaken
In order to search someone with their consent you must -
(a) determine that the search is for a purpose authorised by s92 (i.e. to investigate if an offence has been commited); AND
(b) advise the person of the reason for the proposed search; AND
(c) advise the person that they may either consent to be searched or refused to be searched and that they may withdraw their consent at any time
* *Man walking suspiciously down the street where there have been lots of burglaries*
* “Hey, how are you? I want to search you in relation to lots of burglaries that have been happening around here recently, do you consent to me searching you? You do not have to consent and you can withdraw your consent at any time”
What would be an exception to s13 regarding returning a person’s property/money to them?
If the property/money is required as evidential material.
Section 11
Warrantless searches of people who are, or are to be, locked up in Police custody
Can search someone when their taken into lawful custody and are at a Police Station, another premises used for Police purposes or about to be placed in a vehicle being used for Police purposes (typically a booze-bus type van rather than a patrol car).
Section 11(3)
You may conduct a search after they’ve been locked up if:
(a) the person was not searched before they were locked up
(b) you reasonably suspect that they have been close to another person who has not been locked up in Police custody
(c) above but another person who has been locked up but not searched yet
(d) you have reasonable grounds to believe that the person may have anything that may be used to harm themselves or others
Someone steals a vape from a dairy, you arrest them and then search them for the vape under s88 because you have reasonable grounds to ******* that they have the evidential material on them
Believe
When exercising a power to search you may detain a person for how long?
As long as is reasonably necessary for you to carry out the search.
What can you seize under s88?
Anything in their immediate possession/control that was the subject of the search
AND
Anything else which may be lawfully seized (i.e. drugs)
What do you do if you try to search someone but they refuse?
Warn them for obstruction.
If they continue to refuse then arrest them for obstruction.
When must you return property/money after a s11 search?
Under Section 13 you must return this when they are released from you custody (unless it is required for evidential purposes).
Difference between RGTB and RGTS
Reasonable grounds to believe requires a higher standard than reasonable grounds to suspect.
Section 13
You must return property and money after seizure pertaining to s11 of a custody search once they are released from custody
UNLESS
It is used as evidential material
What do sections 91-96 cover?
Requirements regarding consent searches
