SURVEILLANCE Flashcards
Lawful surveillance when lawfully in Private premise
Unaided
- observation
- hearing
- smell
Record audio or visual so long as the device does not enhance ability to observe or hear
What is surveillance
- Observing and recording observations
- intercepting private communications
- ascertaining the location of a thing or person, or whether a thing has been interfered with
What are Surveillance devices
Devices which assist or enhance normal capabilities
- Visual
- Interception
- Tracking
What is a Visual Surveillance Device
Any electronic, electromagnetic, electro-optical, mechanical or optical apparatus, equipment, instrument or other device that is used to observe or record a private activity
What are a persons Rights to privacy
Privacy in their own home
Expectation they should be able to conduct lawful activities in private
To refuse entry to others
Section 46 - Activities for which surveillance device warrant required
-Observation and of private activity in private premises, and any recording, by means of a visual surveillance device
- Use of an interception device to intercept private communications
- Use of a tracking device (except when just installed to see if thing has been in some way dealt with and doesn’t involve trespass)
- Use of SD that involves trespass
- Observation in curtilage longer than specified times
Exceptions to section 46
Situations of emergency or urgency
Activities that don’t require a warrant
Places an individual “ought reasonable to expect” are private
Land in private ownership, any private premises on that land and any goods.
Private premise
Private dwelling house, Marae, anything else not falling in the definition of non-private premise
Non-private premise
Premise or part of to which members of the public are frequently permitted to have access
What is a private communication
A communication, whether oral, written or a form of telecommunication or otherwise
Where the circumstances reasonably indicate that any party to the communication desires it be confined to those parties
What is not a private communication
A communication in circumstances in Which any party ought to reasonably expect the communication may be intercepted without consent
What is trespass surveillance
Surveillance that involves trespass into land or goods.
Occurs the moment an officer steps onto private property without consent
Restrictions on obtains SDW involving trespass
Restricted to obtaining evidential material for serious offenses only - 7+ years
Section 46(d)
SDW required for use of a surveillance device that involves trespass
Curtilage definition
The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated “open fields beyond”
What does curtilage do
Defines the boundary within which a homeowner can have a reasonable expectation of privacy and where “common daily activities” take place
Curtilage surveillance limitations - s46e
A visual surveillance device may be lawfully used in the curtilage of a private premise without warrant so long as this does not exceed
- 3 hours in any total 24hr period
- 8 hours in total
Interception definition
Includes to hear, listen to, record, monitor, acquire or receive the communication either
- when it is taking place
- while it is in transit
Interception device definition
Any electronic, electromagnetic, electro-optical, mechanical or optical apparatus, equipment, instrument or other device used or capable of being used to intercept or record a private communication
Limitations on use of an interception device
An SDW will only be issued for an interception device for the following reasons
- 7+ year imprisonment offence
- Arms Act 1983 offences
- Psychoactive substances act 2013 offences
Voluntary oral communication - s47
A voluntary oral communication is where at least one party gives their consent for the communication to be recorded. There is no requirement to obtain a SDW to intercept or record a voluntary oral communication.
What is a tracking device?
A device that may be used to help ascertain, by electronic or other means, either or both of the following:
- location of a thing or person
- whether a thing has been opened, tampered with or in some other way dealt with
Tracking device limitations
Must be for an offense punishable by imprisonment
SDW for tracking device - exceptions
Where a tracking device is solely installed for the purpose of ascertaining whether a thing has been opened, tampered with or in some other way dealt with and does not involve trespass
Section 48 Situations of emergency or urgency - ingredients
- You would be entitled to apply for a SDW
- Impracticable in the circumstances to obtain a SDW
S48 Situations of emergency or urgency - qualifying offences
- 14+y and would obtain EM
- Arms Act 1983 offence (incapable or dangerous, DV Act 1995)
- A drug offence
- Situation likely to cause injury or serious property loss
- Preventing risk to life and safety
Time limit on warrantless use of surveillance device
- Must not exceed 48 hours
Approval for warrantless use of interception device
From a DI unless
- situation does not allow for prior planning
- statutory criteria is met
- opportunity arises that would be lost if not taken at the time
Section 60- Reporting warrantless use of surveillance device
Notification to a Judge within 1 month after the date of the last day of any period of 48 hours or less over which the device was used
SDW time limit
No more than 60 days after the date the warrant is issued
