Surveillance

Question 1

When Police lawfully enter private premises then you can?

Answer 1

Carry out lawful surveillance by means of your unaided observation, unaided sense of hearing, and unaided sense of smell.

You can also record, by way of audio or visual device, what you see or hear there, providing that the device you use does not enhance (e.g. amplify or enlarge) your ability to observe or hear.

However, surveillance by way of a device that enhances your ability to conduct that surveillance, is recognised as more intrusive

Question 2

What is surveillance ?

Answer 2

Police surveillance is planned and directed activity. Either open or covert, and for the purpose of:

• observing, and any recording of that observation, of people, vehicles, places and things
• ascertaining (tracking) the location of a thing or person, or whether a thing has been interfered or tampered with
• intercepting a private communication

Question 3

Any surveillance work (with or without warrant) is inherently risky. These risks must be:

Answer 3

• identified
• assessed
• considered in planning before surveillance is executed

Apply TENR to assess: 
• threat 
• exposure 
• necessity 
• response 

Risk assessment is a component of the surveillance device warrant application process and must be repeated before a surveillance device warrant is executed.

Question 4

What is a surveillance device?

Answer 4

A surveillance device is a device which:
assists 
and 
enhances 
your normal capabilities to carry out the surveillance.

Question 5

A surveillance device may be any one or more of the following kinds of device.

Answer 5

• a visual surveillance device
• an interception device
• a tracking device

Question 6

Visual surveillance device ?

Answer 6

(a) means any electronic, mechanical, electromagnetic, optical, or electrooptical instrument, apparatus, equipment, or other device that is used to observe, or to observe and record, a private activity, but (b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.

Question 7

Some exceptions apply to the requirement to obtain a surveillance device warrant for the use of a visual surveillance device.

These are:

Answer 7

• situations of emergency or urgency (although use of a surveillance device in these situations must still be reported in the on-line system);

and

• activities that do not require a warrant

Question 8

The Search and Surveillance Act restricts surveillance activity in places an individual ‘ought reasonably to expect’ are private.

Answer 8

• land (in private ownership) and any private premises on that land, and ‘goods’.
• Goods generally mean chattels and include vehicles and other tangible belonging

Question 9

Private premises means ?

Answer 9

A private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises

Question 10

Non-private premises means ?

Answer 10

Premises, or part of a premises, to which members of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway station, airport or shop.

Note: Not all parts of hospitals, bus stations etc are non-private premises.

Areas that would be considered as private are:
• hospitals – theatres, consulting rooms
• railway station – office area , staff meal room

Question 11

The definition of private activity?

Answer 11

Acknowledges fundamental human rights.

A participant in an activity can reasonably expect the activity is private, if it is carried out in private premises.

But – ‘ought reasonably to expect’ must be an objective test i.e. what any person would expect.

Question 12

Where private activities occur is of key importance?

Answer 12

Consider:

– would you expect your participation in the following activities to be private?

• sleeping in a hotel room
• planting in your back garden • trying on clothes in a changing room

Be aware – private activities may occur in places that do not fit the definition of private premises.

Question 13

Private communication ?

Answer 13

(a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
(b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so.

Question 14

Trespass surveillance means ?

Answer 14

Surveillance that involves trespass onto land or trespass to goods.

Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.

For surveillance purposes, if you do not have consent to enter onto private property, then you are trespassing.

Question 15

Section 46 – Activities for which surveillance device warrant required ?

Answer 15

(a) Use of an interception device to intercept private communications
(b) Use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods.
c) Observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.
(d) Use of a surveillance device that involves trespass onto private property

(e ) Observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of that observation, for the purposes of a single investigation, or a connected series of investigations, exceeds –

(i) 3 hours in any total 24-hour period; or
(ii) 8 hours in total

Question 16

Restrictions on use of surveillance devices Any warrant application to use a visual surveillance device for trespass surveillance will only be authorised for ?

Answer 16

Obtaining evidential material for serious offences.

Any warrant application to use an interception device, whether or not a trespass surveillance occurs, is restricted to obtaining evidential material for serious offences only.

(A serious offence is an offence punishable by 7 years imprisonment or more).

Question 17

Curtilage – Means?

Answer 17

The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’.

It defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.

Activities that do not require a warrant cover the use of a visual surveillance device within the curtilage of private property but usage is restricted to time limitations.

Question 18

Explanation: The curtilage of a dwelling is?

Answer 18

The ground between the fence, garden, hedge or mowed grass border and the dwelling. It can be taken to mean a garden, yard or field, or other piece of ground or building near to or belonging to a house.

The curtilage of a dwelling does not necessarily equate with the boundary of the property, although in the vast majority of cases the boundary and the curtilage will coincide exactly. Thus, the curtilage of a suburban house is likely to be clearly defined by a fenceline whereas on a farm, the house and curtilage will form a small part of the whole property.

Question 19

Explanation: A visual surveillance device may be lawfully used without warrant to gather evidential material for a serious offence if its usage does not exceed the established time limits. Example ?

Answer 19

Constable Brown receives information a man is growing cannabis in an area behind his house. The information is not substantiated and Constable Brown decides to begin his investigation by viewing the property through his binoculars from a nearby hill to determine if a cannabis plot can be seen on the property.

Question 20

Intercept in relation to a private communication, includes:

Answer 20

Hear
Listen to
Record
Monitor
Acquire or 
Receive the communication either –  

• when it is taking place, or
• while it is in transit

Question 21

Interception device ?

Answer 21

(a) means any electronic, mechanical, electromagnetic, optical or electrooptical instrument, apparatus, equipment or other device that is used or is capable of being used to intercept or record a private communication; but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.

Note: A surveillance device warrant is required to use an interception device to intercept a private communication.

Question 22

A surveillance device warrant will only be authorised for use of an interception device for gathering evidential material for:

Answer 22

• offences punishable by 7 or more years imprisonment
• identified Arms Act 1983 offences
• identified Psychoactive Substances Act 2013 offences

Question 23

A voluntary oral communication is?

Answer 23

A communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (section 47).

There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.

Example:
An offender admits to his role in a drug ring and agrees to allow police to record his telephone conversation with the ringleader to gather evidential material.

Example:
A CHIS agrees to wear a device that will record his telephone conversation with a gang leader who is under investigation for a series of armed robberies.

Question 24

Tracking device ?

Answer 24

(a) means a device that, may be used to help ascertain, by electronic or other means, either or both of the following:

(i) the location of a thing or a person;
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but

(b) does not include a vehicle or other means of transport, such as a boat or helicopter.

Although the use of a tracking device is considered to be less intrusive to an individual’s privacy (as it only reveals the location of a thing or a person in possession of that thing), the use of a tracking device requires a surveillance device warrant.

A surveillance device warrant may authorise the use of a tracking device to obtain evidential material for the investigation of any offence punishable by imprisonment.

Question 25

Specialist support

Tracking devices may only be used with?

Answer 25

The assistance of specialist squads.

Covert surveillance using sophisticated electronic surveillance devices must be undertaken only by specialist trained officers.

Question 26

Section 48 acknowledges that in certain situations, police may need to act immediately without warrant to use any 1 or more surveillance devices.

Two key ingredients exist for any situation to be recognised as one of emergency or urgency. These are?

Answer 26

Ingredient – ‘entitled to apply’
Means – you would be entitled to make an application for a surveillance device warrant as the situation is one of serious criminal activity.

Ingredient – ‘impracticable in the circumstances’
Means – you need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant.

Question 27

Section 48

Surveillance without warrant in situations of emergency or urgency is permitted only where the above circumstances apply and the suspected offence has been, is being, or is about to be committed and is:

Answer 27

• punishable by 14 years imprisonment or more and
• you believe that use of the surveillance device would obtain evidential material in relation to the offence:
• an Arms Act 1983 offence − or a person by reason of their physical or mental condition (however caused) is incapable of having proper control of the arms; or may kill or cause bodily injury to any person; − or that under the Domestic Violence Act 1995 a protection order or a police safety order is in force against the person; − or there are grounds to make an application against him or her for a protection order.
• a drug offence; or

there is a situation which is:

• likely to cause injury or serious property loss / damage and surveillance is necessary to prevent offending from being committed or continuing
• presenting risk to life and safety and surveillance is necessary as an emergency response (section 14)

Question 28

In situations of emergency or urgency police must be able to act with immediacy and with adequate tools to be able to fulfil their duties and obligations under the Policing Act 2008. However, the warrantless period for the use of a surveillance device in a situation of emergency or urgency is a period ?

Answer 28

Not exceeding 48 hours.

An application for a surveillance device warrant must still be made if the surveillance might continue beyond the period within which it is practicable to obtain a warrant.

The warrantless period allows police flexibility to act. The time restriction that applies before a warrant application must be made ensures proper oversight and reporting is maintained.

Question 29

Approval to use an interception device in an emergency situation should be obtained from a Detective Inspector unless:

Answer 29

• the immediacy of the situation does not allow for prior planning and approval from a Detective Inspector in consultation with Legal Services; and
• statutory criteria is met; and
• an opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time.

Question 30

When a warrantless surveillance power is exercised the enforcement officer must provide a notification (report in the Search and Surveillance system) to a:

Answer 30

Judge within 1 month after the date of the last day of any period of 48 hours or less over which the surveillance device was used.

Question 31

A surveillance device warrant may be issued for a period of?

Answer 31

No more than 60 days after the date on which the warrant is issued, and is in force for that period.

There is no warrant renewal procedure under the Act.

To extend the period of 60 days or the lesser period for which the warrant is valid, a new application for a surveillance device warrant will be required.