Surveillance

Question 1

What is surveillance?

Answer 1

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 2

What is a surveillance device?

Answer 2

A surveillance device is a device which assists and enhances your normal capabilities to carry out the surveillance.
A surveillance device may be any one or more of the following kinds of device.
• a visual surveillance device
• an interception device
• a tracking device

Question 3

What is a visual surveillance device?

Answer 3

Visual surveillance device –

(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical 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 4

When is a surveillance device warrant required?

Answer 4

Section 46 Activities for which surveillance device warrant required
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.

Question 5

Private lands and goods

Restricted activity

Answer 5

Where surveillance with a surveillance device is concerned, the Search and Surveillance Act restricts surveillance activity in places an individual ‘ought reasonably to expect’ are private.

Question 6

Private premises

Answer 6

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

Question 7

Non-private premises

Answer 7

Non-private premises means 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 are non-private premises. E.g theatre, consulting room, office, staff meal room.

Question 8

Private activity

Answer 8

The definition of private activity 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 9

Private communication

Answer 9

Private communication –

(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 10

Trespass and trespass surveillance

Answer 10

Trespass surveillance means –
Surveillance that involves trespass onto land or trespass to goods.
Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent

Question 11

What is curtilage?

Answer 11

Curtilage –
Means 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.

Question 12

Curtilage limitations

Answer 12

Section 46 –
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 13

Interception

Answer 13

Intercept in relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communication either –
• when it is taking place, or
• while it is in transit

Question 14

Interception device

Answer 14

Interception device –

(a) means any electronic, mechanical, electromagnetic, optical or electro-optical 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.

Question 15

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

Answer 15

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

Question 16

Voluntary oral communication

Answer 16

A voluntary oral communication is 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.

Question 17

What is a tracking device?

Answer 17

Tracking device –

(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.

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 18

When may a surveillance device be used without warrant?

Answer 18

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

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 19

What are the grounds for emergency, warrantless use of surveillance device?

Offences and situations

Answer 19

suspected offence has been, is being, or is about to be committed and is:
• 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 20

Time constraints for emergency surveillance?

Answer 20

not exceeding 48 hours.

Question 21

Who can authorise emergency surveillance?

Answer 21

Approval to use an interception device in an emergency situation should be obtained from a Detective Inspector unless:
• 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 22

Requirement to report emergency surveillance

Answer 22

When a warrantless surveillance power is exercised the enforcement officer must provide a 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 surveillance device was used.

(Report in the Search and Surveillance system)

Question 23

Period of surveillance device warrant is limited

Answer 23

A surveillance device warrant may be issued for a period of no more than 60 days after the date on which the warrant is issued, and is in force for that period.

Question 24

Curtilage - Suburban house versus rural property

Answer 24

The curtilage of a dwelling house does not necessarily equate with the boundary of the property. Thus the curtilage of a suburban house is likely to be clearly defined by a fence line whereas on a farm, the house and curtilage will form a small part of the whole property.