Tarukino Flashcards
Entry to a Clandestine Laboratory
9.3.1 Unplanned Entry
In an unplanned entry situation Police should:
. convert unplanned entry into a planned response and investigation
. risks Clan Labs require immediate response lead agency with aprpr8 support.
. status quo maintained until arrival response agency.
NCLRT
Section 20 –
Warrantless search of places and vehicles in relation to
some Misuse of Drugs Act 1975
offences
A constable may enter and search a place or vehicle without a warrant if RG—
(a) RGB not practicable obtain warrant, in/on
place/vehicle there is—
(i) controlled drug specified in
Schedule 1
Part 1 of Schedule 2
Part 1 of Schedule 3 or
a precursor substance in Part 3 of Schedule 4
(b) suspect in/on place/vehicle an offence against the Misuse of Drugs Act 1975 has/is/about 2b committed, re controlled drug or precursor substance; and
(c) to Blv if entry/search nt caryd out imdiatly, Ev mterl re sspctd ofnce will be CADD
Section 21 – Warrantless searches of people found
in/on places/vehicles
A const conducting a srch of a place/vehicle under
sec 20 may, without warrant, search any person found in/on the place/vehicle.
Section 22 – Warrantless power to search for controlled
drugs and precursor substances if offence suspected
against Misuse of Drugs Act 1975
(1) A const may, search a person without a warrant.
(2) These circs inclde if const has RGB
(a) person is in possession of —
(i) a cntrld drug spcifyd / dscrbd in
Sched 1 of the Misuse of Drugs Act 1975; or
Part 1 of Schedule 2 of the
Part 1 of Schedule 3 of the
or a precursor sbstnc spcfyd /described in
Part 3 of Schedule 4 of
+ ofnc has/is/about 2b cmtd, in respect of that
controlled drug or precursor substance.
(3) This section does not— (a) limit section 20 or 21; or
(b) authorise a const 2 ntr/srch a place/vehicle except in accordance with those sections.
Section 124 Search and Surveillance Act 2012 –
Internal searches generally prohibited
(1) EO not conduct an internl srch any part body of any person, except with person’s consent, srchg the person’s mouth.
(2) const mustn’t require any person conduct internal srch any part of body of any person, excpt as provided in section 23 (which relates to internal searches in some circumstances of people under arrest for offences against the Misuse
of Drugs Act 1975).
Warrantless searches of people in relation to drugs
People found in or on places or vehicles
If you are conducting a search of a place or vehicle under section 20 (relates to some Misuse of Drugs offences - see the Warrantless powers to search
places, vehicles and things chapter) you may, without a warrant, search any person found in or on the place or vehicle. (s21)
Warrantless searches of people suspected of drug offences
You may search a person without a warrant if you have RGB person is in possession of:
- a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or
Part 1 of Schedule 3 or
a precursor substance in Part 3 of Schedule 4,
and
· suspect that an offence against the Misuse of Drugs Act 1975 has/is//about 2b comtd in respect of that controlled drug or precursor substance. (s22)
Approval for drug searches
Unless impracticable in the circumstances, obtain approval from a sergeant or above before exercising this warrantless search power.
Internal
searches
What is an internal search?
An internal search is an internal examination of any part of the person’s body by means of:
· an X-ray machine or other similar device, or
· a manual or visual examination (whether or not facilitated by any instrument or device) through any body orifice. (s23)
What is not an internal search?
a visual examination (whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, and ears, but must not insert any
instrument, device, or thing into any of those orifices.
A visual examination in these circumstances is not an “internal search” and is permitted as part of a rub-down search. (s87)
Hill v Attorney- General (1990) 6 CRNZ 219 (CA)
Reasonable grounds for belief, formerly
s18(2) MDA, now s 20 Search & Surveillance Act 2012
Facts TOs stpd taxi ownd by Hill, cled COPS hu srcd Cab wthot wrnt re MsUs Drgs Act.
Hill srtd Cvl prcdngs but nt scsful.
Crt of Apl - lwflness of srch 4 drgs cnsdrd by H Crt
Held
At rlvnt tym th rlvnt prt of s18(2) MsUs Drgs Act prvdd
whr any mmbr of Plc hs RGB thr’s in/on any vhcl cntrld drg
1st Schedule or
Part I of the Second Schedule or
Part I of the Third Schedule to the Act and that an offence against Act has / is suspected of been comtd in respect of that drug, he
… may nter & srch vhcl & or any prsn foud thrin/on vhcl and any person found therein / thereon as if authorised to do so by a search warrant issued under section
198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.”
(See now s20 S&S Act 2012.)
It’s provided safeguards for the proper use and monitoring of a srch wrnt under s 18(2), the legsl8n carefully limited the subject matter.
It is only those drugs falling within the
First Schedule,
Part I of the Second Schedule and
Part I of the Third Schedule.
The right to search without warrant is triggered only when there’s RGB one of the drugs expressly included in the 1st Schedule or in Part I of the other Schedules is prsnt
Comment
The decision emphasises the specific nature of the power to search for drugs without
warrant. The power applies only to those well-known drugs in the First Schedule and the first Parts of the Second and Third Schedules – and, since 2006, to specific precursor substances.
“RGB” will usually be a two step process:
· First, are there RGB a controlled drug is in the house, vehicle etc, in respect of which an offence against the Act has been or is being committed; AND
· Second, are there RGB the drug involved is one of
those specified.
In most cases there should be little difficulty in forming the second belief on RG. The information prompting the search will often identify the drug involved.
It would be helpful, however, for all members to keep abreast of the packaging and distribution methods used locally and the types of controlled drugs which are currently available.
The searching officer does not need to know the
identity of the drug, just that there are “RGB” it is
involved.
In the Hill case the sergeant’s evidence was that he did not turn his mind to this issue.
Collins v Police [2007] BCL 56
Search: demeanour, appearance and “RGB”
Background
This was an appeal against conviction in the District Court on two charges of
possessing Class A Drugs (methamphetamine and cocaine) contrary to s7(1)(a) of the Misuse of Drugs Act 1975.
The prosecutions arose following the search of a vehicle in down town Auckland in the early hours of a Sunday morning. The issue was whether police had proper
grounds for conducting the search under s 18(2) of the Misuse of Drugs Act 1975, that is; did the searchers have RGB there were drugs in the vehicle. (See now s 20 Search and Surveillance Act 2012.)
The driver of the vehicle was approached by two officers when he happened to park up after being seen driving at 10 to 15 kph in a vehicle with expired registration with
a wide-eyed gaze.
The constable observed, during the kerb side conversation, that the accused was dry swallowing; rubbing his tongue over his lips, and was nervous and anxious. The constable said the signs were consistent with a person who had recently consumed
methamphetamine.
The second officer, a sergeant with 28-years experience including two years patrolling the CBD and focusing on drug offending, described a fidgety and nervous
person, reluctant to maintain eye contact, with very slim build and grey complexion with eyes wide and glazed.
He said there were common signs of someone who had
recently used methamphetamine.
The decision
The High Court found that evidence of demeanour and appearance, whilst perhaps warranting strong grounds for suspicion and, seemingly, an actual belief in the
consumption by the officers concerned, did not provide police with RGB under the Act.
The Court found the problem with accepting the lawfulness of the search in these circumstances was the symptoms were also symptoms could be exhibited by
persons who have consumed drugs lawfully obtained and that nervousness can be experienced by innocent people being interviewed by the police in public.
The Court contrasted the present case with R v Carroll (21 May 2004, Rodney Hansen J,) where the search was deemed lawful.
In that case the suspect, as well as exhibiting glazed eyes, stopped in his tracks when he sighted police and turned on his heel at quick pace.
When spoken to by police, the accused was also trying to conceal something behind his back. In holding the evidence inadmissible in the present case, the Court considered that acting on the ground of a suspicion could not be saved as reasonable in the circumstances and that the balancing Shaheed exercise would not save the evidence given the low level offending (which resulted in small fines being imposed by the District Court Judge) and the not insignificant breach of the appellant’s rights.
The conviction was quashed.
Comment
Although each case will be decided on its facts, evidence of demeanour and appearance alone is unlikely to justify a search under the Search and Surveillance Act provisions [or, indeed, any other police procedure requiring reasonable belief on
the part of an officer].
R v T (1996) 3 HRNZ 77 (CA) internal search, see now s 124 Search and Surveillance Act 2012 (formerly s18A of the Misuse of Drugs Act 1975)
Facts
Police executed a search warrant at certain premises. After the police had gained entry it appeared to the officers that the appellant, who was inside, had something concealed in her mouth.
The appellant was restrained and told to spit the object out. She refused, and made a further attempt to swallow the item. The appellant was then laid face-first on a bed and again was told to spit out the
object. Eventually she spat out a large roll of Glad wrap which was later found to contain 17 morphine sulphate tablets.
Appeal
The appellant was charged with possession for supply of a Class B controlled drug. She argued on appeal that the package was obtained by unlawful means amounting to unreasonable search and seizure in breach of her rights under section 21 of the
NZ Bill of Rights Act. The unlawfulness relied upon was contravention of what is now s 124 Search and Surveillance Act 2012.
Decision
The Court of Appeal confirmed the finding in the District Court that there had not been an internal search within the ambit of the section. The prohibition in the
section is of a manual or visual examination of the interior of the mouth and does not prohibit the viewing of what can be seen by normal observation of the face, and when the mouth is open for speech.
The Court noted that the purpose of the section
is to prevent invasion of the body contrary to accepted standards of dignity and privacy and, although the police had restrained the appellant (to prevent her
swallowing) their conduct had not amounted to an internal examination.
Comment
This decision is consistent with previous decisions involving observations by police rather than search per se — see R v Dodgson, Ten-One No 116, p 13 — and accords with common sense.
Clearly not every observation attracts the need for statutory authority or a search warrant. Actions following an observation, however, should not go beyond what is reasonably necessary to carry out any authorised search, and should never put the suspect in any form of physical danger.
R v Roulston [1998] 2 NZLR 468 – internal search, see
now s 124 Search & Surveillance Act 2012 (formerly s18A
of the Misuse of Drugs Act 1975)
The appellant was strip-searched by police pursuant to the Misuse of Drugs Act 1975. In the course of removing his underpants a small package subsequently found
to contain restricted drugs was seen in the crutch of his underpants.
The appellant placed the package in his mouth. It appeared to the constable that the appellant was
attempting to swallow it. A struggle ensued during which police officers applied force to the appellant’s neck and head area, closing his nostrils and depressing his throat.
The appellant opened his mouth to shout out and the package was ejected on to the floor where it was seized by a police officer.
On the balance of probabilities the Court found that the appellant’s motive for placing the package in his mouth was in order to provoke an internal search of his
mouth by the police in contravention of what is now s 124 of the Search and Surveillance Act 2012 in the expectation or hope of successfully challenging the
admissibility of critical evidence.
The Court found on the balance of probabilities that the primary purpose for the officers’ action was to induce the appellant to eject the package but behind that
primary purpose, the officers wished both to prevent him from ingesting the drugs putting his life and health at risk and to secure and preserve the evidence.
The appellant argued that the evidence should be inadmissible. He argued that the actions of the police:
· amounted to at least an attempt to conduct an internal search in contravention of the section;
· were an unreasonable search in breach of a 21 of the New Zealand Bill of Rights Act 1990; and
· amounted to cruel and degrading treatment contrary to ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990.
Held
(1) An internal search was not completed as neither of the constables put their fingers or any instrument into the appellant’s mouth. It was unrealistic to suggest that what occurred was an internal search in that the police were attempting to conduct an internal search but, because of the appellant’s efforts to resist them, they were unable to carry it out.
Rather, the police attempt to seize the package was interrupted by the appellant placing it in his mouth and the police endeavoured to prevent him swallowing the package. It would be artificial to classify this incident in the course of a lawful search as an “internal search” or an attempt to undertake an internal
search.
(2) One of the officers’ concerns was fear for the appellant’s safety should he be permitted to swallow the package. In seeking to prevent him doing so they used no more force than reasonably necessary. In the context, it could not be said that the search or seizure of the drug was unreasonable. In reaching this conclusion regard could be had to s 41 of the Crimes Act 1961, the plain meaning of which was to provide persons with justification in using such force as is reasonably necessary in circumstances where that force is required to prevent a suicide or the commission of any offence likely to cause immediate and serious injury to the person or property of anyone.
(3) It was far-fetched to argue that the actions of the police amounted to cruel and degrading treatment contrary to ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990. Appeal dismissed.
Observation
It is implicitly recognised by what is now s 124(1) of the Search and Surveillance Act 2012 that the mouth is not necessarily to be accorded the same degree of
sanctity as other more private parts of the body. Nor should it be overlooked that the mouth may be used in a manner and for a purpose which is not available in
respect of other internal parts of the body.
Accordingly, where a person being searched deliberately places a drug in the mouth to avoid it being seized or to provoke the police into the use of force, there is no persuasive case for preventing
the police using reasonable force to take possession of the drug.
This course is even more acceptable if the suspect has, by placing the drug in the mouth, placed their
health or life at risk.
Sneller v Police [2007] NZAR 405 (High Court) obstruction, internal search, see now s 124 Search and Surveillance Act 2012 (formerly s18A of the Misuse of Drugs Act 1975)
In this case S appealed successfully from conviction for wilfully obstructing a constable acting in the execution of powers under the Misuse of Drugs Act 1975, when he refused to spit something out of his mouth when requested, and a resulting lengthy physical struggle failed to overcome his resistance (though the application
of pepper spray resulted in S expelling chewed pieces of some substance like plastic wrap which produced negative results on drug tests).
The HC noted that the power of search of persons in what is now s 124 Search and Surveillance Act 2012 is limited as regards internal searches, which require the
person’s consent if an internal search of the mouth is to be undertaken. It held that, given the elements of the section and applying R v Tupara ((1996) 3 HRNZ 77
(CA) forcing a mouth open to permit inspection constitutes an internal search and therefore requires consent, a duty to co-operate by opening the mouth and spitting out, which in effect overrides the protections of the provision, cannot be implied.
Passive resistance rather than obstruction was involved here and S had acted with lawful excuse.
Held
S was entitled to decline to allow police to undertake internal search of his mouth and no specific power in MDA entitling police to require S to spit out contents of
his mouth. S was not obstructing police when he passively declined to spit out item.
In the circumstances, police case did not fail due to failure to produce actual warrant because S’s counsel did not challenge police witnesses as to whether
warrant existed and what were its terms; appeal allowed.
Section 38 –
Assistance when person may need assessment
(1) Anyone who believes that a person may be suffering from a mental disorder may at any time request the assistance of a duly authorised officer.
(2) The duly authorised officer who receives the request must—
(a) Investigate the matter to the extent necessary to satisfy himself or herself—
(i) That the concern expressed by the maker of the request is genuine; and
(ii) That there are reasonable grounds for believing that the person to whom the request relates may be suffering from a mental disorder; and
(b) Decide, on reasonable grounds, whether or not the person needs to have a medical examination urgently in the person’s own interests or the interests of any other person.
(3) If the duly authorised officer decides that the person needs to have a medical examination, but not urgently, he or she must—
(a) Arrange, or assist in arranging, for a medical practitioner to examine the person with a view to issuing a certificate under section 8B(4)(b); and
(b) Once such a certificate is issued, assist someone else to apply under section 8A for assessment of the person, or apply himself or herself if nobody else is
willing to apply; and
(c) Arrange for an assessment examination to be conducted under section 9.
(4) If the duly authorised officer decides that the person needs to have a medical examination urgently, he or she must—
(a) Try to get a medical practitioner to come to the person to examine him or her with a view to issuing a certificate under section 8B(4)(b); and
(b) If a medical practitioner is available to come to the person, take all reasonable
steps to ensure that the medical practitioner is able to examine the person,
including calling for police assistance under section 41; and
(c) If no medical practitioner is available to come to the person, try to get the
person to go willingly to a medical practitioner; and
(d If the person refuses to go willingly to a medical practitioner, take all
reasonable steps to—
(i) Take the person to a medical practitioner, including calling for police
assistance under section 41; and
(ii) Ensure that the medical practitioner is able to examine the person,
including calling for police assistance under section 41; and
(e) Once a certificate is issued under section 8B(4)(b), assist someone else to apply under section 8A for assessment of the person, or apply himself or
herself if nobody else is willing to apply; and
(f) Arrange for an assessment examination to be conducted under section 9.
(5) A duly authorised officer who receives a request need not comply with subsections
(3)(a) or (4)(a) to (d) if that officer has available to him or her a certificate issued under section 8B(4)(b) by a medical practitioner who examined the person who is the subject of the request within the 72 hours before the receipt of the request.
(6) A medical practitioner doing an examination under subsections (3)(a) or (4)(b) or (d) need not issue another certificate if that medical practitioner has available to him or her a certificate issued under section 8B(4)(b) by a medical practitioner who examined the person who is the subject of the request within the 72 hours before the
receipt of the request.
Section 41 –
Police assistance
(1) A duly authorised officer who is intending or attempting to do anything specified in
section 38(4)(b) or (d) or section 40(2) may call to his or her assistance a constable.
(2) A constable called to the assistance of a duly authorised officer for the purposes
described in section 38(4)(b) or (d) or section 40(2)—
(a) May enter the premises where the person or proposed patient or patient is; and
(b) Must, if that member is not in uniform, produce to a person in actual occupation of the premises his or her badge or other evidence that he or she is constable.
(3) A constable who enters premises under subsection (2) may, for the purposes of section 38(4)(b), detain the person where he or she is for the shorter of—
(a) 6 hours; and
(b) The time it takes to conduct the medical examination.
(4) A constable who enters premises under subsection (2) may, for the purposes of
section 38(4)(d),—
(a) Take the person to the place at which he or she is to have a medical examination; and
(b) Detain the person at the place for the shorter of—
(i) 6 hours; and
(ii) The time it takes to conduct the medical examination.
(5) A constable who enters premises under subsection (2) may, for the purposes of
section 40(2)(a),—
(a) Take the proposed patient or patient to the place at which he or she is required to attend; and
(b) Detain the proposed patient or patient at the place for the shorter of—
(i) 6 hours; and
(ii) The time it takes to conduct whichever of the following the proposed patient or patient was refusing to attend for:
(A) An assessment examination under section 9; or
(B) An assessment to which a notice given under section 11 or section 13 relates; or
(C) An examination to which a notice given under section 14A(3)(b) relates; or
(D) A review to which a notice given under section 76(1A) relates;
or
(E) Treatment in accordance with a community treatment order.
(6) A constable who enters premises under subsection (2) may, for the purposes of section 40(2)(b), take the patient back to the hospital.
(7) The constable must not exercise the power in subsection (2) without a warrant, if it would be reasonably practicable to obtain a warrant.
Section 109 –
Police may apprehend person disordered in
public place son appearing to be mentally
(1) If any person is found wandering at large in any public place and acting in a manner that gives rise to a reasonable belief that he or she may be mentally disordered, any constable may, if he or she thinks that it would be desirable in the interests of the person or of the public to do so, –
(a) Take that person to a Police station, hospital, or surgery, or to some other appropriate place; and
(b) Arrange for a medical practitioner to examine the person at that place as soon as practicable.
(2) If the medical practitioner, having examined the person, does not consider that there are reasonable grounds for believing that the person may be mentally disordered, the person shall be released forthwith.
[(3) Subsection (3A) applies if the medical practitioner, having examined the person, considers that –
(a) There are reasonable grounds for believing that the person may be suffering from a mental disorder; and
(b) It is desirable for the person to have an assessment examination urgently in the person’s own interests or the interests of any other person.
(3A) The medical practitioner must, as soon as possible,
(a) Issue a certificate under section 8B(4)(b); and
(b) Make an application under section 8A.
(4) Subject to subsection (5) of this section, in any case to which subsection (3) of this section applies any constable may –
(a) Continue to detain the proposed patient at that place until the assessment examination has been conducted; or
(b) Take the proposed patient to some other place nominated by the medical practitioner for the purpose of an assessment examination, and detain the proposed patient at that other place until the assessment examination has been conducted.
[(5) Detention under this section may last for no longer than the following times:
(a) For the purposes of subsections (1) to (3A), 6 hours or the time it takes to carry out the actions described in those subsections, whichever is shorter:
(b) For the purposes of subsection (4), 6 hours or the time it takes to conduct the assessment examination, whichever is shorter.
People with a mental disorder
The Mental Health (Compulsory Assessment and Treatment - CAT) Act 1992 provides for the assessment, treatment and care of people who have, or are suspected of having, a mental disorder.
The Act also defines their rights.
The Mental Health (CAT) Act 1992 details Police powers and duties when they help health authorities deal with mentally disordered persons on private property or wandering at large, or return a patient absent without leave from a hospital.
Police role under the Mental Health (CAT) Act 1992
The responsibility for providing services under the Mental Health (CAT) Act 1992 rests primarily with the mental health services but Police provide assistance where legislation provides for Police intervention.
Memorandum of Understanding
The New Zealand Police and the Ministry of Health have a Memorandum of Understanding (MOU) governing the practical implementation of the Mental Health Act. It:
· covers responsibilities, transportation of patients and use of force, and forms the basis of local agreements with the local mental health service
· provides that the duly authorised officer (“DAO”) is the official in charge at any incident that requires the Mental Health (CAT) Act 1992 to be invoked and a response from Police and the mental health service.
The DAO should request Police assistance only when the particular powers and specific expertise of Police are required
· provides that where a person needs to be assessed under the Mental Health (CAT) Act 1992 that this should take place in the least restrictive environment possible (such as in the community or a health facility like
an emergency department)
· states that a person’s degree of intoxication should not delay any mental health assessment.
Assessment and treatment procedure
The Act sets out procedures for assessment and, if necessary, treatment of persons who are thought to have mental disorders.
The procedure involves the mental health service and the courts. Police provide assistance only when
required as statutorily provided for in the Act.
Role of the DAO,
responsible clinician and the court
Police often interact with people who are suffering mental distress but do not meet the criteria of mental disorder as defined below. Police are not qualified to carry out mental health assessments.
When Police believe a person is suffering severe mental distress or mental disorder they should ask a DAO for assistance.
The DAO is required to investigate and decide whether or not the person needs to have a medical
examination, and whether this is required urgently.
The DAO must arrange for a health practitioner to examine the person. If there are reasonable grounds for believing the person is suffering from a mental disorder he or she can be certified for compulsory assessment, and a responsible clinician (usually a psychiatrist or doctor) must carry out a further examination.
If found to be mentally disordered, the person can be compelled, by order of the Court (either through a community treatment order or inpatient order) to
undergo treatment as long as that person’s mental disorder continues (section 28 (1) of the Mental Health (CAT) Act 1992 refers). DAO’s have other options available to them for people who do not meet the threshold of currently suffering a mental disorder.
What is a mental disorder?
‘Mental disorder’ is defined in the Mental Health (CAT) Act 1992 to mean a person is in an abnormal state of mind (continuous or intermittent) who may be delusional, or their mood or perception may be such that it poses a serious danger to the health and safety of that person or others, or seriously diminishes the capacity of such persons to look after themselves.
Key words in the above definition are:
(i) “…poses a serious danger…”, and
(ii) “…seriously diminished capacity…to look after themselves.”
Therefore a number of persons that Police likely come into contact with and they perceive as suffering a mental disorder, may not meet the criteria of the Mental Health (CAT) Act 1992, which Health professionals must follow when considering whether to detain someone.
‘Mental disorder’ does not include
Section 4 of the Mental Health (CAT) Act 1992 explains that the Act’s compulsory assessment and treatment procedures may not be invoked simply because of a person’s:
· political, religious or cultural beliefs
· sexual preferences
· criminal or delinquent behaviour
· substance abuse
· intellectual disability.
When you can assist
You can assist a DAO do any of these three things.
