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CIB - Search and Surveillance 2012 Module > The Main Study > Flashcards

The Main Study Flashcards

1
Q

Purpose of the S and S Act (Section 5)

A
  • Modernise the law of search, seizure and surveillance to take into account advances in technologies and to regulate the use of those technologies
  • Provide rules that recognise the importance of the rights and entitlements affirmed in other enactments
  • Ensure investigative tools are effective/adequate for law enforcement needs
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2
Q

How to comply with objectives and obligations?

A
  • Ensure that it has a lawful authority to conduct such activities and exercise any other incidental power in relation to those activities including use of force
  • Conduct risk assessments when planning the exercise of those powers and take actions to mitigate risks to protect the safety of the public and employee carrying out the act’s powers
  • Only seize what police are lawfully entitled to seize
  • Provide appropriate announcements and identification in the exercise of those powers
  • Satisfy requirements detailed in the act e.g notice and inventory requirements after search or seizure
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3
Q

RGTB v RGTS

A

Reasonable grounds to suspect (RGTS) - having a sound basis for suspecting a situation or circumstance exists e.g enter because you suspect an offence has been, is being, or about to be committed

Reasonable grounds to believe (RGTB) - having a sound basis for believing that a situation or circumstance exists e.g you enter and search as believe you will find evidential material

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4
Q

When reasonable grounds are formed you must

A
  • Record your reasonable grounds for using a search power in your notebook
  • Be aware you may be required to report on your decision to use a power and grounds for using it and justify your use of a power in court or in other formal proceedings
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5
Q

What is a lawful search?

A
  • With a search warrant or
  • Under a warrantless search power
  • With the person’s consent
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6
Q

Reasonable search

A

Complies with section 21 of the NZ BOR and consider factors such as
1) The nature of the search
2) How intrusive the search is
3) Where and when the search takes place

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7
Q

Considerations for practicality for search

A
  • Is there time to gain approval and apply for a search warrant
  • Can the scene be secured under sl17?
  • Are reasonable resources (including number of staff) available to minimise risk and ensure safety
  • Is the evidential material at risk
  • Location of the search and who may be present
  • If not practicable to apply for a SW search by warrantless power or by consent
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8
Q

Why use a search warrant

A
  • Ensures judicial oversight
  • Provides greater protection for police and the public
  • Requires recording and reporting of results
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9
Q

Search by consent

A
  • To prevent the commission of an offence
  • To investigate whether an offence has been committed
  • To protect life or property
  • To prevent injury or ham
  • Under section 92 one or more of these situations must exist to justify consent search
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10
Q

What to advise for consent

A
  • Of the reason for the proposed search and
  • They may consent or refuse to consent to the search
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11
Q

Evidential material

A

Evidential material in relation to an offence or a suspected offence, means evidence of the offence or any other item tangible or intangible of relevance to the investigation of the offence

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12
Q

Tangible v intangible CADD

A
  • Tangible means something that can be touched
  • Means unable to be touched not having physical presence
  • S97 examples of intangible email address, access info, internet data storage
  • Concealed, altered, damaged or destroyed
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13
Q

Section 131 obligations

A
  • Identification, intention, reason, notice requirements where before initial entry you must Identify yourself by name or by unique identifier QID
  • Announce your intention to enter and search
  • State the name of the act
  • Give notice by providing a copy of the search warrant
  • Remember that when you have detained a person for the purpose of a search you must caution them (bill of rights)
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14
Q

Section 131 obligations reason

A

You must state the reason for your search and provide;
- A copy of the search warrant or a warrantless search notice to occupier
- Provide inventory of items seized
- Report your use of certain powers s169

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15
Q

Section 131 obligations reason

A

You must state the reason for your search and provide;
- A copy of the search warrant or a warrantless search notice to occupier
- Provide inventory of items seized
- Report your use of certain powers s169

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16
Q

Section 110 authorise you to

A
  • Enter and search the place, vehicle or other thing that you are authorised to enter and search
  • Search any items found in that place, vehicle or thing (if reasonable)
  • Use reasonable force in respect of any property for the purpose of carrying out the search and lawful seizure
  • Seize anything that is the subject of the search or anything else that may be lawfully seized Request assistance with entry and search
  • Bring and use any equipment found on the place, vehicle or other thing
  • Bring and use a trained law enforcement dog and its handler
  • Copy any document, part of a document, that may be lawfully seized
  • Access to a computer system or other data storage
  • Copy intangible material example computer data
  • Take photographs sound and video recordings and drawings
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17
Q

Section 116

A

If a search is impeded by any person of if RGTB that person would obstruct or hinder ability to search then you can use section 116 to
- Exclude that person from the place, vehicle or other thing that is being searched or any area in or on the place or vehicle
- Give any reasonable direction to that person
- You can secure a place, vehicle or other thing to be searched and exclude any person from there

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18
Q

Section 118

A

You can detain people when searching places and vehicles for the purpose of determining whether there is any connection between a person at the place or in or on the vehicle and the object of the search

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19
Q

Section 119

A
  • You can search people found when searching places and vehicles if you have RGTB that evidential material that is the object of the search is on that person or
  • If you have RGTS that the person is in possession of a dangerous item that poses a threat to safety and you believe that immediate action is needed to address that threat
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20
Q

Section 120

A

If you are in fresh pursuit and with RGTB that relevant evidential is still on the person, you have the power to enter any place to apprehend the person and search the person or vehicle

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21
Q

Section 121

A

Provides the power to stop a vehicle if you intend to search it and have authority to search the vehicle by
- Executing search warrant
- Using a warrantless power

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22
Q

Section 122

A

Moving vehicles for search/safe keeping

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23
Q

Section 123

A

You may seize any item you find in plain view, when searching or you observe if:
• You have RGTB that you could have seized the item under a search warrant or other search power.

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24
Q

Section 112

A

Items of uncertain status may be seized

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25
Q

Section 125

A

Rules for searching people
- Under S125(1)(i) you can search any item that the person is wearing, carrying, has in their physical possession or immediate control

  • Any search undertaken must be conducted decency and sensitivity.
  • S125(2)(J) you can seize any item person wearing, carrying, or in immediate possession if that is the item you are searching for. You may also seize any item that may be lawfully seized even if not subject of search. Remembering to promptly provide an inventory on a s268
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26
Q

Section 127

A
  • Allows you to enter any place
  • To locate the vehicle to execute the search warrant if
  • You have RGTB that the vehicle is there
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27
Q

Privileged material

A

Privilege allows holders of particular information to refuse to disclose this info.

The info is recognised as privileged. No privilege applies if the info is made, received, compiled or prepared for a dishonest purpose or to enable or aid any person to commit an offence.

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28
Q

Recognised privileged material

A
  • Legal advisers
  • Ministers of religion
  • Medical practitioners
  • Clinical psychologists
  • Informer
  • Journalists
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29
Q

Search warrant process - 7 steps

A
  • Gain prior approval
  • Gain online approval
  • Gain issuing officer authorisation
  • Plan and brief search warrant execution
  • Execution
  • Report outcomes
  • File investigation records
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30
Q

Alternative methods for search warrant application

A
  • Apply for a search warrant orally
  • Apply for a search warrant without approaching an issuing officer in person (by using the phone)
  • Secure a scene while you apply for a search warrant for a maximum period of 6 hours (s117)
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31
Q

Before application of search warrant

A
  • Be sure that there are RGTS an offence punishable by imprisonment has been, will be, is being or is about to be committed and
  • RGTB that the search will find evidential material in respect of the offence in the place, vehicle, or other thing or facility
  • Have checked the target/history NIA for other search warrant applications/outcomes
  • Have assessed the risk associated with executing the search warrant
  • Have obtained initial approval from a supervisor at or above sergeant to proceed with online application
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32
Q

Search warrant risk assessment

A
  • Must be identified
  • Assessed
  • Considered in planning how you execute the search warrant
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33
Q

Section 117

A
  • Enter and secure a place, vehicle or other thing
  • Secure any items found there
  • Direct any person to assist with entry and securing the place or vehicle or items in it
  • Is not a search power
  • Expiry of 6 hours from when it is excersised
  • Warrant is available for execution at that place or vehicle in respect of that other thing
  • The application for a search warrant is refused
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34
Q

Who can issue a warrant

A
  • District court judge
  • High court judge
  • Authorised by attorney general
  • JP
  • Community magistrate
  • Registrar
  • Deputy registrar
  • RGTS offence has been, will be or is about to be committed
  • RGTB that the search will find evidential material in respect of the offence in the place, vehicle or other thing
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35
Q

Issuing officer restrictions on search warrant including

A
  • Restricting the time when the search warrant can reasonably be executed
  • Requiring the occupier or person in charge of a place to provide reasonable assistance to the officer executing the search warrant
  • Requiring a report on the search warrant within a time
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36
Q

When a warrant application refused you should

A
  • Record the issuing officers reasons for refusing to sign
  • Consider the issues raised and if possible re-draft the application, ensuring you have addressed these issues
  • Re-submit Appln to same Issuing Officer

8b if the issues cannot be addressed
• Make further enquiries to support the Appln
• Consider continuing your investigation without conducting a search
• If the reasons for not signing SW don’t seem justified, submit a report to Legal Service

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37
Q

Who can execute a warrant how long is it valid for?

A

A person to who directed or any constable

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38
Q

When can a search warrant be executed and when its considered to be executed?

A

At any time reasonable in the circumstances or at a restricted time required by the issuing officer as a condition of execution

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39
Q

When can a search warrant be executed and when its considered to be executed?

A

At any time reasonable in the circumstances or at a restricted time required by the issuing officer as a condition of execution

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40
Q

In respect of ongoing risk assessment, in preparation for execution of warrant you must

A
  • Review and re-assess the identified risks
  • Work with others to identify and consider any further risks
  • Plan how to manage and minimise any identified risks
  • Determine how risk management will be communicated in your search warrant briefing
41
Q

Applications to postpone s131 obligations made under sl34 s&s

A
  • At the time of the search warrant application or
  • Before 7 days has passed after the search warrant execution
  • A judge can postpone these obligations for a period not exceeding 12 months. This would apply to a long term investigation
  • Primary concern is staff executing SW and other present at the target is a primary concern.
  • May be required to use reasonable force to enter the place vehicle or other thing s131 Search (on property only) and seize sllO
  • Carry out a search of a person s125
42
Q

GSMEAC ground

A
  • Location to be searched
  • Address
  • Neighbours
43
Q

GSMEAC execution

A
  • Timing
  • Method of entry
  • Roles
  • Responsibilities
  • Obligations on entry
  • Managing suspects
  • Searching for evidential material
  • Recording evidential material
  • Assisting vulnerable people
44
Q

GSMEAC admin communication

A

Admin:
- Travel to and from the place to be searched under warrant
- Timing of the SW execution
- Recording of evidential material seized

Communication:
- Cell phone numbers and radio channel
- Before execution
- During execution
- Debrief

45
Q

OC warrant should

A
  • Ensure staff present
  • Reinforce info with visuals, maps, diagrams, photos
  • Copies of important documents
  • Staff clear on roles and responsibilities
  • Tell staff about sensitive info, not for notebook
46
Q

Section 19

A

Searching person pursuant to search warrant for drugs

47
Q

What is a production order

A
  • Made under s74
  • Required person/organisation to produce documents as EM of specified offence
  • In force for period no longer than 30 days
48
Q

PO vs SW

A

PO avoids disruption, offset costs of physical presence and search, less intrusive and less costs

49
Q

Matters to consider before application for production order

A
  • Grounds for applying are met
  • Benefit of application is advantageous
  • Info sought does not make unreasonable or unnecessary demands
50
Q

Approvals for production order

A
  • District approver approval for telecommunications
  • Written consent from sergeant
  • Police executive/PNHO/DC for media organisations
51
Q

Grounds for applying for production order

A
  • Suspect an offence
  • Believe documents sought constitute EM, are or will be in possession or under control
52
Q

If oral application for PO is allowed

A

Applicant must complete application within 24 hours Issuing officer must record grounds ASAP

53
Q

Hearsay evidence can be used if reliable, indicate reliability by

A
  • Sufficient information to prove reliability
  • Indicate informants reliability and giving reliable info in the past
  • Whether information confirmed by other means
54
Q

Damage to property during warrant/search power

A
  • If justified by execution no damages will be laid
  • If not justified by execution, but grounds to execute was sound - likely not paid case by case
  • Landlords carry risk if justified warrant and execution
  • lf not justified or mistake made or unreasonable damage, compensation likely will/may be paid
55
Q

Where damage claim is likely to arise, report containing following info must be made:

A
  • Circumstances of execution
  • Grounds for execution
  • Damage circumstances
  • Outcome
  • Occupier details
  • Nature and bias of claim
  • Steps taken to prevent further loss/damage
56
Q

Securing premises

A
  • Never be left unaccompanied and insecure after forced entry as liability may arise
  • OC must make every attempt to prevent loss by securing property without incurring liability for cost
  • Means liaise with owner to secure property
  • Engage a contractor at occupiers request and cost
  • Temporary repair by staff
57
Q

Surveillance

A
  • Everyone has a right to privacy in home, right to refuse entry
  • Right to expect privacy to conduct lawful private activity
  • Act restricts surveillance activity where individuals ought to reasonably expect privacy
58
Q

What is surveillance

A
  • Planned and directed activity, overt or covert for
  • Observing and recording of people PVT
  • Ascertain location of thing or person if its been tampered with or interfered with
  • Intercepting private communications
59
Q

Surveillance risk assessment, risk must be

A
  • Identified
  • Assessed
  • Considered in planning
60
Q

What is a surveillance device

A
  • Devices which assists and enhances normal capabilities to carry surveillance
  • Interception
  • Visual
  • Tracking
61
Q

Visual surveillance device

A
  • Any electronical
  • Mechanical
  • Electromagnetic
  • Electro-opticaI
  • Apparatus
  • Equipment or other device
  • Used to observe and record private activity
  • Does not include spectacles, contacts or anything to correct subnormal vision to no better than normal
62
Q

Section 46 -activities for which surveillance device warrant required

A

Observation and recording of private activity in private premises by VSD

63
Q

Surveillance is unlawful if

A
  • If it involves trespass which is unauthorised entry onto private land or unauthorised handling of goods
  • Unless authorised by SDW
64
Q

Private premises

A
  • Private dwelling house
  • Other premises not defined as non-private
65
Q

Non-private premise

A
  • Premises or part of premises which public are frequently permitted to access
  • Include hospitals, bus station, airport, shop
  • Some parts within remain private
66
Q

Private activity

A
  • Fundamental human right
  • Participant can reasonably expect the activity is private if carried out in private premises
67
Q

Private communication

A
  • Means communication (oral, written, telecommunication, other) made under circumstances that indicate any party desires it to be confined to the parties to the communication
  • Person can reasonably expect communication to be private when interfered or intercepted
  • SOW required
68
Q

Private communication doesn’t include

A

Communication occurring in circumstances in which any party ought reasonably expect that the communication may be intercepted by some other person without express or implied consent of any party

69
Q

Trespass surveillance means

A
  • Surveillance involves trespass onto land or goods
  • Occurs the moment officer steps onto private property without consent
  • If no consent to enter private property you are trespassing
70
Q

Restrictions on use of surveillance device

A

Any warrant application to use VSD for trespass surveillance only authorised for serious offence 7 years or more imprisonment

71
Q

Section 46 - activities for which surveillance device warrant required

A

Use or surveillance device that involves trespass onto private property

72
Q

What is curtilage

A
  • Land immediately surrounding a house or dwelling, including closely associated buildings and structures
  • Defines boundaries which home owner can reasonably expect privacy where common daily activities take place
  • Activities that don’t require a warrant cover the use of VSD within curtilage of private, restricted to time limitation
73
Q

Section 46 - activities for which surveillance device warrant required

A

Observation and recording in the curtilage of private premises by VSD if duration exceeds 3 hours in a 24 hour period or 8 hours in total

74
Q

Limitations in interception device

A

Offence 7 + years arms offence psychoactive substance act

75
Q

Section 47 - voluntary oral communication

A
  • Between one or more persons where at least one party gives consent for communication to be recorded
  • No need to obtain SDW
76
Q

Tracking device

A
  • Decide used to help ascertain by electronic or other means
  • Location
  • Whether thing has been opened, tampered with, or dealt with
  • Does not include a vehicle or helicopter
77
Q

Section 46 - activities for which surveillance device warrant required

A
  • Use of tracking device
  • Except where device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with and
  • Installation doesn’t involve trespass
78
Q

Section 48- emergency or urgency where SDW may not be obtained

A
  • 14 + years offence
  • Believe SDW will obtain EM of offence
  • Arms act offence
  • Person incapable of control of arms may kill or cause GBH domestic violence act, protection order grounds
  • A drug offence
  • Situation which is
  • Likely to cause injury or serious property, damage, and surveillance is necessary to prevent offending
  • Presenting risk to life and safety and surveillance is necessary
79
Q

Two key ingredients for situation to be recognised as emergency or urgency

A
  • Entitled to apply for SDW as situation is one of serious crime activity
  • Impracticable in the circumstances, you need to use a device urgently as its not immediately practicable to obtain a SDW
80
Q

Time constraints/limitations emergency surveillance powers

A
  • Mustn’t exceed 48 hours
  • Application must still be made for SDW if surveillance will continue for period where practical to make application
  • Approval should be obtained by DI in consultation with legal, unless
  • Situation doesn’t allow it
  • Statutory criteria is met
  • Opportunity arises to obtain evidential material that will be lost
81
Q

Period for SDW

A
  • No more than 60 days
  • New application must be made to amend or extend
82
Q

Section 60 - requirement to report emergency surveillance power

A

Must provide notification to a judge within a month after the date of last day of any period of 48 hours surveillance device was used

83
Q

Evidential Material

A

Tangible - something that may be touched.
Intangible - something unable to be touched; not having physical presence’

84
Q

How long is a search warrant valid?

A

No more than 14 days from the date of issue or
No more than 30 days from the date of issue ( if you have justified why this is necessary and the Issuing Officer is satisfied.)

85
Q

When is a search warrant considered executed?

A

When you / anyone assisting you:
- have seized the evidential material specified in the search warrant, or
- leave the place, vehicle or other thing to be searched and do not return within 4 hours

86
Q

Items of uncertain status 112

A

Any item you want to remove must be within the scope of the original search
1. drugs that require analysis at a laboratory
2. large amounts of documents that may contain evidential material and it is not practicable to sort them on-site.

87
Q

Items in Plain view 123

A

You may seize any item you find in plain view, when searching or you observe if:

• You have RGTB that you could have seized the item under a search warrant or other search power.

88
Q

Oral Application for Production Order 100

A

An issuing officer may allow an appln for a PO to be made orally ( e.g. phone / in person) and excuse the applicant from putting all or part of the appln in writing if satisfied that:
Requiring a written application would result in a delay
that would compromise the effectiveness of the search, and
the question of whether the order should be issued
can be properly determined on the basis of an oral communication or personal appearance, and all required information is supplied to them (orally, or partly orally and partly in writing). (Section 100 (3))

Police employees must not incur expenditure or any indication or undertaking on behalf of Police to rectify damage caused to any property in the execution of a search warrant or statutory power, as this pre-empts any decision as to the payment of compensation.

89
Q

Policy

A

Where a claim arises / likely to arise,
OC should direct the incident to the District Commander or National Manager
Along with a report containing the following information:
• Circumstances in which SW/ Stat Power was executed;
• The grounds for its execution;
• The damage caused and the associated circumstances;
• The outcome of the SW or Stat Power being executed;
• Details of owner of property and occupier / user of the property, at the relevant time;

90
Q

Securing Premises

A

Premises must never be left unoccupied / insecure after a forced entry

Liability for any loss may arise, e.g. if contents are stolen from address. Make every attempt to prevent such loss by securing the property without incurring a liability for costs on behalf of Police.

Generally this will mean:
- liaising with owner/ occupier to secure their property.
If necessary / practicable, offer to wait for the owner / occupier I agent, to arrive to do this or
- at the occupier/ owner’s request, engage a contractor to make premises secure on the understanding that the occupier or owner will bear the cost, or
- effect a temporary repair where feasible, e.g. by boarding up a window.

91
Q

Voluntary Oral Communication

A

A comm between one or more persons
where at least one party in the communication
gives their consent for the communication to be recorded
There is no requirement to obtain a SDW
to intercept and record a voluntary oral com

92
Q

Why use a search warrant:

A
  1. Ensures judicial oversight
  2. Provides greater protection for Police and the
  3. Requires recording and reporting of results
93
Q

Privileged material includes material gained through communication with:

A

• legal advisers
• ministers of religion
• medical practitioners
• clinical psychologists
• informers (informants)
• journalists

94
Q

Who can Authorise a Search Warrant

A

• District Court Judge
• High Court Judge
Or any person authorised by the Attorney General such as:
• Justice of the Peace
• Community Magistrate
• Registrar
• Deputy Registrar

95
Q

Duration of Production Order

A

In force for the period specified in the order (not exceeding 30 days after the date on which the order is made). (Section 76).

96
Q

A surveillance device

A

is a device which assists and enhances your normal capabilities to carry out the surveillance.
• a visual surveillance device
• an interception device
• a tracking device

97
Q

Section 46 - Activities for which surveillance device warrant required

A

(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

98
Q

Consent to the search of place/vehicle/other thing for a person under 14

A

A person under 14 is unable to consent to the search of place/vehicle/other thing

Unless they are found driving with no passenger of or over 14 with authority to consent to the vehicle’s search.

99
Q

Report of consensual search

A

Is not required under S and S Act.

CIB - Search and Surveillance 2012 Module (1 decks)

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