Warrantless Powers (Search and Surveillance)

Question 1

What are the warrantless Powers to Enter and Search When Effecting Arrest?

Answer 1

Section 7 – Entry without warrant to arrest person unlawfully at large

Section 8 – Entry without warrant to avoid loss of offender or evidential material

Section 9 – Stopping a vehicle to find persons unlawfully at large or who have committed certain offences (imprisonable offences)

Section 10 – Powers and duties of constable after vehicle stopped

Question 2

What are the warrantless Powers for Evidential Material Relating to Serious Offences?

Answer 2

Section 15 – Entry without warrant to find and avoid loss of evidential material relating to certain offences

Section 16 – Searching people in public place without
warrant for evidential material relating to certain offences

Section 17 – Warrantless entry and search of vehicle for
evidential material relating to certain offences

Question 3

What are the warrantless Powers in Relation to Arms Offences?

Answer 3

Section 18 – Warrantless searches associated with arms

Question 4

What are the powers in Relation to Misuse of Drugs Act 1975 Offences?

Answer 4

Section 20 – Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences

Section 21 – Warrantless searches of people found in or on places or vehicles

Section 22 – Warrantless power to search for controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975

Question 5

What are the warrantless Powers in Relation to Offences Against s202a Crimes Act 1961?

Answer 5

Section 27 – Searching people in public places without search warrant if offence against section 202A(4)(a) of Crimes Act 1961 suspected

Section 28 – Stopping and searching vehicles without
warrant if offence against section 202A of Crimes Act 1961 suspected

Question 6

What are the warrantless Powers of Entry and Search Incidental to Arrest or Detention?

Answer 6

Section 83 – Entry without warrant after arrest

Section 84 – Warrantless entry and search of vehicle after arrest

Question 7

Section 7 – Entry without warrant to arrest person unlawfully at large

Answer 7

A constable may enter a place or vehicle without warrant to search for and arrest a person if

the constable has reasonable grounds—

(a) to suspect that a person is unlawfully at large; and
(b) to believe that the person is there.

Question 8

Section 8 – Entry without warrant to avoid loss of offender or evidential material

Answer 8

(1) In the circumstances set out in subsection (2), a constable may—

(a) enter a place or vehicle without a warrant; and
(b) search for and arrest a person that the constable suspects has committed the offence.

(2) The circumstances are that the constable has reasonable grounds—

(a) to suspect that the person has committed an offence that is punishable by imprisonment and for which he or she may be arrested without warrant; and
(b) to believe that the person is there; and
(c) to believe that, if entry is not effected immediately, either or both of the following may occur:

(i) the person will leave there to avoid arrest:
(ii) evidential material relating to the offence for which the person is to be arrested will be destroyed, concealed, altered, or damaged.

Note: Section 8 does not give you a power to search for evidential material.

Question 9

Section 9 – Stopping a vehicle to find persons unlawfully at large or who have committed certain offences (imprisonable offences)

Answer 9

A constable may stop a vehicle without a warrant to arrest a person if the constable has
reasonable grounds—

(a) to suspect that a person—
(i) is unlawfully at large; or
(ii) has committed an offence punishable by imprisonment; and

(b) to believe that the person is in or on the vehicle.

Note: Police policy states that when stopping a vehicle you must:
• be wearing a Police uniform or distinctive cap, hat or helmet with a badge of authority affixed to that cap, hat or helmet, or
• be following immediately behind the vehicle, and displaying flashing blue lights or flashing blue and red lights, and/or sounding a siren.

Question 10

Section 10 – Powers and duties of constable after vehicle stopped

Answer 10

(1) A constable exercising the stopping power under section 9 may:

(a) require any person in or on the vehicle who the constable has reasonable grounds to suspect is unlawfully at large or has committed an offence
punishable by imprisonment to supply all or any of his or her name, address, other contact details, and date of birth:

(b) search the vehicle to locate the person referred to in section 9, if the constable has reasonable grounds to believe that the person is in or on the vehicle:
(c) search the vehicle to locate property that is evidential material in relation to any offence in respect of which the vehicle was stopped under section 9, if the person referred to in section 9—

(i) has been arrested; or
(ii) is seen fleeing from the vehicle before he or she can be arrested.

(2) Before conducting a search under a power conferred by subsection (1)(c), a constable must tell the driver the object of the proposed search, if the driver is not the person referred to in section 9

Question 11

Section 15 – Entry without warrant to find and avoid loss of evidential material relating to certain offences

Answer 11

A constable may enter and search a place without a warrant if he or she has reasonable
grounds—

(a) to suspect that an offence punishable by imprisonment for a term of 14 years or more
has been committed, or is being committed, or is about to be committed; and

(b) to believe—
(i) that evidential material relating to the offence is in that place; and
(ii) that, if entry is delayed in order to obtain a search warrant, the evidential material will be destroyed, concealed, altered, or damaged.

Note: Section 15 is also intended to allow you to search a vehicle in the place you are searching. This does not include a vehicle in a public place, which is covered under section 17.

Question 12

Section 16 – Searching people in public place without

warrant for evidential material relating to certain offences

Answer 12

A constable may search a person without a warrant in a public place if the constable has reasonable grounds to believe that the person is in possession of evidential material relating to an offence punishable by imprisonment for a term of 14 years or more.

Question 13

Section 17 – Warrantless entry and search of vehicle for

evidential material relating to certain offences

Answer 13

A constable may, without a warrant, enter and search a vehicle that is in a public place if he or she has reasonable grounds to believe that evidential material relating to an offence punishable by imprisonment for a term of 14 years or more is in or on the vehicle.

Note: Section 17 only allows you to search a vehicle in a public place. Section 15 allows you to search a vehicle if it is in a place you are searching.

Question 14

Section 18 – Warrantless searches associated with arms

Answer 14

(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a person may, without a warrant, do any or all of the following:

(a) search the person:
(b) search any thing in the person’s possession or under his or her control (including a vehicle):
(c) enter a place or vehicle to carry out any activity under paragraph (a) or (b):
(d) seize and detain any arms found:
(e) seize and detain any licence under the Arms Act 1983 that is found.

(2) The circumstances are that the person is carrying arms, or is in possession of them, or has
them under his or her control, and—

(a) he or she is in breach of the Arms Act 1983; or
(b) he or she, by reason of his or her physical or mental condition (however caused),—

(i) is incapable of having proper control of the arms; or
(ii) may kill or cause bodily injury to any person; or

(c) that, under the Domestic Violence Act 1995,—
(i) a protection order or a police safety order is in force against the person; or
(ii) there are grounds to make an application against him or her for a protection order.

(3) A constable may, without a warrant, enter a place or vehicle, search it, seize any arms or any licence under the Arms Act 1983 found there, and detain the arms or licence…

(a) in respect of which a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; or
(b) that may be evidential material in relation to a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983.

Question 15

Section 20 – Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences

Answer 15

My enter and Search a place or vehicle if there is reasonable grounds to believe:
• It is impractical to obtain a warrant, and
• in or on the vehicle or place there is:

A controlled drug specified or described in

• Schedule 1
• Part 1 of Schedule 2
• Part 1 of Schedule 3 or
• A precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and

(b) to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c) to believe that, if the entry and search is not carried out immediately, evidential material will be CADD

Question 16

Section 21 – Warrantless searches of people found in or on places or vehicles

Answer 16

A constable conducting a search of a place or vehicle under section 20 may, without a warrant, search any person found in or on the place or vehicle

Question 17

Section 22 – Warrantless power to search for controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975

Answer 17

(1) A constable may, in the circumstances set out in subsection (2), search a person without a warrant if:

Reasonable grounds to suspect:

• An offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance.

Reasonable grounds to believe:
A person is in possession of:
− a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, Part 1 of Schedule 3 or a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975.

Question 18

Section 27 – Searching people in public places without search warrant if offence against section 202A(4)(a) of Crimes Act 1961 suspected

Answer 18

A constable who has reasonable grounds to suspect that a person is committing an offence against section 202A (4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances) may, without a warrant, search the person.

Question 19

Section 28 – Stopping and searching vehicles without

warrant if offence against section 202A of Crimes Act 1961 suspected

Answer 19

(1) A constable who has reasonable grounds to suspect that:
(a) a person travelling in the vehicle or who has alighted from it is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances); and
(b) the vehicle contains a knife, offensive weapon, or disabling substance.

Question 20

Section 83 – Entry without warrant after arrest

Answer 20

(1) This section applies if a person—

(a) arrests a person for an offence; and
(b) has reasonable grounds to believe that evidential material relating to the offence is at a place and that the evidential material will be CADD if entry to that place is delayed to obtain a warrant.

(2) The person may enter the place without a warrant to search for the evidential material relating to the offence (whether or not the person was arrested there).

Note: Section 83 is also intended to allow you to search a vehicle at the place you are searching.

Question 21

Section 84 – Warrantless entry and search of vehicle after arrest

Answer 21

A person to whom this subpart applies who has arrested a person and who has reasonable grounds to believe that evidential material relating to the offence for which the person was arrested is in or on a vehicle may enter and search it without a warrant.

Note: Section 84 is only intended to allow you to search a vehicle in a public place.

Question 22

Section 112 – Items of uncertain status may be seized

Answer 22

• If a person exercising a search power is uncertain whether any item found may lawfully be seized:
• and it is not reasonably practicable to determine whether that item can be seized at the place or vehicle where the search takes place,
• the person exercising the search power may remove the item for the purpose of examination or analysis to determine whether it may be lawfully seized.

Question 23

Section 117 – Special powers where application for search warrant pending

Answer 23

IF:
• A search warrant is about to be made, or
• has been made, and
• has not yet been granted or refused by an issuing officer, and
• the officer is present at the place or vehicle that is or is to be the subject of the application.

AND THERE ARE:
Reasonable grounds to believe:
- Evidential material may be CADD or removed before a decision is taken to grant or refuse the issue of a search warrant.

MAY:
- Enter: The place, vehicle, or other thing in respect of which authorisation to enter and search is being sought.

• Secure: The place, vehicle, or other thing in respect of which authorisation to enter and search is being sought.
• Secure: Any item or items found at that place or in or on that vehicle or other thing.
• Direct: A person to assist with the entry and securing of the place or vehicle or other thing or the securing of items in it.

POWERS PERMITTED UNTIL:

• The expiry of 6 hours from when the power is first exercised
• The warrant is available for execution at that place or vehicle or in respect of that other thing
• The application for a search warrant is refused.

Question 24

Section 121 – Stopping vehicles with or without warrant for purposes of search

Answer 24

(1) An enforcement officer may stop a vehicle to conduct a search under a power to search without a warrant if he or she is satisfied that he or she has grounds to search the vehicle.

(2) An enforcement officer may stop a vehicle to conduct a search under a power to search with a warrant issued if he or she is satisfied that the warrant
has been issued and is in force.

(3) A person who exercises a power under this section must, on the request of any person affected by the exercise of the power,—
(a) identify himself or herself either by name or by unique identifier; and

(b) state the name of the enactment under which the search is taking place and the reason for the search under that enactment unless it is impracticable to do
so in the circumstances; and

(c) if not in Police uniform, produce evidence of his or her identity.

Question 25

Section 123 – Seizure of items in plain view

Answer 25

If any enforcement officer is exercising a search power; or:
• lawfully in any place or in or on a vehicle; or
• conducting a lawful search of a person, and
• finds any item in the course of carrying out the search or as a result of observations at the place or in or on the vehicle.

AND HAS: Reasonable grounds to believe could have seized the item or items under:
- Any search warrant that could have been obtained by him or her under this Act or any other enactment; or

• Any other search power exercisable by him or her under this Act or any other enactment.