Search and Surveillance

Question 1

Warrantless powers to search people

Answer 1

Warrantless powers to search people are outlined in Searching people (later in
this chapter). These include searches of a person:
* in custody and who is or is about to be locked up (s11)
* found in a public place for evidential material (s16)
* for arms (s18)
* in relation to drugs offences (ss 21, 22, 23, 81)
* for knives, offensive weapons and disabling substances (s27)
* after arrest or detention (ss85, 88)

Question 2

Seizure and
other powers
incidental to
powers of
search - S110

Answer 2

All of the powers to search places, vehicles and things outlined in this chapter
have:
* the associated power to seize anything that is the subject of the search or anything else that may lawfully be seized
* a number of other associated general powers that can be used when exercising a particular search power.
(s110)
These other powers are described in Powers incidental to search in Part 5-
Carrying out search powers (with or without a warrant). Part 5 also outlines procedures for:
* planning and conducting searches of places, vehicles and things
* giving owners / occupiers notices about the search and an inventory of what was seized following a search
* tracking stolen property
* reporting warrantless searches of places, vehicles and things.

Question 3

S/S Act section 7

Answer 3

S7 Enter place or vehicle to arrest person unlawfully at large.

If you have reasonable grounds to…

• suspect that a person is unlawfully at large,
  and
• believe that the person is in a place or vehicle

You May….

enter the place or vehicle
without warrant to search
for and arrest the person.

Question 4

Unlawfully at large

Answer 4

“Unlawfully at large” means that the person:
* has an arrest warrant (excluding a fines warrant)
* has escaped from prison or is absent without leave
* has escaped from lawful custody, e.g. police cells or police car
* is a special or restricted patient and has escaped or failed to return from
leave
* is a care or special care recipient (with an intellectual disability) and has
escaped or failed to return from leave
* is a young person who is the subject of a Youth Court “Supervision with residence” order and they are absconding from CYF custody.
This definition is adapted from the definition in section 3 of the Act)

Note: An offender who breaches bail, but is not the subject of an arrest
warrant, will not be ‘unlawfully at large’; see R v Torvald [2006] HC
Auckland CRI-2005-092-14606.

Question 5

S/s Section 8

Answer 5

Entry to avoid loss of offender or evidential
material Sect 8

If you have reasonable grounds to…

• suspect that a person has committed an offence
  punishable by imprisonment and for which they
  may be arrested without warrant, and
• believe that the person is in a place or vehicle,
  and
• believe that if entry is not effected
  immediately, either or both of the following
  may occur:

− the person will leave the place or vehicle to
avoid arrest
− evidential material relating to the offence
for which the person is to be arrested will
be destroyed, concealed, altered or
damaged

You may……

• enter that place or vehicle without warrant, and
• search for and arrest the person you suspect has
  committed the offence.

Note: Section 8 only empowers you to search for and arrest a person. That must be your intention at the time of entry. You may not search for evidential material unless an arrest is made and a search incidental to that arrest is
undertaken under ss 83-88.

Question 6

S/S - section 14

Answer 6

S14 - Entry to prevent offence or respond to risk to life or safety.

Emergency powers

Enter place or vehicle and take any action as reasonably necessary if:

an offence is being or about to be committed that would likely cause injury to any person or serious loss / damage to property or

there is risk to the life or safety of any person

Question 7

S/S section - s15. 14yr imprisonable offence.

Answer 7

Entry and search of places to find and avoid loss of evidential material - s15.

Serious offences
If you have reasonable grounds to…

Suspect a 14yr imprisonable offence has, is being, or is about to be committed, and you believe evidential material is in a place and will be CADD, you may enter and search to find evidential material.

Section 15 is about urgency. Once that urgency has passed and the scene is secure (assuming it is not a simple case of seizing an exhibit with no further interest in the scene) a warrant should be obtained. The timing will depend on the circumstances.

The ability to secure a search scene when an application for a warrant is
pending strengthens the ‘warrant preference rule’. Unless there is some
urgency to conduct the search or a concern that the securing of the scene may not be sufficient to preserve the evidential material, it may be appropriate to invoke s117 rather than exercise a warrantless power.

Question 8

S/S - s16

14yr imprisonable offence.

Answer 8

Searching people in public place for evidential material. Section 16

If you have reasonable grounds to believe a person in a public place has evidential material on him relating to a 14yr imprisonable offence, you may search that person without a warrant.

Question 9

S17 - 14yr offence

Answer 9

Entry and search of vehicles in public place for evidential material. s17

If you have reasonable grounds to…

believe that evidential material relating to an offence punishable by 14 years imprisonment or more is in or on a vehicle in a public place

You may….

enter and search that vehicle without a warrant.

Note: If a vehicle is parked in a place other than a public place, use s15 to enter and search that vehicle.

Question 10

S/s Section 18 (1&2)
Search of person for arms (without warrant)

Unless impracticable in the circumstances, obtain approval from a sergeant (including an acting sergeant) or above before exercising any of the warrantless powers outlined above in relation to arms.

Answer 10

if you have RGT Suspect person is carrying arms or is in possession of them or has them under their control and

• The person is in breach of the arms act
  or
• the person by reason of their physical or mental condition: is incapable of proper control of the arms or
• my kill or cause GBH to any person or
• that under the Domestic violence act a PO or PSO is in force against the person or
  -there are grounds to apply for a protection order against them.

You may do ANY OR ALL of the following without warrant.

• Search the person
• search any thing in their possessions/under their control (including a vehicle.)
• enter a place or vehicle to carry out one of the above.
• seize and detain and arms or licence found.

Question 11

S/S - s18(3)

Unless impracticable in the circumstances, obtain approval from a sergeant (including an acting sergeant) or above before exercising any of the warrantless powers outlined above in relation to arms.

Answer 11

Warrantless searches associated with arms.

Arms in places or vehicles

If you have reasonable grounds to…
suspect that there are arms in any place or vehicle:

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

You may…..

without a warrant:
* enter the place or vehicle
* search it
* seize and detain any arms
or licence under the Arms
Act 1983 found there.

Question 12

s/s - S28

Answer 12

Warrantless searches for offensive weapons.

Searching vehicles for offensive weapons .

If you have reasonable grounds to…
suspect that:

• a person travelling in a vehicle (or who has
  alighted from it) is committing an offence in a
  public place against section 202A(4)(a) of the
  Crimes Act 1961, and
• the vehicle contains a knife, offensive weapon, or
  disabling substance

You may….Without a warrant

• Search the vehicle

Definitions These meanings apply in s28.

Disabling substance - ‘Disabling substance’ means any anaesthetising or other substance produced to use for disabling a person, or
intended for such use by the person who has it with them.

Offensive weapon - ‘Offensive weapon’ means any article made or altered to use for causing bodily injury, or intended for such use by
the person who has it with them.

Question 13

s/s S- S29

Answer 13

Searching vehicles for stolen property. s29

Warrantless search of vehicle for stolen property
If you have reasonable grounds to believe that any stolen property is in or on
any vehicle, you may search the vehicle without a warrant.
(s29)
Note: This section is intended to allow you to search a vehicle in a public
place. If the vehicle is on private property, you should seek a search warrant
or use an alternative warrantless power.

Question 14

Entry and search of places and vehicles incidental to arrest

S83

Answer 14

Entry and search of places after arrest. Sect 83

If you have arrested a person for an offence: and have reasonable grounds to believe

Evidential material is in the place and that delay in getting a Search Warrant would result in the evidential material being CADD,
you may enter and search the place for evidential material relating to the offence.

It does not matter if the person was not arrested there.

Question 15

Sect . s84

Answer 15

Entry and search of vehicle after arrest - sect 84

If you have arrested a person, and have reasonable grounds to ………enter the place to search for evidential material relating to the offence (whether or not the person was arrested there) without a warrant.

You May…..

Enter and search that vehicle without warrant.

In R v Cameron [2018] NZDC 16448 the Court suggested that a warrantless search for evidential material relating to the offence for which a person was arrested should take place as soon as practicable. What is practicable will depend on the circumstances. In this case, it was relevant that the arresting constable was working alone. Therefore it was not practicable for a search to be conducted immediately after the arrest.

Question 16

Warrantless use of powers, notifications and reporting

Answer 16

Step Action
1 Obtain prior approval from a sergeant (including acting sergeant) or
above where applicable (eg arms search under s18).

2 Provide a written notice to the person present during execution of the
warrantless power (POL1275) and an inventory if items seized. If no-one
was present complete form POL1275, and leave in a prominent place.

3 Make a record of your decision to use a warrantless power and the
reasons for it (ie reasonable grounds to suspect / reasonable grounds to believe) in your notebook.

4 Record the use of powers in the ‘On Duty’ application for warrantless
power notifications.

5 Where applicable, complete a notification Ten One> Home>
Notifications to notify relevant groups about drugs, firearms, children,
etc

Question 17

Consent searches. Dont forget to RAN before starting.

Answer 17

Key points to note:
* Before using a consent search, first consider using a search warrant, or if
that’s not practicable, a warrantless search power.
* You must have a reason to justify asking a person to consent to a search
and the search must not be used to go on ‘a fishing expedition’.
* You must advise the reason for the search and that they can refuse consent
or withdraw it at any time.
* A person under 14 years of age cannot consent to the search of a place,
vehicle, or other thing - unless they are found driving a vehicle and there
is no passenger 14 years or over with authority to consent to the vehicle’s
search.
* Exceptions to consent search rules include:
− search conducted as a condition of entry to any public or private place
− search conducted under a power conferred by an enactment
− entry to property under an implied licence.

If a person consents to a search of themselves, you may extend the search to any item that:
* the person is wearing or carrying, (eg a bag), or
* is in the person’s physical possession or immediate control provided the
person consents to these items being searched.

Question 18

Purposes for which consent search may be
undertaken. S92

Answer 18

You may ask a person to consent to undergo a search, or a search being made
of a place, vehicle, or other thing apparently in the person’s control for one or
more of these purposes:
* to prevent the commission of an offence
* to protect life or property, or to prevent injury or harm
* to investigate whether an offence has been committed
* any purpose in respect of which you could exercise a power of search
conferred by an enactment, if you held a particular belief or suspicion
specified in the enactment

Your request for consent to search in any of the above situations must be justified / reasoned. You cannot randomly conduct a consent search and must not use a consent search to go on “a fishing expedition” to see what might be located.

Question 19

Advice that must be given before searching - (s93)

Answer 19

Before conducting a search by consent, you must:
* determine that the search is for a purpose listed in s92
* advise the person from whom consent is sought:
− of the reason for the proposed search
− that they may consent or refuse to consent to the search.
(s93)

Wilkie v R [2019] NZCA 62 provides commentary about consent searches
undertaken under s93 requiring officers to advise the person that they may withhold consent to a search. A failure to comply with this requirement is likely to render the search unlawful and evidence obtained ruled inadmissible.
Good practice is to identify yourself by name, give the reason for your search and if not in Police uniform produce evidence of your identity.

Question 20

Withdrawal of consent

Answer 20

A person who consents to a search of themselves or a place, vehicle or thing in their control may withdraw their consent at any time. In this situation, stop the search immediately, unless a warrantless search power can be invoked to continue the search.

Question 21

Circumstances where search by consent is
unlawful. s94

Answer 21

A search by consent is unlawful if:

• it is not for a purpose set out in s92, or
• you fail to give the required advice set out in s93, or
• you undertake a search relying on consent given by a person who does not
  have authority to give that consent.

Question 22

Restrictions on persons under 14 years to
consent (s95)

Answer 22

A person under 14 years of age cannot consent to the search of a place, vehicle, or other thing. An exception is when they are found driving a vehicle and there is no passenger of or over the age of 14 years with authority to consent to the vehicle’s search.
(s95)

Section 95 does not prevent a person under 14 years from consenting to a search of themselves or anything in their immediate possession or control.

Question 23

Exceptions to consent search rules. S96

Answer 23

Consent search rules do not:

• apply to a search conducted:
  − as a condition of entry to any public or private place (eg a condition of
  entry to a sporting fixture or concert), or

− in accordance with a power conferred by an enactment, or
* affect the rule of law relating to the implied licence to enter property.

Question 24

Implied licence

Answer 24

It is assumed that members of the public, including police officers, can enter private property (eg go to the door of private premises) so far as is necessary to make an inquiry of an occupier, for any reasonable purpose or in the course of any lawful enquiry. Such an implied licence can be revoked by the
occupier at any time.

Question 25

Disadvantages of using consent
searches

Answer 25

If you have a particular belief or suspicion that is sufficient to exercise a warrantless power or to obtain a search warrant, you must exercise the power or obtain a warrant rather than rely on a consent search.

The disadvantages of consent searches are:
* the person being searched by consent can withdraw their consent at any time, which means the search must stop immediately, unless a search power can be invoked to continue the search
* if a search power is invoked after withdrawal of consent, the initial
request may be seen to be token and meaningless
* the existence or validity of any consent given may be challenged in court.

Question 26

Carrying out search powers with or without warrants

Police actions authorised by search powers. S110

Answer 26

Every search power (with or without a warrant) authorises you to:

• enter and search
• request assistance
• use reasonable force in respect of property only
• seize anything subject to the search or anything that may be lawfully seized
• bring and use equipment including using electricity from the place, vehicle or thing
• bring and use a trained law enforcement dog
• copy documents that may lawfully be seized
• access a computer system or other data storage device if any material subject to the search may be located there
• copy intangible material that may be lawfully seized
• take photographs, sound and video recordings, and drawings where there are reasonable grounds to believe it may be relevant to the search.

The search powers listed above are subject to:
* any conditions imposed by an issuing officer when issuing a search
warrant
* the privilege and confidentiality provisions in the Act.
(s115)
They are also subject to the requirements of “reasonableness” under s21 New
Zealand Bill of Rights Act 1990.

Question 27

Using assistants during searches. S113

Answer 27

If you call on a person to assist you to exercise a search power, or a person has been required to assist you as a condition of a warrant, they are subject to your control and the overall responsibility for exercising the power rests with you.

You must, (unless they are another constable):
* accompany them when they first enter the place, vehicle, or other thing to be searched, and
* provide reasonable supervision of them.

Question 28

Powers of persons called to assist. S113

Answer 28

Any person called to assist you to exercise a search power may enter the place, vehicle or other thing to be searched, but can only exercise this and other powers listed above under powers incidental to search as directed by you. For example, an assistant can only search places you determine are lawful to search, take photographs, or bring in and use equipment or electricity that you determine may lawfully be taken or used.

Other constables assisting you with searches may exercise any power ordinarily exercisable by them, without direction or supervision from you.

Question 29

Special powers when an application for search warrant is
pending

Power to secure scene. s 117

You may only exercise these special powers until the first of the following occurs:

• the expiry of six 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.

Answer 29

If a search warrant application is about to be made in relation to a place, vehicle or thing, or has been made but not yet granted or refused by an issuing officer:

You may…

at any time that is reasonable in the
circumstances:

• enter and secure the place, vehicle, or
  other thing, and
• secure any item(s) found there, and
• direct any person to assist with the
  entry and securing of the place,
  vehicle or other thing, or the securing
  of items in it

If you………

believe that evidential material may be destroyed, concealed, altered, damaged, or removed before a decision is taken to grant or refuse the issue of a search warrant.

Question 30

Powers of detention incidental to searches of places and
vehicles. S118

As soon as you have detained a person under s118, you must take active steps to determine whether there is a connection between them and the search. The detention can only be for the shortest period practicable in the circumstances to determine this.

You cannot simply detain the person for the duration of the search and then consider the matter of connection upon completion. In essence, once people have been excluded and cleared of suspicion, they should be informed that they are free to go about their business.

Answer 30

If you are exercising a search power in relation to a place or vehicle, you (or a person assisting you) may detain any person to determine whether there is a connection between them and the object of the search if the person:

• was there at the start of the search, or
• arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out.
  You may use reasonable force (eg handcuffing) to effect and continue the detention.

The detention:
* may be for any reasonable period but no longer than the duration of the search
* starts when you direct the person to remain and ends when you tell them they are free to go.

Question 31

Powers to search persons at a place or
vehicle. S119

Note: If you seize any item posing a threat to safety, then it must, unless possession constitutes an offence, be returned to the person:
* once your search has been completed, or
* when you are satisfied there is no longer any threat to safety

Answer 31

If you are searching a place or vehicle, you may:
search any person…

If you are searching a place/vehicle you may;

Search any person found at that place/vehicle OR

Who arrives at the place OR

Who stops at, or enters, or tries to enter or gets into the vehicle.

If you have reasonable grounds to believe that evidential material that is the object of that search is on that person OR

You suspect 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 the threat.

Exception: An exception to the above is when the search of the place or vehicle is for drugs. In that case, you can search any person at the scene as a matter of course under ss19 or 21.

Question 32

Powers of search when suspect pursued. s120

Answer 32

If you intend to search a person or vehicle, but that person or vehicle leaves before you are able to start or complete the search;

You may apprehend the person OR

Enter any place to find them

If you have been freshly pursuing the person from the intended search location AND
You have reasonable grounds to believe that relevant evidential material is still on the person or vehicle

Note: You can effect the apprehension or undertake the search only if you are the officer in fresh pursuit, unless you are acting as that officer’s assistant under s113 and under their direct supervision and control.

Question 33

Search warrants to enter and search vehicles. s127

Answer 33

If a search warrant authorises the search and entry of a vehicle, you may enter any place where you have reasonable grounds to believe the vehicle is to locate and search it.

Question 34

Identification and announcement requirements
on entry (s117)

Answer 34

If you exercise a search power, you must before your initial entry:

• announce your intention to enter and search the place, vehicle, or other
  thing under a statutory power
• identify yourself (by name or unique identifier)
• if not in Police uniform produce evidence of your identity.

You must also, either before or on initial entry provide the occupier of the place or the person in charge of the vehicle or other thing:
* a copy of the search warrant, (if it is not possible or practicable to have this in your possession, you may execute:
− a facsimile or a printout of an electronically generated copy of the
warrant, or
− a copy which is endorsed to that effect)
(s131(1))

Or
* for a warrantless search or securing a scene under s117 when a warrant is pending, (if requested by any person affected) state the name of the enactment under which you are searching or propose to search and the reason for the search, unless it is impracticable to do so in the circumstances.
(s117)

Question 35

Exceptions to announcing entry and giving reasons
for the search. s131 (2)

Answer 35

You do not have to announce your entry, identify yourself and give a copy of the warrant or notice of the reasons for a warrantless search if you have reasonable grounds to believe that:

• no person is lawfully present in, or on the place, vehicle, or other thing to
  be searched, or
• compliance with the requirements would:
  − endanger the safety of any person, or
  − prejudice the successful exercise of the entry and search power, or
  − prejudice ongoing investigations.

Question 36

Securing the scene to be searched

Answer 36

If you are carrying out a search, you may, in a manner and for
a duration that is reasonable to carry out the search:

• secure the place, vehicle, or other thing searched (scene), or any area within that scene, or anything found within that scene
• exclude any person from the scene or area, or give them any other reasonable direction, if you have reasonable grounds to believe they will obstruct or hinder you.

If requested by any person affected by the search, you must:
* identify yourself by name or ID
* state the name of the enactment under which the search is taking place and the reason for the search, unless it is impracticable in the circumstances
* if not in Police uniform, produce evidence of your identity. S116

Question 37

Being “in uniform”

Answer 37

Uniform is “distinctive clothing or equipment that is issued by the Commissioner to be worn by Police employees while on duty and having a colour scheme, pattern or style that enables the person wearing it to be readily identifiable as a Police employee.” (s4 Policing Act 2008)

For employees to be “in uniform” they must only be wearing items of clothing or equipment that have been approved by the Commissioner. Employees wearing items of clothing or equipment not approved or items approved only for special conditions are not deemed to be “in uniform” and therefore may not be able to legally exercise their powers. For example, wearing of SRBA as the only uniform item by plain clothed employees conducting searches is not sufficient to meet the criteria for being “in uniform”. They must produce identification when exercising search powers.

Question 38

Use of force against persons and property

Using reasonable force to enter property

Answer 38

When exercising any search power you (and any assistant under your direction) may use any reasonable force in respect of any property to carry out the search and any lawful seizure.
(s110(c) and s113(2)(b))

You may also use reasonable force against any property or person to effect entry where this is justified under s131(3), eg when entry is resisted or refused.

When deciding whether to force entry, you must consider the possibility that such entry may present a danger to:
* the Police party
* the occupants of the premises, including children or other vulnerable people present
* members of the public.

Question 39

Announced forced entry

Answer 39

Before forcing an entry, give the people on the premises the opportunity to admit you. Announce your presence (eg by knocking on the door), identify yourself to the occupants and state why you are there and by what authority. If admission is denied or unreasonably delayed and it is safe to do so, you can make a forced entry.

Question 40

Unannounced forced entry

Answer 40

In some situations, announcing the Police presence or purpose may be impracticable and a sudden, unannounced entry, by force if necessary, may be justified. Examples include:
* saving a person on the premises from death or injury
* situations where giving a warning might endanger the police involved
* preventing the destruction of evidence
* entering in the course of ‘hot pursuit’ of an offender.
(s131(2))

Before making an unannounced forced entry, assess the risk and consider:
* the tactical options available
* reasonable and practical alternatives to a forced entry
* the seriousness of the offence or circumstances
* any history of violence on the part of any person present on the premises
* danger to Police, the public or people present at the premises
* whether there are reasonable grounds for believing that evidence will be destroyed or disposed of.

Question 41

Entry with firearms

Answer 41

If any employee is armed during a forced entry, other than during an AOS operation, the requirements detailed in the “Police firearms” chapter of the Police Manual must be met.

Question 42

Ensuring the safety of Police and others

Answer 42

When making any forced entry, every effort must be made to ensure Police safety. A uniformed employee should, where practicable, stand at the entry point to ensure occupants or the public realise that it is Police entering the premises.

When an unobtrusive approach is required by employees in plain clothes (including AOS members), they must be issued with and wear a distinctive “Police” jerkin. This may be concealed or not worn until immediately prior to entry.

You must also consider the safety of the public and others present on the premises.

Question 43

What can be searched and seized?

What can you search?

Answer 43

You can only search for items specified in a search warrant or which are permitted under a warrantless power, and only in places that could contain them. For example, you could not search a drawer for a large television set - although you could for documents relating to it.

A vehicle can be searched if it is on the premises, but a vehicle parked on the street must be specified in the warrant.

Question 44

Searching people at the scene

Answer 44

If you are searching a place or vehicle, you may search any person found there, or who arrives at the place or stops at, enters or tries to enter the vehicle, if you have reasonable grounds to believe:

• evidential material that is the object of the search, is on the person, or
• the person is in possession of a dangerous item that poses a threat to safety, and that immediate action is necessary to address that threat.

You can seize any such evidential material or dangerous item from the person.
(s119)
Note: In the case of searches for drugs, you may search any person at the scene as a matter of course under sections19 or 21.

Question 45

What can you seize during the search?

Answer 45

Every search power authorises you to seize anything that is the subject of the search or that may lawfully be seized.
(s110(d))

If you find evidence of an offence other than the one specified in the warrant or covered by your warrantless power, you cannot seize it unless:
* you obtain another warrant, or
* you exercise plain view seizure under s123.

Question 46

Items of uncertain status

Answer 46

If you are not certain if something can lawfully be seized and it is not reasonably practicable to determine that where the search takes place, you may remove the item for examination or analysis to determine whether it may be lawfully seized.
(s112)

This removal power is limited to when you are exercising a search power to find an item but are not sure if the item found is the actual item you are searching for and therefore whether it may lawfully be seized. For example, if you are exercising a search power to locate cocaine and find a package containing white powder, you may remove the package under s112 for the purpose of examination or analysis to determine whether or not the powder is cocaine and can then lawfully be seized.

The s112 removal power could not be used, if for example, the purpose of your search is to find cannabis, but you find a television and are uncertain whether it is stolen or not. You would need to consider whether the circumstances are appropriate to exercise a plain view seizure under s123 or to secure the place, vehicle or other thing being searched while an application for a search warrant is pending under s117. (See “Special powers when search warrants are pending”).

Question 47

Seizure of items in plain view. s123

Answer 47

If you are exercising a search power or are lawfully in a place as part of your duties, you may seize any item(s) you find in the course of carrying out the search or as a result of observations at that place, if you have reasonable grounds to believe you could have seized the item(s) under
* any search warrant obtained under the Search and Surveillance Act or another enactment, or
* any other search power exercisable by you under the Search and Surveillance Act or another enactment.
If you seize an item(s) in circumstances where you are not already exercising a search power, you may exercise any applicable power conferred by s110 in relation to the seizure of the items.

Question 48

Seizing privileged materials

Answer 48

Special rules apply in relation to the search and seizure of privileged or confidential materials held by lawyers, ministers of religion, medical practitioners, or clinical psychologists relating to clients or journalists relating to their sources.

Question 49

Notice and inventory requirements after search or seizure

Form of written notice when exercising a search power

Searches conducted when occupier or person in charge of vehicle or thing is lawfully present:

Answer 49

The form of notice given before or after a search and seizure varies depending on whether the search was conducted with or without a warrant and whether or not the occupier or person in charge of the vehicle was present during the search.

searches conducted when occupier or person in charge of vehicle or thing is lawfully present:

give that person before or on initial entry:
* copy of the warrant and attached privilege information contained in the ‘Notice to occupier, or the person in charge of vehicle or other thing present during search’, or
* if a warrantless search, a copy of the ‘Notice to person present during warrantless search’ (POL1275).

Note: The exception to this requirement is when you have reasonable grounds to believe an unannounced forced entry is justified in the following circumstances:
* a person is not lawfully present (eg a burglar), or
* compliance would:
− endanger the safety of any person
− prejudice the successful exercise of the entry and search power, or
− prejudice ongoing investigations. (s131(1))

Question 50

searches conducted when occupier or person in charge of vehicle or thing is not present

Answer 50

searches conducted when occupier or person in charge of vehicle or thing is not present
on completion of the search, leave in a prominent position at the place, or in or on the vehicle or other thing:
* a copy of the warrant and attached privilege information contained in the ‘Notice to occupier, or the person in charge of vehicle or other thing not present during search’, or
* if a warrantless search, a copy of the ‘Notice to person not present during warrantless search’ (POL1275).

Question 51

searches resulting in things seized

For a warrantless search notification use the POL 1275 – Warrantless Search Notice (Paper-Based Form) found in Police Forms (I-Z) > Search and Surveillance.

Answer 51

at the time the thing is seized, or as soon as practicable after the seizure and no later than 7 days after that seizure, provide:
* to the occupier of the place, or the person in charge of the vehicle or other thing, and
* to every other person you have reason to believe is the owner of the thing seized
the following:
* an inventory of items seized (POL 268) and the accompanying ‘Notice to owners and others in relation to things seized, and
* a copy of the authority (ie a copy of the warrant, POL1275) if the owner is different from the occupier or person in charge and has not previously received the relevant form

Question 52

Limits on who can be treated as occupiers or people in charge

Answer 52

No person:
* under 14 years of age (unless found driving a vehicle with no passenger of or over the age of 14 years with authority to consent to the vehicle’s search), or
* who you have reasonable grounds to believe is not the occupier of the place or person in charge of the vehicle or other thing can be treated as the occupier of the place or the person in charge of a vehicle or other thing for the purposes of section 131 and sections 133 to 135.
(s131(6))

Question 53

Duty to give notice to owners of things that are seized

Answer 53

In addition to providing the occupier of a place or the person in charge of the vehicle or other thing notice of what is seized, section 133(1) requires you to provide to any person you have reason to believe is the owner of the thing seized:
* written notice specifying what was seized and information about the person’s right to have access to the thing or claim privilege in respect of the thing seized, and
* a copy of the authority for the search (i.e. the search warrant or for warrantless searches, the name of the enactment under which the search took place.

Question 54

Duty to give notice to owners of things that are seized continued

Answer 54

The section also provides that this information must be provided as soon as practicable after the seizure and, in any case, within 7 days.

You must take care when providing this information to owners following seizure. Search warrants or advice of the exercise of a warrantless power and inventory of items seized recorded in the Police Register of Property (PROP) system, produces a receipt from the PROP Desktop of those seized items. All documents contain details of the location from where the items were seized and except for notices following warrantless searches, the identity of the person from whom they were seized. The PROP Desktop receipt may also contain details of property belonging to a number of owners. Providing this personal information to the owner(s) of stolen property which is recovered, may pose a threat to the safety of the person from whom it was seized, eg the owner of a stolen item may be a gang member wanting retribution.

There are two courses of action available to you if you have concerns about the disclosure of identity information when complying with s133:

Option 1

Delete or mark out the identity and location on the PROP Desktop receipt copy and the location of the search on the search warrant copy or the warrantless search power notice copy before providing to the owner.
Seek advice from Legal Services if the owner disputes the deletions from the documents.

Option 2

Apply to a Judge for postponement of notice and inventory requirements under s134.
This option has limitations in that the application must be made within 7 days after the warrant is finally executed or the warrantless search power is exercised

Question 55

Road blocks and stopping vehicles for search purposes

Answer 55

This chapter outlines powers under the Search and Surveillance Act 2012 to stop and move vehicles and to establish road blocks for the purpose of search and/or to effect arrest.

Powers to stop and move vehicles or to close roads under the Land Transport Act 1998 or under other legislation for emergency purposes (eg in a civil defence emergency) must not be used for the purpose of search.

Definition
Curtilage means an area attached to a dwelling house and forming one enclosure with it. In an urban area it would include the area within a dwelling’s fenced boundary.

Question 56

Stopping and moving vehicles to search

Stopping vehicles with or without warrant to search - s121

Answer 56

You may stop a vehicle to conduct a search:

under a power to search…

without a warrant, if you are satisfied that….
grounds exist to search the vehicle

with a warrant if you are satisfied that
the warrant has been issued and is in force.
(s121)

Moving vehicle for purpose of search or safekeeping
You may move a vehicle to another place:
if…
you find or stop the vehicle

and you have…
* lawful authority to search the vehicle, but it is impracticable to do so at that place, or
* reasonable grounds to believe it is necessary to move the vehicle for safekeeping.
(122)

Question 57

Duty to remain stopped s128

Answer 57

You may require the vehicle to remain stopped for as long as is reasonably necessary for the exercise of any powers in respect of:
* the vehicle, or
* the occupants of the vehicle.
(s128)

Question 58

Duty to provide information to vehicle’s driver - s129

Answer 58

Immediately after stopping the vehicle, you must:
* identify yourself to the driver
* state the name of the enactment under which the search is taking place and the reason for the search, unless it is impracticable in the circumstances
* if not in Police uniform, produce evidence of your identity.
(s129)

Question 59

Stopping vehicles without warrant to effect arrest - s9

Answer 59

You may stop a vehicle without warrant to arrest a person if you have reasonable grounds:
* to suspect that a person:
− is unlawfully at large, or
− has committed an offence punishable by imprisonment, and
* to believe the person is in or on the vehicle.
(s9)
Note: “Unlawfully at large” includes:
* a person for whose arrest a warrant is in force, except when it is a fines warrant issued under Part 3 of the Summary Proceedings Act 1957
* anyone who has escaped from lawful custody
* a special or restricted mental health patient who is absent without leave.

Question 60

Powers and duties after vehicle stopped

Answer 60

If you stop a vehicle under section 9 you may:
* require any person in or on the vehicle who you have reasonable grounds to suspect is unlawfully at large or has committed an offence punishable by imprisonment to supply their name, address, other contact details and date of birth
* search the vehicle to locate the person, if you have reasonable grounds to believe they are in or on the vehicle
* search the vehicle to locate property that is evidential material in relation to any offence in respect of which the vehicle was stopped, if the person:
− has been arrested, or
− is seen fleeing from the vehicle before they can be arrested.

Before searching, you must tell the driver the object of the proposed search if they are not the person suspected of being unlawfully at large or of committing an offence.

Question 61

Procedures for stopping vehicles

Answer 61

Follow the procedures for stopping vehicles in the Traffic patrol techniques Police Manual chapter.
Note in particular that Police policy requires 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 62

Establishing a road block for purpose of arrest

Obtaining authorisation for a warrantless road block

Answer 62

If you are a senior constable (holding or acting in a position level of sergeant or above) you may authorise the establishment of a road block (orally or in writing) if you have reasonable grounds to:
* believe that in or on a vehicle there is a person who you have reasonable grounds to suspect:
− has committed an offence punishable by a term of imprisonment or
− is unlawfully at large, and
* suspect the vehicle will travel past the place where it is proposed the road block be established.
You must be satisfied that, as far as is reasonably practicable, the safety of all road users will be ensured in the area where the road block will be established.
(s30)
Note: In this section, senior constable means a constable who holds a level of position of sergeant or higher,and includes any constable who is acting in any such rank (subsection 4 of s30).

Question 63

Duration and record of warrantless road block authorisation

Answer 63

An authorisation to establish a road block:

• is valid for an initial period not exceeding 24 hours specified by the person giving the authorisation, and
• may be renewed from time to time by a district court judge for a single further period not exceeding 24 hours specified in writing by the judge.
  If you authorise a road block, you must keep a written record of:
• the location
• the period(s) for and grounds on which authorisation was granted or renewed.
  (s31)

Question 64

Powers under authorised road blocks implemented without warrant

Answer 64

Any constable may do any or all of these things when a road block is authorised.

Establish road block - Establish a road block at the place specified in the authorisation.

Stop vehicles - Stop vehicles at or in the vicinity of the road block.

Require particulars - Require any person in or on any vehicle stopped by the road block who you have reasonable grounds to suspect has committed an offence punishable by imprisonment to state their name, address, and date of birth.

Search vehicle - Search the vehicle for the purpose of locating a person who has committed an offence (punishable by imprisonment) or is unlawfully at large (excluding non-payment of fines warrant), if you or any other constable has reasonable grounds to believe the person is in or on the vehicle.
(s32)

You may also require that a vehicle remain stopped for as long as is reasonably necessary to enable you to exercise any of the powers above in respect of the vehicle or its occupants.
(s128)

Question 65

Power of arrest

Answer 65

You may arrest the person if they fail to stop when required or to comply with a requirement under section 128 to remain stopped.
(s177)

Question 66

Reasons to search persons

Answer 66

Searching people may be necessary to:
* locate and preserve evidence
* remove weapons or means of escape
* remove and care for a detainee’s property
* locate and remove articles or substances that could impact on the safety of that prisoner or that of other prisoners, members of the public or Police employees
* ensure the safety of a prisoner considered to be at risk of attempting suicide or self-harm.

Question 67

Types of personal searches

Answer 67

There are three main types of personal searches which have increasing levels of justification and requirements:
* rub-down searches
* strip searches
* internal searches.

Question 68

General principles applying to all searches

Answer 68

These general principles apply to all searches:

• The search must be lawful, ie you must be authorised by the Search and Surveillance Act 2012 or another enactment to conduct a search, or conduct it with the person’s informed consent.
• People being searched must be treated with such dignity, privacy, respect and sensitivity that the individual situation and the safety of employees dealing with them will permit.
• Any force or restraint used on a person being searched must always be reasonable in the circumstances.
• Generally searches should be carried out by constables, authorised officers or searchers of the same sex as the person being searched. Some exceptions apply when employees of the same sex as the person being searched are not available
• Where practicable, any search and/or removal of property from the person being searched must be witnessed by another Police employee.
• All property removed or seized from a person searched must be appropriately documented and accounted for.

Question 69

Powers for searching people

When can people be searched?

Answer 69

Police can search people when they are authorised by legislation to do so.

You must search a person lawfully by always:
* exercising a warrantless power, or
* executing a warrant power, or
* conducting a search with the person’s consent.
Note: When a statutory power exists to search a person, you should use that power rather than relying on a consensual search, as consent may be withdrawn by the person at any time.
When making a decision to search, you must consider your tactical options and work within the principles of TENR (Threat, Exposure, Necessity, Response).

Question 70

Warrantless search powers

Answer 70

The statutory powers to search people are contained in the Search and Surveillance Act 2012 and are outlined in this chapter. They include warrantless powers to search a person:

• in custody and who is or is about to be locked up (s11)
• found in a public place for evidential material (s16)
• for arms (s18)
• in relation to drug offences (ss21, 22, 23)
• for offensive weapons (s27)
• after arrest or detention (ss85, 88).

Question 71

Searching items under a person’s control

Answer 71

Searching people can include searching anything:
* they are wearing or carrying, or
* that is in their physical possession or immediate control - this could include a place or vehicle.

Question 72

Searches of arrested or detained people

Which power should be used for searching arrested or detained persons

Answer 72

There are two alternative search powers that might be appropriately exercised immediately upon arrest or when detained under a statutory power of detention. These are:

• a rubdown search, under ss85-87, and
• a warrantless search under s88.
  A search may be carried out under one of these provisions before the search conducted under s11 when people are locked up.

Any search undertaken pursuant to s11(1) & (2), should only be completed by custodial or watchhouse employees before the person is placed into a cell, unless the circumstances are such that an urgent search under s11 is required. The primary purpose of the s11 search is not to look for or seize evidential material but to protect the detained person’s property and remove items that might be used to harm themselves or others.

Question 73

Searching people who are, or are to be, locked up in Police custody (s11)

Answer 73

You may search a person who has been taken into lawful custody and is:

• at a Police station, or
• in other premises, or in, or about to be placed in a vehicle being used for Police purposes, and
• is, or is to be, locked up (pending a decision on bail or for any other reason).
  You may take any money or other property found during the search.
  (s11(4))
  This power may be exercised before the person is locked up.
  (s11(2))

Question 74

What does “locked up” mean?

Answer 74

“Locked up” means a person taken into lawful custody and being placed behind a closed or locked door that prevents them from leaving. Examples are a cell or charge room at a Police station or a vehicle used for Police purposes (other than being placed in a Police vehicle only for the immediate purposes of transport).

Question 75

Searching people after they are locked up

Answer 75

After a person has been locked up they can only be searched if:
* they were not searched before being locked up, or
* since being searched before being locked up, they have been in, or are reasonably suspected of having been in, close proximity to:
− a person who was not locked up in Police custody (other than an enforcement officer or a searcher), or
− another person who was eligible to be searched after being locked up but was not, or
* there are reasonable grounds to believe the person is in possession of anything that may be used to harm themselves or others.
(s11(3))

Question 76

Timing of searches under s11

Answer 76

Apart from an immediate rub-down search of an arrested or detained person under s85 (see below), or a warrantless search under section 88, avoid searching people under s11 immediately after their arrest. If you do so, a further search under s11 cannot be conducted after the person arrives at the police station unless one of the situations in s11(3) exists (see above).
If it is necessary to search a person in transit to remove valuable items to prevent the property from being stolen or to prevent an assault, then you should remove all property from the person.

Question 77

Subsequent searches when prisoners are moved to another station

Answer 77

If a prisoner undergoes a s11 custodial search and is locked up, a further section 11 search can only be conducted if the exceptions in s11(3) apply.

If a prisoner has undergone a s11 custodial search at one station and is later transported to another station (having previously been “locked up”), a further s11 search can only be conducted if the exceptions in s11(3) apply. If you are certain that another search is required, you should undertake that search under sections 85 or 88 (eg to ensure the prisoner is not carrying anything that may be used harm any person, or facilitate their escape). The rationale for using the s85 or s88 search power is the power of detention that is being exercised at the destination station.

If not practicable to conduct the search under s85 or s88 you may consider a second search under s11 on the grounds that while the prisoner in transit they are no longer considered to be “locked up” until they reach the next place of detention where they are to be again “locked up”. However, be aware that this rationale has not been tested in court and there is therefore a risk of the search being found to be unlawful.
Any search must be reasonable in the circumstances

Question 78

Rub-down searches of arrested or detained people

Answer 78

You may carry out a rub-down search of a person who is arrested or detained under any enactment, to ensure the person is not carrying anything that may be used to:

• harm any person (including themselves), or
• facilitate the person’s escape.
  (s85)
  This power may be used on every person who is arrested or detained

Question 79

Warrantless searches for evidential material

Answer 79

If you have arrested, or detained a person under a statutory power of detention you may search the person if you have reasonable grounds to believe that there is anything on or carried by the person that:

• may be used to harm any person (including themselves), or
• may be used to facilitate the person’s escape, or
• is evidential material relating to the offence for which the arrest was made or the person detained.
  (s88)

Note: The grounds authorising a search under this section will not apply to every person who is arrested or detained. Rub-down or strip searches may be used under s88 depending on the circumstances.

Question 80

Seizing samples as evidential material from a person’s external body under s88

Answer 80

The definition of evidential material is broad and under section 3, means evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.

Only where there are reasonable grounds to believe that evidential material is on a person’s body does s88(2)(c) authorise a search and seizure of evidence from the external body of an arrested or detained person.

The reasonableness of a search depends on its circumstances, assessed against an individual’s reasonable expectation of privacy from State intrusion in a law enforcement context as protected by s21 New Zealand Bill of Rights Act 1990 (unreasonable search and seizure). The scope of the power to seize samples is therefore uncertain.

The more intrusive the search, the higher standard of justification that police will be required to meet. For example, a penile swab may link the arrested person to the victim by DNA. However, where the person does not consent, the use of force could render the search and seizure unreasonable, not because of the unreasonable manner in which it was carried out but because it occurred at all. This has yet to be tested in court.

The power to seize a sample as evidential material from the external body of the person under s88 is independent of the powers to take samples under the Criminal Investigations (Bodily Samples) Act 1995. Nevertheless, evidence should not be seized under s88 for the purpose of obtaining a suspect’s DNA profile.

Question 81

Examples of when samples from a person’s external body may be seized

Answer 81

Examples where samples may be seized from the external body of an arrested or detained person as evidential material include:

• a swab to remove blood from the victim of an assault on the arrested person’s neck
• fingernail scrapings from the fingers of an arrested rape offender that may link the offender to the victim by DNA
• a swab of an arrested person’s skin for gunshot residue
• penile swabs (see the online Police Manual chapter for more detail).

Question 82

Searches must be lawful, reasonable and approved

Answer 82

Searches under s88 for the purpose of seizing samples as evidential material from the external body of an arrested or detained person must be lawful, reasonable and approved by a constable who is of or above the level position of sergeant.

Note: The Court of Appeal, in R v Williams [2007] 3 NZLR 207, (2007) 23 CRNZ 1 (CA), confirmed that the concepts of lawfulness and unreasonableness were distinct. Searches that are lawful may nevertheless be unreasonable taking into account the manner, time and place of the search.

Question 83

Approval for arms-related searches

Answer 83

Unless impracticable in the circumstances, obtain approval from a sergeant or above before exercising any of the warrantless powers outlined above in relation to arms.

Question 84

Warrantless searches of people for offensive weapons

Answer 84

You may search a person without a warrant if you have reasonable grounds to suspect the person is committing an offence against s202A(4)(a) Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances).
(s27)

Question 85

Rules and obligations when searching people

Exercising power to search a person - (s125(1)&(4))

Answer 85

When exercising a power to search a person you must:

• identify yourself
• state the name of the Act under which the search is taking place and the reasons for it unless it is impracticable to do so in the circumstances
• produce evidence of your identity if you are not in Police uniform
• promptly provide the person with a copy of an inventory of any items seized during the search.
  (s125(1)&(4))

Question 86

Other general powers associated with the power to search people

Answer 86

When exercising a power to search a person, you may:

Detain - the person for as long as necessary to enable the search to be carried out

Use reasonable force - for the purposes of the search
(You should first arrest for obstruction and then use force to complete the search)

Use any equipment or aids, eg torch - to facilitate the search (while conducting it), if it is used in a way that:
* involves no or minimal contact, and
* is reasonable in the circumstances

Ask for assistance from
* a medical practitioner or nurse, and /or
* a parent, guardian, or other person responsible for the day-to-day care of the person to be searched
If you think it is in the interests of the person to be searched

Ask for assistance from - Another officer (from any law enforcement agency) who is also authorised to conduct a strip search and is of the same sex as the person being searched, if you are undertaking a strip search

Search - any item:
* the person is wearing or carrying, or
* is in their physical possession or immediate control

Seize anything carried by the person or in their immediate possession or control if:
* it is the subject of your search, or
* may otherwise lawfully be seized

Copy - all or part of a document carried by the person being searched or in their physical possession or immediate control if that document is the subject of your search or may otherwise be lawfully seized

Question 87

Other general powers associated with the power to search people continued - (s125(1))

Answer 87

When exercising a power to search a person, you may:

Access using reasonable measures - a computer system or other data storage device carried by the person being searched or that is in their physical possession or immediate control, if any intangible material that is the subject of your search may be in that computer system or other device

Copy intangible material - accessed as above that is the subject of your search or may otherwise be lawfully seized, (including by means of previewing, cloning, or other forensic methods before or after removal for examination

Take photographs - or make sound or video recordings, or drawings of any thing being carried or in the physical possession or immediate control of the person being searched if you have reasonable grounds to believe that the photographs or sound or video recordings or drawings may be relevant to the purposes of the search
(s125(1))

Question 88

Complying with the New Zealand Bill of Rights Act 1990

Answer 88

Searches must be reasonable under s21 New Zealand Bill of Rights Act 1990. If the search complies with s125 Search and Surveillance Act 2012, it is likely to be reasonable under s21 New Zealand Bill of Rights Act. However, there is still an overriding requirement of reasonableness such that if the search is carried out in a manner unreasonable in the circumstances, it may breach s21 even if authorised by the provisions of the Search and Surveillance Act 2012.

Question 89

Rub-down searches
What is a rub-down search?
- (s85(2))

Answer 89

A rub-down search is a search of a clothed person in which you may:

• run or pat your hand over the body of the person being searched, whether outside or inside their clothing (other than the underclothing)
• insert your hand inside any pocket or pouch in their clothing (other than the underclothing)
• for the purpose of permitting a visual inspection, require the person being searched to:
  − open their mouth
  − display the palms of their hands or the soles of their feet
  − lift or rub their hair.
  (s85(2))

Question 90

Rub-down search may include visual examination

Answer 90

A rubdown search may include 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 include the insertion of any instrument, device, or thing into any of those orifices.
(s87)

Question 91

Things that can be done to facilitate a rub-down search

Answer 91

To facilitate a rub-down search you may require the person being searched to:

• remove, raise, lower, or open any outer clothing (including, without limitation, any coat, jacket, jumper, or cardigan) being worn by them, except when they have no other clothing, or only underclothing, under that outer clothing, and
• remove any head covering, gloves, or footwear (including socks or stockings) being worn.
  You may also search:
• any item carried by or in their possession, and
• any outer clothing removed, raised, lowered, or opened for the purposes of the search, and
• any head covering, gloves, or footwear (including socks or stockings) removed for the purposes of the search.
  (s86)

Question 92

Rub-down searches of arrested or detained persons

-(s85(1))

Answer 92

You may carry out a rub-down search when a person is arrested or detained under a statutory power of detention, to ensure that they are not carrying anything that may be used to:
* harm any person, or
* facilitate the person’s escape.
(s85(1))

Question 93

Property removed or seized during a search

Answer 93

If you search a person under any provision in the Search and Surveillance Act 2012 or any other enactment, and remove or seize any property from them, you must promptly prepare an inventory of what was removed or seized and provide the person with a copy.
(s125(4))

When people are in custody, follow the procedures for receiving and recording detainees’ property in the People in Police Custody chapter. Note: If you take property and retain it as an exhibit for further investigation, you must record in in PROP or IMT.

Question 94

Law note

Answer 94

McRae v Police (2017) NZHC 2255 – Inquiring as to a reasonable excuse for possessing an offensive weapon before conducting a search

Finding

A car’s lack of roadworthiness had given police a legitimate interest to investigate and a machete was sighted in the vehicle in relatively plain view. The Court suggested that prior to conducting a search of the vehicle, the officer could have asked the driver why he had the machete in his vehicle. Although in this case that question was not asked, the Court was satisfied that there would be few circumstances where it is acceptable to possess a machete and found the search of the car to be lawful and the evidence admissible.