Surveillance

Question 1

Rights to Privacy…..

Answer 1

Individual rights to privacy underpin the surveillance regulations in the
Search and Surveillance Act 2012.

Everyone has the right to privacy in their own home, the right to refuse entry
to others and the right to

Question 2

Section 45

Answer 2

Restrictions on some trespass surveillance and use of interception device.

Obtaining evidential material in relation to an offence:
* punishable by a term of imprisonment of 7 years or more, or
* against section 44, 45, 50, 51, 54, or 55 of the Arms Act 1983.

• Undertake – trespass surveillance.
• Use – an interception device.

Question 3

Section 46

Answer 3

Activities for which surveillance device warrant required.

Unless permitted under s 47 (which specifies some activities that do not require a warrant) or authorised by s 48 (which provides for the use of a surveillance device in situations of urgency or emergency), a warrant is required before a police officer or other enforcement officer uses a surveillance device for the purpose of:
(a) intercepting private communications;
(b) tracking (unless the purpose is only to determine whether a thing is being handled and the installation of the device does not involve a trespass on land or trespass to goods);
(c) visual observation of private activity on private premises, and any recording of that observation;
(d) visual observation of private activity in the curtilage of private premises for longer than the time specified in para (e)(i) or (ii), and any recording of that observation;
(e) visual surveillance that involves a trespass to land or goods.

Question 4

Section 48

Answer 4

Surveillance device warrant need not be obtained for use of surveillance device in some.

(1) An enforcement officer who is in any 1 or more of the situations set out in subsection (2) may use a surveillance device for a period not exceeding 48 hours from the time the surveillance device is first used without obtaining a surveillance device warrant, if— (a) he or she is entitled to apply for a surveillance device warrant in relation to those situations; but (b) obtaining a surveillance device warrant within the time in which it is proposed to undertake the surveillance is impracticable in the circumstances. (2) The situations are as follows: (a) the enforcement officer has reasonable grounds— (i) to suspect that an offence punishable by a term of imprisonment of 14 years or more has been, is being, or is about to be committed; and (ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence: (b) the enforcement officer has reasonable grounds— (i) to suspect that any 1 or more of the circumstances set out in section 14(2) exist; and (ii) to believe that use of the surveillance device is necessary to prevent the offending from being committed or continuing, or to avert the emergency: (c) the enforcement officer has reasonable grounds— (i) to suspect that any 1 or more of the circumstances set out in section 18(2) exist; and (ii) to believe that use of the surveillance device is necessary to facilitate the seizure of the arms: (d) the enforcement officer has reasonable grounds—
(i) to suspect that a category 3 or 4 offence in relation to arms or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; and (ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence: (e) the enforcement officer has reasonable grounds— (i) to suspect that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, or to a precursor substance specified or described in Part 3 of Schedule 4 of that Act; and (ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence: (f) the enforcement officer has reasonable grounds— (i) to believe that a person is in possession of any 1 or more of the things described in section 81(2)(a) to (d); and (ii) to believe that use of the surveillance device is necessary to facilitate the thing’s seizure. (3) An enforcement officer using, or intending to use, a surveillance device in accordance with subsection (1) may do any or all of the following, using any force that is reasonable in the circumstances to do so, in order to install, maintain, or remove the surveillance device, or to access and use electricity to power the surveillance device: (a) enter any premises, area, or vehicle: (b) break open or interfere with any vehicle or other thing: (c) temporarily remove any vehicle or other thing from any place where it is found and return it to that place. (4) This section is subject to section 45.

Question 4

Section 47

Answer 4

Some activities that do not require warrant under this subpart.

(1) No warrant under this subpart is required by an enforcement officer for any 1 or more of the following activities: (a) the enforcement officer— (i) being lawfully in private premises; and (ii) recording what he or she observes or hears there (provided that the enforcement officer records only those matters that he or she could see or hear without the use of a surveillance device): (b) covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them: (c) activities carried out under the authority of an interception warrant issued under— (i) section 4A(1) or (2) of the New Zealand Security Intelligence Service Act 1969; or (ii) section 17 of the Government Communications Security Bureau Act 2003: (d) activities carried out by the enforcement officer’s use of a surveillance device, if that use is authorised under any enactment other than this Act. (2) Subsection (1)(b) does not prevent an enforcement officer from applying for a warrant authorising covert audio recording in the circumstances set out in that subsection.

Question 5

What is Surveillance?

Answer 5

Police surveillance is planned and directed activity. Either open or covert, for the purpose of:

• OBSERVING, and any recording of that observation, of people, vehicles,
  places and things
• ASCERTAINING (TRACKING) the location of a thing or person, or whether a
  thing has been interfered or tampered with
• INTERCEPTING a private communication

Question 6

What is surveillance continued……

Answer 6

Clear boundaries are established for
the lawful use of a surveillance device:

• where trespass is not involved
• where trespass is involved
• where warrantless powers exist

Question 7

Surveillance risk assessment

Answer 7

Any surveillance work (with or without warrant) is inherently risky.
These risks must be:

• identified
• assessed
• considered in planning before surveillance is executed

Apply TENR to assess:
* threat
* exposure
* necessity
* response

Question 8

What is a surveillance device?

Answer 8

A surveillance device is a device which assists and enhances your normal
capabilities to carry out the surveillance.

A surveillance device may be any one or more of the following kinds of
device:
* a visual surveillance device
* an interception device
* a tracking device

Question 9

What is a visual surveillance device?

Answer 9

Visual surveillance device –
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used
to observe, or to observe and record, a private activity, but
(b) does not include spectacles, contact lenses, or a similar device used to
correct subnormal vision of the user to no better than normal vision.

Question 10

Private land and goods

Answer 10

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

Those places include land (in private ownership) and any private premises on
that land, and ‘goods’.

Goods generally mean chattels and include vehicles and other tangible
belongings.

Question 11

Private premise

Answer 11

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

Question 12

Non-Private premise

Answer 12

Non-private premises means premises, or part of a premises, to which
members of the public are frequently permitted to have access, and includes
any part of a hospital, bus station, railway station, airport or shop.
Note: Not all parts of hospitals, bus stations etc are non-private premises.
Areas that would be considered as private are:
* hospitals – theatres, consulting rooms
* railway station – office area , staff meal room

Question 13

Private activity

Answer 13

The definition of private activity acknowledges fundamental human rights.

A participant in an activity can reasonably expect the activity is private, if it is
carried out in private premises.

But – ‘ought reasonably to expect’ must be an objective test i.e. what any
person would expect.
Where private activities occur is of key importance.
Consider – would you expect your participation in the following activities to
be private?
* sleeping in a hotel room
* planting in your back garden
* trying on clothes in a changing room
Be aware – private activities may occur in places that do not fit the definition
of private premises.

Question 14

Trespass and trespass surveillance

Answer 14

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

For surveillance purposes, if you do not have consent to enter onto private
property, then you are trespassing.

Restrictions on use of surveillance devices
Any warrant application to use a visual surveillance device for trespass
surveillance will only be authorised for obtaining evidential material for
serious offences.

Any warrant application to use an interception device, whether or not a
trespass surveillance occurs, is restricted to obtaining evidential material for
serious offences only.
(A serious offence is an offence punishable by 7 years imprisonment or
more).

Section 46 – Activities for which surveillance device warrant required
(d) Use of a surveillance device that involves trespass onto private property

Question 15

What is curtilage??

Answer 15

Curtilage –
Means the land immediately surrounding a house or dwelling, including any
closely associated buildings and structures, but excluding any associated
‘open fields beyond’.
It defines the boundary within which a home owner can have a reasonable
expectation of privacy and where ‘common daily activities’ take place.
Activities that do not require a warrant cover the use of a visual surveillance
device within the curtilage of private property but usage is restricted to time
limitations

Question 16

Curtilage limitations

Answer 16

The legislation sets time limitations on the use of a visual surveillance device
for surveillance activity within the curtilage of private property.
Section 46 – Activities for which surveillance device warrant required
(e ) observation of private activity in the curtilage of private premises, and
any recording of that observation, if any part of the observation or recording
is by means of a visual surveillance device, and the duration of that
observation, for the purposes of a single investigation, or a connected series
of investigations, exceeds –
(i) 3 hours in any total 24-hour period; or
(ii) 8 hours in total

Question 17

Interception Device

Answer 17

Interception device –

(a) means any electronic, mechanical, electromagnetic, optical or electrooptical instrument, apparatus, equipment or other device that is used
or is capable of being used to intercept or record a private
communication; but

(b) does not include a hearing aid or similar device used to correct
subnormal hearing of the user to no better than normal hearing.
Note: A surveillance device warrant is required to use an interception device
to intercept a private communication.

Section 46 – Activities for which surveillance device warrant required
(a) Use of an interception device to intercept private communications

Question 18

Limitations on use of a interception device

Answer 18

The Search and Surveillance Act limits the use of an interception device, to
intercept a private communication, whether or not that communication occurs
in private or non- private premises, to obtaining evidential material for
serious offences only.

A surveillance device warrant will only be authorised for use of an
interception device for gathering evidential material for:
* offences punishable by 7 or more years imprisonment
* identified Arms Act 1983 offences
* identified Psychoactive Substances Act 2013 offences

Question 19

Voluntary Oral Communication

Answer 19

A voluntary oral communication is a communication between one or more
persons where at least one party in the communication gives their consent for
the communication to be recorded (section 47).

There is no requirement to obtain a surveillance device warrant to intercept
and record a voluntary oral communication.

Example:
An offender admits to his role in a drug ring and agrees to allow police to
record his telephone conversation with the ringleader to gather evidential
material.

Example:
A CHIS agrees to wear a device that will record his telephone conversation
with a gang leader who is under investigation for a series of armed robberies.

Question 20

What is a tracking device?

Answer 20

Tracking device –
(a) means a device that, may be used to help ascertain, by electronic or
other means, either or both of the following:
(i) the location of a thing or a person;
(ii) whether a thing has been opened, tampered with, or in some
other way dealt with; but
(b) does not include a vehicle or other means of transport, such as a boat
or helicopter.

A surveillance device warrant may authorise the use of a tracking device to
obtain evidential material for the investigation of any offence punishable by
imprisonment.

Question 21

Tracking device Section 46

Answer 21

Section 46 – Activities for which surveillance device warrant required
(b) Use of a tracking device, except where a tracking device is installed solely
for the purpose of ascertaining whether a thing has been opened, tampered
with, or in some other way dealt with, and the installation of the device does
not involve trespass to land or trespass to goods.

Question 22

Tracking device - Specialist Squad Support

Answer 22

Covert surveillance using sophisticated electronic surveillance devices must
be undertaken only by specialist trained officers.

Specialist trained staff and surveillance squads are established at a number of
main centres and their services are available to districts on request.

Question 23

Situations of emergency or urgency….

Answer 23

A surveillance device warrant need not be obtained for use of surveillance
devices in some situations of emergency or urgency.
Section 48 acknowledges that in certain situations, police may need to act
immediately without warrant to use any 1 or more surveillance devices.

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

“entitled to apply”

You would be entitled to make an application for a surveillance
device warrant as the situation is one of serious criminal activity.

“impracticable in the circumstances”
You need to use a device urgently as it is not immediately
practicable to obtain a surveillance device warrant.

Question 24

Situations of emergency or urgency device guidlines

Answer 24

Surveillance without warrant in situations of emergency or urgency is
permitted only where the above circumstances apply and the suspected
offence has been, is being, or is about to be committed and is:
* punishable by 14 years imprisonment or more and
* you believe that use of the surveillance device would obtain evidential
material in relation to the offence:
* an Arms Act 1983 offence
− or a person by reason of their physical or mental condition (however
caused) is incapable of having proper control of the arms; or may kill
or cause bodily injury to any person;
− or that under the Domestic Violence Act 1995 a protection order or a
police safety order is in force against the person;
− or there are grounds to make an application against him or her for a
protection order.
* a drug offence; or
there is a situation which is:
* likely to cause injury or serious property loss / damage and surveillance is
necessary to prevent offending from being committed or continuing
* presenting risk to life and safety and surveillance is necessary as an
emergency response (section 14)

Question 25

Limitations

Answer 25

However, the warrantless period for the use of a surveillance device in a
situation of emergency or urgency is a period not exceeding 48 hours.

Approval to use an interception device in an emergency situation should be
obtained from a Detective Inspector unless:
* the immediacy of the situation does not allow for prior planning and
approval from a Detective Inspector in consultation with Legal Services;
and
* statutory criteria is met; and
* an opportunity arises to obtain evidential material that would otherwise be
lost if not taken at the time

Question 26

Period the surveillance device warrant is limited to…

Answer 26

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

Question 27

Requirement to report

Answer 27

Section 60 report in the Search and Surveillance system to a
Judge within 1 month after the date of the last day of any period of 48 hours
or less over which the surveillance device was used.