2 MUST LEARNS Flashcards
(25 cards)
Under the S&S Act a LAWFUL search is a search that is conducted
SA
- with a search warrant
- under a warrantless search power
- with the persons consent
Under the S & S Act a REASONABLE search is that
SA
- complies with sec 21 of the NZ BOR act and considers factors such as
- the nature of the search
- how intrusive the search is
- where and when the search takes place
PRACTICABLE IN THE CIRCUMSTANCES
practicable whether applying for a 4x is practicable in the circumstances. When you think about what is practicable consider questions such as
- Can the scene be secured (under sec 117)
- is the evidential material at risk
- location of the search and who may be present
- is there time to gain approval and apply for a search warrant
Record in your decision log
SEARCH OPTIONS
If it is not practicable in the circumstances to apply for a search warrant there maybe 2 other options available to you
- SEARCH USING WARRANTLESS POWER- if a warrantless power is available to you then you have the power to search without a search warrant
- SEARCH BY CONSENT - if you do not have grounds to apply for a search warrant or to use a warrantless power then you may request a search by consent. A consent search is not the most desirable action as there are additional rules that apply to consent searches and these rules must be followed if the search is to be lawful
Why use a search warrant
REP
- ensures judicial oversight
- Provides greater protection for police and public
- requires recording and reporting of results
SEARCH BY CONSENT SEC 91-96 S & S
Before conducting a search by consent you MUST determine that the search is for one of the following reasons
PIPP
- to prevent the commission of an offence
- to investigate whether an offence has been committed
- to protect life or property
- to prevent injury or harm
One or more of these situations MUST exist to justify any consent search (sec 92)
UNDERTAKING A CONSENT SEARCH
Before conducting a search by consent you must advise the person whom consent is sought
MC
- of the reason for the proposed search AND
- they may consent or refuse to consent to the search
EXCEPTIONS TO IDENTIFICATION AND NOTICE
You are not required to comply with identification intention and notice requirements on initial entry if you have RGTB that no one is present also you do not have to comply with the requirements on initial entry if you have RGTB this would PPE
SA
RGTB
- endanger any persons safety
- prejudice the successful use of the entry and search power
- Prejudice on-going investigation
- RGTB no one is present
What do you do if the person refuses entry
SA
may use reasonable force to enter if the person does not allow entry within a reasonable time following a request
What if there is no one at the place where the search is to be conducted
MC
- use reasonable force to enter place vehicle other thing if you have RGTB no one is lawfully present
- MUST leave a copy of the search warrant or a POL 1275 search notice to occupier and an inventory of any material seized
- MUST be ASAP after the search AND
MUST be provided within 7 days of completion of the search
What if your search is impeded
SA
If your search is impeded by any person or if you have RGTB that any person would obstruct or hinder your ability to search then you could use section 116 to:
- exclude that person from the place vehicle or other thing being searched or any area within the place or vehicle or other thing
- give any reasonable direction to that person
Sec 116
SECURE a place vehicle or other thing to be searched and EXCLUDE any person from there
Sec 118
DETAIN PEOPLE when searching places vehicles for the purposes of determining whether there is any connection between a person at the place or in or on the vehicle and the object of the search
Sec 119
- SEARCH PEOPLE found when searching places and vehicles if you have RGTB that evidential material that is object of the search is on that person or
- RGTS person is in possession of a dangerous item poses a threat to safety and you believe immediate action is needed to address the threat
Sec 120 freshly pursuing
if you are FRESHLY PURSUING and with RGTB that relevant evidential material is still on the person you have the power to ENTER any place to APPREHEND the person and SEARCH the person or vehicle
PRIVILEGE PRACTICAL PROCEDURES- There are set procedures when a search involves privileged material held by a specified person
SA
YOU MUST:
- Ensure that the person or the representative is present when the search is undertaken
- Give the person a reasonable time to claim privilege
AND THEN
- Person must provide a list of the things they claim are privileged
- Must complete an inventory list of all documents seized must show person to check for accuracy and must leave them a copy
- Person may make a copy of any document before you seize it and may object to the seizure of any document
If you receive or are expecting to receive a claim of privilege
- Secure the thing subject to privilege but do not continue to search or examine it
- courts will determine if the claim of privilege is valid
Special power section 117-
The powers conferred by section 117 (1) may be exercised until the first of the following occurs
(A) The expiry of six hours from when the power is first exercised
(B) the warrant is available for execution at that place, vehicle or other thing
(C) the application for a search warrant is refused
When will a search warrant be authorised?
An issuing officer may authorise a search warrant for a place, vehicle, thing or facility, if they are satisfied that the search warrant application clearly shows the:
SA
- RGTS an offence punishable by imprisonment has been, will be or is about to be committed
- RGTB the search will find evidential material in respect of the offence in the place, vehicle or other thing.
The issuing officer must be personally satisfied that these two conditions have been made before authorising your application.
Application to postpone compliance with notice obligations
When you execute a search warrant you are obliged to provide a copy of the search warrant and an inventory of any items that are seized to the occupier [section 131]
MC
If providing a copy of the search warrant or inventory would:
- Endanger the safety of any person or
- prejudice ongoing investigations
You may apply to a judge to postpone your obligation to provide a copy of the search warrant
Application to postpone compliance with notice obligations.
An application to postpone is made under section 134 of the act and should be presented to the judge
SA
-at the time of the search warrant application or
– before seven days has passed after the search warrant execution
A judge can also postpone these obligations for a period not exceeding 12 months this would apply to a long-term investigation
Eg applying for a warrant to search gang headquarters for evidential material relating to the manufacture of methamphetamine. If you believe that complying with notice obligations would be dangerous to those involved you can apply to a judge to postpone your application obligations to leave a copy of the search warrant when you were applying for the search warrant or up to seven days after the search warrant was executed
Obligations and additional powers
No one is home at the address to be searched
SA
If you have reasonable grounds to believe no one is it the address to be searched you do not have to comply with the section 131 announcement obligations on entry
Must leave a copy of the search warrant and an inventory of any items seized
It’s not reasonably practicable then this action must be completed within seven days of the search warrant being executed
Items of uncertain status section 112
S&S Act provides powers for dealing with Other items that you may find in the lawful search of a person, place or vehicle or If you are lawfully in any place or vehicle
SA
If you are carrying out a lawful search and it is not reasonably practicable to determine whether any item can be lawfully seized you may:
– Remove items for examination or analysis offsite to determine if you can seize them lawfully
 - any item you want to remove must be within the scope of the original search
Eg
- drugs that require Analysis at a lab
- Large amounts of documents that may contain evidential material and it is not practicable to sort them on site
If you are:
– Exercising a search Power
– carrying out a lawful search of a person – lawfully in a place or vehicle
Items in Plain view section 123
SA
You may seize any item you find in Plain view when you are searching or that you observe if:
– You have RGTB that you could have seized the item under a search warrant or other such power.
Eg You are searching for a person under section 8 and look inside a wardrobe for that person. You find a bag of cannabis. As the bag is in “Plain view” you may seize it under section 123
