Module 4 - Search and Surveillance Act 2012 (Feb 2015)

Question 1

What is the definition of Evidential Material?

Answer 1

in relation to a particular offence, means evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence.

Question 2

What is the definition of reasonable grounds to believe?

Answer 2

means having a sound basis for believing that a situation or circumstance actually exists.

Question 3

What is the definition of reasonable grounds to suspect?

Answer 3

means having a sound basis for suspecting that a situation or circumstance is likely to exist.

Question 4

What is the definition of unlawfully at large?

Answer 4

in relation to a person, means that the person:
• has an arrest warrant in force (excluding fines warrants)
• has escaped from prison or is absent without leave
• has escaped from lawful custody, e.g. police cells or a police car
• is a special patient or a restricted patient and has escaped or has failed to return from leave
• is a care recipient or special care recipient (with an intellectual disability) and has escaped or has 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 CYFS custody.

Question 5

When considering a search, what must you do whenever possible?

Answer 5

1. Apply for a search warrant
   If you do not believe that the delay involved in obtaining a search warrant will make it impracticable to achieve your purpose in exercising the power, then you must apply for a search warrant.
2. Use warrantless powers
   If you believe that the immediate exercise of the power is necessary to achieve its purpose (e.g. obtaining evidence, protecting life or safety or arresting a person) then you should use the relevant warrantless power.
3. Undertake a consent search
   A consent search is not the most desirable action. This is because consent can be withdrawn at any time. If not conducted in accordance with the Act, and for the purposes outlined in the Act, a consent search may be unlawful.

It is best practice to use a search power if available.

Question 6

What is Section 131, Search and Surveillance Act 2012?

Answer 6

Identification and notice requirements

Before initial entry into or onto the place, vehicle or other thing to be searched, you must:
• identify yourself by name or unique identifier
• announce your intention to enter and search the place, vehicle or other thing under the Search and Surveillance Act 2012 or any other statutory power
• if you are not in Police uniform, provide proof of identity.

Before or on initial entry into or onto to the place, vehicle or other thing to be searched you must provide the occupier of the place or the person in charge of the vehicle or other thing with:
• a copy of the search warrant or
• (if the power is exercised without a warrant) the name of the Act2 and reason for the search, unless it is impracticable to do so in the circumstances.

You are not required to announce the Act, your intention, the reason; to identify yourself or provide a copy of the search warrant 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
• complying with these requirements would:
− endanger any person’s safety, or
− prejudice the successful use of the search and entry power, or
− prejudice ongoing investigations.
2 “The Act” always refers to the Search and Surveillance Act 2012.

If you undertook a search and the occupier or person in charge of the vehicle or other thing was not present, before leaving the place, vehicle or other thing searched you must:
• leave a copy of the search warrant in a prominent position or
• leave a written notice (POL form) stating the Act and reason for your search in a prominent position if you undertook a warrantless search.
• If it is not practicable to supply the search warrant or written notice at the time of completing the search, it must be supplied no later than 7 days after the search and must include:
− date and time of the start and finish of the search.
− name or unique identifier of the O/C with contact details
− whether or not anything has been seized
− authority and reason for seizure
− if anything has been seized, an inventory of items taken.

You may use reasonable force to enter the place, vehicle or other thing 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
• announcing your intention and identifying yourself would:
− endanger any person’s safety, or
− prejudice the successful use of the search and entry power, or
− prejudice ongoing investigations
or following a request, the person present refuses entry or does not allow entry within a reasonable time.

Question 7

What is Section 125, Search and Surveillance Act 2012?

Answer 7

Rules and obligations when searching persons

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

• identify yourself - by name or unique identifier
• advise the person being searched - of the name of the Act and reason for the search (unless this is impractical in the circumstances)
• provide evidence of your identity - if not in Police uniform.
• promptly provide an inventory - of items seized, and give a copy to the person you have searched

When exercising a power to search a person, you may:
-detain - the person for as long as is necessary to carry out the search
-use reasonable force - to carry out the search (arrest for obstruction and use force to complete the search)
-search - any item that the person is wearing or carrying or is in the person’s physical possession or immediate control
-use any equipment - to facilitate the search as long as it:
• involves minimal contact and
• is reasonable in the circumstances ask for the help of
• a medical practitioner or nurse
• a parent, guardian or the person responsible for the day-to-day care of the person being searched if you think it is in the interests of the person being searched
- ask for help from- another officer (from any law enforcement agency) who is also authorised to conduct strip searches and is of the same sex as the person being searched
if you are undertaking a strip search
-seize - anything the person is carrying or is in their physical possession or immediate control if that is the thing you are searching for or may lawfully be seized
-copy - all or part of any document the person is carrying or is in their physical possession or immediate control if that is the document you are searching for or may lawfully be seized
-access using reasonable measures - a computer system or other data storage device carried or in the physical possession or immediate control of the person being searched, if any intangible material that is the subject of the search may be on that computer system or other device
-copy any intangible material - accessed as above that is also the subject of the search or may otherwise be lawfully seized, including previewing, cloning or using 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, sound or video recordings or drawings may be relevant to the purposes of the search.

Note:
Provide your identity and state your intention, name of the Act and reason for the search, and say:
• I am Constable … e.g. Jo Smith (or unique identifier)
• I intend to search you under the Search and Surveillance Act 2012,
• because I believe / suspect …
You should state the name of the Act and reason for your search after you have searched the person if it is impractical to do so beforehand.

Question 8

What is Section 169, Search and Surveillance Act 2012?

Answer 8

Reporting use of powers

When you use a warrantless power of entry, search or surveillance you must report this by completing an online notification form as soon as practicable.
The notification must contain:
• a short summary of the circumstances
• the reasons you needed to exercise the warrantless power
• whether any evidential material was seized
• whether any criminal proceedings have been brought or are being considered as a consequence of seizing that evidential material.
You do not need to report on:
• a search of a person following their arrest or a search of a person following their detention under any other enactment (ss85 or 88)
• a search of a person in lawful custody (s11)
• a consent search (ss91-96)
• the exercise of a power of entry that does not confer a power of search (such as s14 – entry to prevent offence or respond to risk to life or safety).

Note:
You should make detailed notebook entries covering the circumstances and reasons (grounds to suspect or believe) for your use of a warrantless power. This will act as your decision record.
Ideally, you should also note which particular warrantless power(s) you used. These notes will form the basis of online notification and references for possible future Court appearances.
Police policy states that online notifications should be completed by the end of your shift

Question 9

What is Section 110, Search and Surveillance Act 2012?

Answer 9

Power incidental to search of places and vehicles

Every search power authorises you to:
• enter and search - the place, vehicle or other thing that you are authorised to enter and search and any items found in that place, vehicle or other thing (at any reasonable time)
• request assistance - with the entry and search (from any person)
• use reasonable force - on property only to search and lawfully seize
• seize - anything that is the subject of the search or anything else that may be lawfully seized
• bring and use - any equipment, or use any equipment found on the place, vehicle or other thing. You may also use electricity from the place, vehicle or other thing to operate the equipment used for entry and search
• bring and use - a trained law enforcement dog and its handler in or on the place, vehicle or other thing being searched
• copy - any documents that may be lawfully seized
• use reasonable measures - to access a computer system or other data storage device located (wholly or in part) at the place, vehicle, or other thing if any intangible material that is the subject of the search may be in that computer system or device
• copy - the intangible material described above or any other material that may lawfully be seized. This includes previewing, cloning, or using other forensic methods either before or after removal or examination
• take - photographs, drawings, sound and video recordings of the place, vehicle or other thing being searched and anything found there if you have reasonable grounds to believe they may relevant to the purposes of the entry and search

Question 10

What is Section 113, Search and Surveillance Act 2012?

Answer 10

Power of persons called to assist

A constable may call for assistance with exercising a search power and must:
• accompany - any assistant the first time the assistant enters the place, vehicle or other thing to be searched (if they are not a constable)
• supervise - any assistant in a reasonable manner for the circumstances (if they are not a constable)

Every person called on to assist a person executing a search power may:
• enter and search - the place, vehicle or other thing and any items found there at any reasonable time, where covered by the search power
• use reasonable force - on property only to enter and search and lawfully seize (when under the direction of a person exercising the search power)
• seize - anything that is the subject of the search or anything else that may be lawfully seized
• bring and use - any equipment, or use any equipment found on the place, vehicle or other thing. They may also use electricity from the place, vehicle or other thing to operate the equipment that the person exercising the power has determined may be lawfully used
• bring and use - a trained law enforcement dog and its handler in or on the place, vehicle or other thing being searched
• copy - any documents that may be lawfully seized
• use reasonable measures - to access a computer system or other data storage device located (wholly or in part) at the place, vehicle, or other thing if any intangible material that is the subject of the search may be in that computer system or device
• copy - the intangible material described above or any other material that may lawfully be seized. This includes previewing, cloning, or using other forensic methods either before or after removal or examination
• take - photographs, drawings, sound and video recordings of the place, vehicle or other thing being searched and anything found there if the person exercising the power has determined they may be lawfully taken.

Question 11

What is Section 116, Search and Surveillance Act 2012?

Answer 11

Securing a place, vehicle or other thing to be searched

s116(1)(a) - If you are carrying out a search of a place, vehicle or other thing, you may, in a reasonable manner and for a reasonable duration:
• secure the place, vehicle or other thing being searched
• secure any area in or on that place, vehicle or other thing
• secure any items found in or on that place, vehicle or other thing

s116(1)(b) - If you believe a person will obstruct or hinder any of the powers above, you may, in a reasonable manner and for a reasonable duration:
• exclude any person from the place, vehicle or other thing being searched
• exclude any person from any area within the place, vehicle or other thing
• give any reasonable direction to such a person.

s116(2) - If you are exercising the powers above and any person affected requests it, you must:
• identify yourself by name or unique identifier and
• state the name of the Act under which the search is taking place and
• the reason for the search unless it is impractical to do so in the circumstances
and
• provide proof of your identity if you are not in Police uniform.

Note:
Police policy states that you should always show identification when not in Police uniform.
For this section, to “secure” means to “freeze, control and preserve” a scene.

Question 12

What is Section 118, Search and Surveillance Act 2012?

Answer 12

Powers of detention incidental to powers to search places and vehicles

s118(1) - If you exercise a search power in relation to a place or vehicle and
-you need to determine if there is any connection between a person at the place or in or on the vehicle and the object of the search, then you may:
• detain any person who:
− is in that place or in or on the vehicle at the start of the search or
− arrives at the place while the search is being carried out or
− stops at, or enters, or tries to enter the vehicle while the search is being carried out
When detaining a person you may:
• detain them for a reasonable period but for no longer than the duration of the search:

s118(2) - • use reasonable force to effect and continue the detention of the person at the search scene: s118(4).

Note:
The detention of a person starts when they are directed to remain and ends when the person is told they are free to leave by the person exercising the search power.
Should the person leave the search scene (without reasonable excuse) where they have been detained, they can be arrested and charged under s176 of this Act.

Question 13

What is Section 119, Search and Surveillance Act 2012?

Answer 13

Powers to search persons at a place or vehicle

If you exercise a power of search in relation to a place or vehicle you may search any person:
• found at the place or in or on the vehicle or
• who arrives at the place or
• who stops at, or enters, or tries to enter or get into or onto the vehicle
if either
• you have reasonable grounds to believe that evidential material that you are searching for is on the person: s119(1) or
• you have reasonable grounds to suspect that the person has in their possession a dangerous item that poses a threat to safety and you believe that immediate action is needed to address that threat: s119(2)

s119(3)
You must return any item seized to the person it was seized from (unless possession of the item constitutes an offence)
• once the search has been completed or
• you are satisfied that there is no longer a threat to safety.

Question 14

What is Section 14, Search and Surveillance Act 2012?

Answer 14

Warrantless entry to prevent offences or respond to risk to life or safety

(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 place or vehicle may—
(a) enter the place or vehicle without a warrant; and
(b) take any action that he or she has reasonable grounds to believe is necessary to prevent the offending from being committed or continuing, or to avert the emergency.

(2) The circumstances are as follows:
(a) an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or serious loss of, any property:
(b) there is risk to the life or safety of any person that requires an emergency response.

Question 15

What is Section 7, Search and Surveillance Act 2012?

Answer 15

Entry without warrant to arrest person unlawfully at large

If you have reasonable grounds:
• to suspect that a person is unlawfully at large and
• to believe that the person is in a place or vehicle you may:
• enter the place or vehicle without warrant to search for and arrest that person.

Question 16

What is Section 8, Search and Surveillance Act 2012?

Answer 16

Entry without warrant to avoid loss of offender or evidential material

If you have reasonable grounds to:
• suspect that a person has committed an offence punishable by imprisonment 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 concealed, altered, damaged or destroyed.
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 does not give you a power to search for evidential material.

Question 17

What is Section 9, Search and Surveillance Act 2012?

Answer 17

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

If you have reasonable grounds to suspect that a person is:
• unlawfully at large or
• has committed an offence punishable by imprisonment and
• you have reasonable grounds to believe the person is in or on a vehicle
you may:
• stop the vehicle without warrant to arrest the person.

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.
• Police policy also states that you must produce identification when not in Police uniform.

Question 18

What is Section 10, Search and Surveillance Act 2012?

Answer 18

Powers and duties of constable after vehicle stopped

If you are exercising the stopping power under s9 you may:
• require any person in or on the vehicle to supply all or any of their name, address, other contact details and DOB if you have reasonable grounds to suspect:
− they are unlawfully at large or
− they have committed an offence punishable by imprisonment.

You may also
• search the vehicle to locate the person the vehicle was stopped for if you have reasonable grounds to believe that person is in or on the vehicle
• search the vehicle to locate evidential material in relation to any offence in respect of which the vehicle was stopped if the person sought:
− has been arrested or
− is seen fleeing from the vehicle before they can be arrested.

If the driver is not the person the vehicle was stopped for you must tell the driver the object of the proposed search before conducting the search.

Question 19

What is Section 121, Search and Surveillance Act 2012?

Answer 19

s121(1) – Stopping a vehicle without a warrant for purposes of search

If you are satisfied that there are grounds to conduct a warrantless search under this Act, you may:
• stop a vehicle to conduct the warrantless search.

s121(2) – Stopping a vehicle to execute a search warrant

If you are satisfied that a search warrant has been issued under this Act and it is in force, you may:
• stop a vehicle to execute the search warrant.
If you are exercising a power under s121(1) or (2) you must on request of any person affected by the stop:
• identify yourself by name or unique identifier and
• state the Act under which the search is taking place and the reason for the search unless it is impracticable in the circumstances
and • produce evidence of your identity if you are not in Police uniform.

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 20

What is Section 128, Search and Surveillance Act 2012?

Answer 20

Duty to remain stopped

If you exercise a power to:
• stop a vehicle or
• search a vehicle
you may require the vehicle to remain stopped for as long as is reasonably necessary to exercise any powers in relation to:
• the vehicle or
• the occupants of the vehicle.

Question 21

What is Section 129, Search and Surveillance Act 2012?

Answer 21

Duty to provide information

If you exercise a power to stop a vehicle, as soon as you have stopped it, you must provide the driver with:
• your name or unique identifier and
• the Act under which the search is taking place and the reason for the search unless it is impracticable to do so in the circumstances
and
• proof of your identity if you are not in Police uniform (Police policy).

Question 22

What is Section 18, Search and Surveillance Act 2012?

Answer 22

Warrantless searches associated with arms

If you (any constable) have reasonable grounds to suspect that a person who 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 1983 or
• the person, by reason of their physical or mental condition, is incapable of having proper control of the arms or
• the person, by reason of their physical and mental condition, may kill or cause bodily injury to any person or
• a protection order is in force against the person under the Domestic Violence Act 1995 or
• there are grounds to make an application against the person for a protection order under the Domestic Violence Act 1995 or
• a police safety order is in force against the person under the Domestic Violence Act 1995
then you may do any or all of the following without warrant:
• search the person
• search anything in their possession or under their control (including a vehicle)
• enter a place or vehicle to search:
− the person
− anything in the person’s possession or under their control (including a vehicle)
• seize and detain any arms found
• seize and detain the person’s firearms licence.

s18(3)
If you (any constable) have reasonable grounds to suspect that there are arms in a place or vehicle and
• a category 3 or 45
− has been committed or offence or an offence against the Arms Act 1983:
− is being committed or
− is about to be committed or
• the arms may be evidential material in relation to a category 3 or 4 offence or an offence against the Arms Act 1983
you may without warrant:
• enter the place or vehicle and search it
• seize and detain any arms or firearms licence found there.

Note:
Advise your NCO if you intend to execute a warrantless search for arms, unless impractical in the circumstances.
Section 18(3) powers are available to any constable.
Under the Search and Surveillance Act 2012, the definition of "arms" includes ammunition (refer Key Definitions).

Note:
The Criminal Procedure Act 2011 introduced categories of offences which came into force on 1 July 2013. Category 3 and 4 are the equivalent of current indictable offences.
Category 3 offence – the same meaning as in section 6 of the Criminal Procedure Act 2011:
• listed in Schedule 1 to the Criminal Procedure Act 2011
Category 4 offence – the same meaning as in section 6 of the Criminal Procedure Act 2011:
• listed in Schedule 1 to the Criminal Procedure Act 2011

Question 23

What is Section 27, Search and Surveillance Act 2012?

Answer 23

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

If you have reasonable grounds to suspect that:
• a person is committing an offence against s202A(4)(a) of the Crimes Act 1961 (in a public place)
you may without warrant:
• search the person.

Question 24

What is Section 28, Search and Surveillance Act 2012?

Answer 24

Searching vehicles without warrant for offensive weapons

If you have reasonable grounds to suspect that:
• a person travelling in a vehicle (or who has exited from the vehicle) is committing an offence against s202A(4)(a) of the Crimes Act 1961 (in a public place) and
• the vehicle contains a knife, offensive weapon or disabling substance
you may without warrant:
• search the vehicle

Question 25

What is Section 29, Search and Surveillance Act 2012?

Answer 25

Power to search vehicles without warrant 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 warrant.

Note:
Section 29 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 26

What is Section 15, Search and Surveillance Act 2012?

Answer 26

Entry without warrant to find and avoid loss of evidential material

If you have reasonable grounds 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 you have reasonable grounds to believe that:
• evidential material relating to the offence is in a place and
• if entry is delayed in order to obtain a search warrant, the evidential material will be concealed, altered, damaged or destroyed
you may:
• enter and search the place without a warrant.

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 27

What is Section 16, Search and Surveillance Act 2012?

Answer 27

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

If a person is in a public place and you have 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
you may:
• search the person without warrant.

Question 28

What is Section 17, Search and Surveillance Act 2012?

Answer 28

Warrantless entry and search of a vehicle for evidential material relating to certain offences

If a vehicle is in a public place and you have 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
you may:
• enter and search the vehicle without warrant.

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 29

What is Section 83, Search and Surveillance Act 2012?

Answer 29

Entry without warrant after arrest

If you have arrested a person and have reasonable grounds to believe that:
• evidential material relating to the offence for which the person was arrested is at a place and
• if entry is delayed in order to obtain a search warrant, the evidential material will be concealed, altered, damaged or destroyed
you may:
• enter that place without warrant to search for the evidential material (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 30

What is Section 84, Search and Surveillance Act 2012?

Answer 30

Warrantless entry and search of vehicle after arrest

If you have arrested a person and have reasonable grounds to believe that:
• evidential material relating to the offence for which the person was arrested is in or on a vehicle
you may:
• enter and search that vehicle for the evidential material without warrant (whether or not the person arrested was with the vehicle).

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

Question 31

What is Section 30, Search and Surveillance Act 2012?

Answer 31

Obtaining authorisation for warrantless road block

If a senior constable (Sergeant / Acting Sergeant or higher)
• has reasonable grounds to believe that in or on a vehicle there is a person they have reasonable grounds to suspect
− has committed an offence punishable by a term of imprisonment or
− is unlawfully at large and
• has reasonable grounds to suspect that the vehicle will travel past the place where it is proposed that the road block be established
and
• is satisfied that, as far as is reasonably practicable, the safety of all road users will be ensured in the area in which it is proposed that the road block be established
then the senior constable (Sergeant / Acting Sergeant or higher) may:
• authorise the establishment of a road block to arrest the person.

Note:
Only senior constables can authorise the establishment of a road block to arrest a person. The authorisation may be granted orally or in writing.
For this section senior constable means a constable who holds the rank of sergeant or higher and includes any constable who is acting in any such rank.

Question 32

What is Section 32, Search and Surveillance Act 2012?

Answer 32

Authorised road blocks implemented without warrant

When a road block is authorised under s30, you may:
• establish - a road block at the place specified in the authorisation
• stop - vehicles at or in the vicinity of the road block
• 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 any or all of his or her name, address and date of birth
• search - the vehicle for the purpose of locating the person who has committed an offence punishable by a term of imprisonment or who is unlawfully at large if any constable has reasonable grounds to believe the person is in or on the vehicle

Note:
Section 31(2) requires the person giving the authorisation to keep or cause to be kept a written record of the:
• location of the road block
• period or periods for which the authorisation was granted or renewed
• grounds on which the authorisation was granted or renewed.

Question 33

What is Section 123, Search and Surveillance Act 2012?

Answer 33

Items of uncertain status may be seized

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

Note:
Items of uncertain status can be seized during a search of a place, vehicle, other thing or a person.

Question 34

What is Section 112, Search and Surveillance Act 2012?

Answer 34

Seizure of items in plain view

If you, as part of your duties:
• exercise a search power or
• are conducting a lawful search of a person or
• are lawfully in any place or in or on a vehicle
you may seize any item(s) you (or anyone assisting you) find:
• in the course of carrying out the search or
• as a result of observations at that place or in or on the vehicle
and you have reasonable grounds to believe that you could have seized the item under:
• any search warrant that you could have obtained or
• any other search power you may exercise.

Question 35

What is Section 91, Search and Surveillance Act 2012?

Answer 35

Application of rules about consent searches

If you have a statutory power to search a person, vehicle, place or other thing then you must use the statutory powers contained within the Search and Surveillance Act 2012.

Question 36

What is Section 92, Search and Surveillance Act 2012?

Answer 36

Purposes for which consent search may be undertaken

You may conduct a consent search for one or more of the following purposes:
• 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.
You may ask a person to consent to a search of:
• themselves
• a place
• a vehicle or
• a thing apparently in their control.

Question 37

What is Section 93, Search and Surveillance Act 2012?

Answer 37

Advice that must be given before consent search undertaken

Before you undertake a consent search you must:
• determine that the search is for a purpose authorised by s92 and
• advise the person of the reason for the proposed search and
• advise the person that they may either consent to be searched or refuse to be searched

Question 38

What is Section 94, Search and Surveillance Act 2012?

Answer 38

Circumstances where search is unlawful

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 as set out in s93 or
• consent is given by a person who does not have the authority to consent.

Question 39

What is Section 95, Search and Surveillance Act 2012?

Answer 39

Ability of persons under 14 years to consent to searches of places, vehicles or other things

Persons under 14 years of age are unable to consent to the search of:
• a place or
• a vehicle or
• other thing.

Note:
A person who is under 14 years old and driving a vehicle can consent to a search of the vehicle if:
• there is no passenger over 14 years of age in the vehicle who:
− has authority over the vehicle, and
− is able to consent to the search of the vehicle.

Question 40

What is Section 96, Search and Surveillance Act 2012?

Answer 40

Exceptions to consent search rules

Sections 92 to 95 do not:
• apply to a search conducted as a condition of entry to any public or private place or
• apply to a search conducted in accordance with a statutory search power or
• affect the rule of law relating to the implied licence to enter property.

Question 41

What is Section 85, Search and Surveillance Act 2012?

Answer 41

Rub-down search of arrested or detained persons

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

Note:
A s85 search should be carried out on all people who have been arrested or detained under enactment before placing them in a vehicle or secure area.
Common examples of enactments under which a person can be detained in the context of s85 include:
• Policing Act 2008 (intoxicated persons)
• Mental Health (Compulsory Assessment and Treatment) Act 1992
• Intellectual Disability (Compulsory Care and Rehabilitation) Act 1992
• Land Transport Act 1998
• Children, Young Persons and Their Families Act 1989

There is no requirement to complete an online notification for the search of a person carried out under s85. The exemption is under s169(4)(a).
s85(2) – Rub-down search process of arrested or detained person
If you are conducting a rub-down search you may do any or all of the following:
• run or pat your hand over the body of the person being searched whether outside or inside the clothing (other than the underclothing)
• insert your hand inside any pocket or pouch in the clothing of the person being searched (other than the underclothing).
For visual inspection, you may require the person being searched to:
• open their mouth
• display the palms of their hands
• display the soles of their feet
• lift or rub their hair.

Question 42

What is Section 86, Search and Surveillance Act 2012?

Answer 42

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

When you are conducting a rub-down search you may require the person being searched to:
• remove, raise, lower or open any outer clothing such as a:
− coat
− jacket
− jumper
− cardigan
being worn by that person except where the person has no other clothing, or only underclothing under the outer clothing and
• remove any:
− head covering
− gloves
− footwear
− socks
− stockings.

Note:
Items of clothing removed from the person can also be searched separately.
Any items carried by or in the possession of the person being searched at the time of the search are also included in the search: s86(2)(a)
This means a bag carried by the person can be searched but the search would not extend to the search of a vehicle.

Question 43

What is Section 87, Search and Surveillance Act 2012?

Answer 43

Rub-down search may include visual examination

A rub-down search may include:
• a visual examination of the mouth, nose and ears
but you must not:
• insert any instrument, device or thing into any of those orifices.
You may use an instrument or device to illuminate or magnify any of those orifices.

Question 44

What is Section 88, Search and Surveillance Act 2012?

Answer 44

Warrantless search of arrested or detained persons (for evidential material)

You may search a person pursuant to arrest or statutory detention if you have reasonable grounds to believe the person is carrying anything that:
• is evidential material relating to the offence in respect of which the arrest is made or the person is detained. or
• may be used to harm any person or
• may be used to facilitate the person’s escape

There is no requirement to complete an online notification for the search of a person carried out under s88. The exemption is under s169(4)(a).

Note:
Common examples of enactments under which a person can be detained include:
• Policing Act 2008 (intoxicated persons)
• Mental Health (Compulsory Assessment and Treatment) Act 1992
• Intellectual Disability (Compulsory Care and Rehabilitation) Act 1992
• Land Transport Act 1998
• Children, Young Persons and Their Families Act 1989
Searching for evidential material includes looking for marks on a person such as birthmarks, tattoos and scars for the purpose of identification.

Question 45

What is Section 11, Search and Surveillance Act 2012?

Answer 45

Warrantless searches of people who are, or are to be, locked up in Police custody

You may conduct a warrantless search of any person who has been taken into lawful custody and is:
• at a Police station or
• or is to be locked up in other premises being used for Police purposes or
• in or about to be placed in a vehicle being used for Police purposes

You may conduct a warrantless search under this power before the person is locked up

s11(3) - You may also conduct a search of a person after they have been locked up if:
• the person was not searched before they were locked up or
• you reasonably suspect that they have been close to another person who has not been locked up in Police custody or
• you reasonably suspect that they have been close to another person who has been locked up but not searched yet or
• you have reasonable grounds to believe that the person may have anything that may be used to harm themselves or others.

Note:
Under this section, a search of a person can be carried out by a constable or searcher. A constable or searcher may take property found on the person during the search.
You do not have to comply with s125 obligations (as above) if you are conducting a search under s11(3). There is no requirement to complete an online notification for the search of a person carried out under s11. The exemption is under s169(4)(b).

Note:
“Locked up” means a person taken into lawful custody and being placed behind a closed or locked door that prevents them from leaving. Examples area secure interview room, 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 46

What is Section 13, Search and Surveillance Act 2012?

Answer 46

Property taken from people locked up in Police custody

If you take money and/or items of property from a person under s11, you must return them when the person is released from custody, unless you consider that:
• any money or property may need to be given in evidence in proceedings arising out of a charge brought against the person or
• possession of any money or property may constitute an offence.

If the person is released from Police custody and placed in the custody of another person, money and property taken from them must be delivered to:
• the person who is taking over custody or
• the person in charge of the facility the person is being moved to
unless
• any of the points in the top box apply.