4.0 Search and Surveillance

Question 1

In the Search and

Surveillance Act 2012 , how is ‘Evidential material’ defined?

Answer 1

Evidential material, in relation to an offence or suspected offence, means evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence.

Question 2

In the Search and

Surveillance Act 2012 , how is ‘Reasonable grounds to believe’ defined?

Answer 2

Having a sound basis for believing that a situation or circumstance actually exists e.g. reasonable grounds to believe that the search will locate evidential material relating to that offence.

Question 3

In the Search and

Surveillance Act 2012 , how is ‘Reasonable grounds to suspect’ defined?

Answer 3

Having a sound basis for suspecting that a situation or circumstance is likely to exist, e.g. reasonable grounds to suspect that an offence has been committed.

Question 4

In the Search and

Surveillance Act 2012 , how is ‘Unlawfully at large’ defined?

Answer 4

Unlawfully at large, in relation to a person, means that a person is any one or more of these:

(a) a person for whose arrest a warrant (other than a warrant issued under Part 3 of the Summary Proceedings Act 1957) is in force:
(b) unlawfully at large within the meaning of the Corrections Act 2004 or the Parole Act 2002
(c) a prison breaker within the meaning of section 119 of the Crimes Act 1961
(d) an escapee from lawful custody within the meaning of section 120 of the Crimes Act 1961
(e) a special patient or restricted patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 who has escaped or failed to return on the expiry or cancellation of a period of leave
(f) a care recipient or special care recipient within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 who has escaped or failed to return on the expiry or cancellation of a period of leave
(g) a young person within the meaning of the Oranga Tamariki Act 1989 who is subject to an order made under section 311(1) of that Act and who is absconding from the custody of the chief executive (as defined in that Act).

Question 5

Describe Lawfulness and

reasonableness.

Answer 5

All searches must be lawful and reasonable.

If the search is unlawful because it was conducted without a warrant, then it is very likely to be unreasonable as well.

However, take note of R v Jefferies [1994] which states: “Lawfulness is not inevitably determinative of reasonableness, or unlawfulness of unreasonableness”.

If particular evidence would still have been discovered if the unlawful search had not been conducted, then the evidence may still be deemed admissible.

Question 6

Describe what is meant by Search hierarchy.

Answer 6

You must observe the search hierarchy.

If you conduct a search, or seize evidence without a warrant where you had the opportunity to obtain a warrant, any subsequent court proceedings may deem the search unreasonable and any evidential material obtained as a result of the search or seizure may be deemed inadmissible.

You may also lose any evidence you discover about any other offence.

Question 7

Describe what is meant by Decision records.

Answer 7

You must record your reasonable grounds to suspect and/or believe that were known at the time a warrantless power was used. You may need to rely on this record in court.

Question 8

Describe what is meant by Identification and

notice.

Answer 8

The owner / occupier/ or person in charge of a place, vehicle or thing being searched has the right to know who is searching, the person’s authority for searching and the reasons why they are conducting a search, unless there are good reasons for not providing this information.

Question 9

Force used against property must be…

Answer 9

Any force used to gain entry to any place, vehicle or other thing for the purpose of carrying out your search must always be reasonable in the circumstances. (s131(3))

Question 10

Search or seizure should be witnessed by whom?

Answer 10

Any search of a place, vehicle or other thing, or any removal or seizure of property during the search, should be witnessed (if practicable) by another Police employee, enforcement officer from another agency or person assisting with the search.

Question 11

Seized property must be…

Answer 11

Documented. All property removed or seized from a place, vehicle and other thing must be appropriately documented and accounted for.

Question 12

How must I conduct a search for it to be both lawful and reasonable?

Answer 12

you must:

• exercise a warrantless power, or
• execute a warrant power, or
• conduct the search, examination or inspection with the person’s consent.

Question 13

What is the pitfall of a consent search?

Answer 13

When a statutory power exists to search, you should use that power rather than relying on a consensual search, as consent may be withdrawn by the person at any time.

Question 14

What is Inevitable discovery mean?

Answer 14

If evidence obtained as a result of a breach of the New Zealand Bill of Rights Act 1990 would have been obtained even if the breach had not occurred, the fact that it would inevitably have been discovered is a factor to be taken into account in determining whether it is admissible under the balancing test in section 30 of the Evidence Act 2006. (See R v Williams [2007] 3NLR 207).

However it will not be admissible as a matter of course.

Question 15

You have 6 warrantless powers to search people, what are they?

Answer 15

• 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 (s21, 22 & 23)
• for knives, offensive weapons and disabling substances (s27)
• after arrest or detention (s85 & 88).

Question 16

What is the incidental power when searching places, vehicles and things?

Section 110

Answer 16

• 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.

Question 17

I have a power of entry to arrest a person who is unlawfully at large, what must I have before I enter?

Answer 17

I must have reasonable grounds to suspect that a person is unlawfully at large and believe that the person is in a place or vehicle.

Question 18

If I have reasonable grounds to suspect that a person is unlawfully at large and believe that the person is in a place or vehicle what can I do?

Answer 18

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

Question 19

I have a power of entry to avoid the loss of an offender or evidential material if…

Answer 19

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

Question 20

If I use Section 8 - Entry to avoid loss of offender or evidential material, what can I do?

Answer 20

You may…

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

You may not…

• search for evidential material unless an arrest is
  made and a search incidental to that arrest is undertaken under sections 83-88.

Question 21

If I do not make an arrest can I search for evidence?

Answer 21

No, you may not search for
evidential material unless an arrest is made and a search incidental to that arrest is undertaken under sections
83-88.

Question 22

I have a power of entry to prevent offence or respond to risk to life or safety. What do I need to have before I commence a search?

Answer 22

If you have reasonable grounds to…

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

• there is risk to the life or safety of any person that requires an emergency response.

Question 23

What does ‘take any action’ mean in relation to Section 14?

Answer 23

It means any action that is reasonable in the

circumstances.

Question 24

You have a search power to enter and search for evidential material for serious offences. What do I need to have before I do this?

Section 15

Answer 24

If you have reasonable grounds to…

• suspect an offence punishable by 14 years imprisonment or more has been, is being, or is about to be committed, and

· believe that:

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

Question 25

What is section 15 about providing?

Answer 25

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 have to resort to section 117 rather than exercise a warrantless power.

Question 26

I have a power to search a vehicle in a public place for evidential material. What must I have before doing this?

Section 17

Answer 26

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.

Question 27

What if a vehicle is parked in other than a public place?

Answer 27

Use the powers under Section 15

Question 28

Tell me about warrantless searches associated with Arms in places or vehicles?

Answer 28

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 (means an indictable offence until Criminal Procedure Act 2011 comes into effect) 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 29

What must I do before conducting an arms act search?

Answer 29

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 30

Warrantless searches for offensive weapons. What must I have

Answer 30

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.

Question 31

Warrantless search of vehicle for stolen property. What must I have?

Answer 31

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 32

Entry and search of places after arrest. What must I have?

Section 84

Answer 32

If you have arrested a person for an offence:

and have reasonable grounds to…

believe that:

• evidential material relating to the offence is at a place, and
• if entry is delayed to obtain a warrant, evidential material will be concealed, altered,
  damaged or destroyed (CADD)

Question 33

What does the quick reference guide: warrantless use of powers notifications and reporting contain?

Answer 33

1. Obtain prior approval from a sergeant or above where applicable (e.g. arms search under section 18).
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 (i.e. reasonable grounds to suspect / reasonable grounds to believe) in your notebook.
4. Record the use of powers in the Search and Surveillance System for warrantless notifications.
5. Where applicable, complete a notification using the ‘Create Notification’ feature on the Microsoft Outlook Bulletin Board to notify relevant groups about drugs, firearms, children, etc

Question 34

When may I conduct a consent search?

Answer 34

• 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.

Question 35

What advise must I give before conducting a consent search?

Answer 35

• determine that the search is for a purpose listed in section 92
• advise the person from whom consent is sought:
  (i) of the reason for the proposed search
  (ii) that they may consent or refuse to consent to the search.

Question 36

What is good practice when conducting a consent search?

Answer 36

• identify yourself by name,
• give the reason for your search,
• if not in Police uniform produce evidence of your identity.

Question 37

When might a consent search be unlawful

Answer 37

• it is not for a purpose set out in section 92, or
• you fail to give the required advice set out in section 93, or
• you undertake a search relying on consent given by a person who does not have authority to give that consent.

Question 38

A person under 14 years of age usually cannot consent to the search of a place,
vehicle, or other thing. What is the exception?

Answer 38

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.

Question 39

Can a person under the age of 14 consent to a search of themselves or anything in their immediate possession or control?

Answer 39

Yes, 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 40

Exceptions to consent search rules?

Answer 40

Consent search rules do not:

• apply to a search conducted:
  (i) as a condition of entry to any public or private place (e.g. a condition of entry to a sporting fixture or concert), or
  (ii) in accordance with a power conferred by an enactment, or
• affect the rule of law relating to the implied licence to enter
  property.

Question 41

If a person consents to a search of themselves, you may extend the search to
any item that…?

Answer 41

• the person is wearing or carrying, (e.g. a bag), or
• is in the person’s physical possession or immediate control PROVIDED the person consents to these items being searched.

Question 42

Every search power (with or without a warrant) authorises you to do what?

Answer 42

Enter and search

Request assistance

Use reasonable force in respect of property only

Seize

Bring and use equipment

Bring and use dog

Copy documents

Access a computer system or other data storage device

Copy intangible material

Take photographs, and recordings, if you have reasonable grounds to believe they may be relevant to the purposes of the entry and search.

Question 43

Does this section allow me to use force on a person?

Answer 43

Note: This power does not authorise the application of force to any person (s115 (3)).

The use of force against a person for the purpose of search is covered by section 125.

Question 44

When taking photographs and recordings what must I have?

Answer 44

Reasonable grounds to believe they may be relevant to the purposes of the entry and search.

Question 45

What are the limitations and considerations when exercising search powers?

Answer 45

• any conditions imposed by an issuing officer when issuing a search warrant
• the privilege and confidentiality provisions in the Act.
• “reasonableness” under section 21 New Zealand Bill of Rights Act 1990.

Question 46

Are there special powers when the application for a search warrant is pending?

Answer 46

Yes, 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 47

I may only exercise these special powers when the application for a search warrant is pending until the first of the following occurs…?

Answer 47

• 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.
• the expiry of six hours from when the power is first exercised

Question 48

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…?

Answer 48

• 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 (e.g. 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.

As soon as you have detained a person under section 118, you must take active steps to determine whether there is a connection between them and the search.

Question 49

If you are searching a place or vehicle, you may search any person found, arrives, stops at or tries to get into that vehicle if you have reasonable grounds to believe…?

Answer 49

• that evidential material that is the object of the search is on that person, or
• 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 that threat.

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 section 19 or 21.

Question 50

If you seize any item posing a threat to safety, what must I do at the conclusion of the search?

Answer 50

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.

Question 51

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…?

Answer 51

• apprehend the person or
• enter any place to
  apprehend the person or
  vehicle

if you have…

• been freshly pursuing the person from the intended search location until apprehended, and
• you have reasonable grounds to believe that relevant evidential material is still on the person or in or on the vehicle.

Question 52

When discussing ‘Powers of search when suspect pursued’. Does it relate to any officer who catches the offender?

Answer 52

No, 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 section 113 and under their direct supervision and control.

Question 53

If I have a warrant to search a vehicle and have reasonable grounds to believe that the vehicle is on a property, can I enter the property to search it?

Section 127

Answer 53

Yes, you may enter
any place where you have reasonable grounds to believe the vehicle is to
locate and search it.

Question 54

What are the identification and announcement requirements on entry?

Answer 54

• 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.

Question 55

When must I go through the identification and announcement requirements ?

Answer 55

before your initial entry.

Question 56

What else must I do before or on initial entry?

Answer 56

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:
  (i) a facsimile or a printout of an electronically generated copy of the warrant, or
  (i) a copy which is endorsed to that effect)

or

• for a warrantless search or securing a scene under section 117 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.

Question 57

When do I not have to announce my entry?

Answer 57

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:

(i) endanger the safety of any person, or
(ii) prejudice the successful exercise of the entry and search power, or
(iii) prejudice ongoing investigations.

Question 58

Is wearing SRBA sufficient to satisfy a requirement that you were in uniform?

Answer 58

No, 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 59

Using reasonable force to enter property. 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.
When deciding whether to force entry, you must consider the possibility that
such entry may present a danger to:

Answer 59

• the Police party
• the occupants of the premises, including children or other vulnerable people present
• members of the public.

Question 60

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:

Answer 60

• 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.

Question 61

Before making an unannounced forced entry, assess the risk and consider:

Answer 61

• 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 62

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

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:

Answer 62

• you obtain another warrant, or

- you exercise plain view seizure under section 123.

Question 63

If you are exercising a search power to locate cocaine and find a package containing white powder, but I am not sure what it, what can I do?

Answer 63

you may remove the package under section 112 for the purpose of examination or analysis to determine whether or not the powder is cocaine and can then lawfully be seized.

The section 112 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 section 123 or to secure the place, vehicle or other thing being searched while an application for a search warrant is pending under section 117.

Question 64

Seizure of items in plain view.
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:

Answer 64

• 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.

Question 65

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

Answer 65

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, a burglar is not lawfully present.

Question 66

For searches conducted when occupier or person in charge of vehicle or
thing is not present you must…?

Answer 66

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 67

How old must you be to be treated as an occupier?

Answer 67

Of or over the age of 14 years.

Question 68

Duty to give notice to owners of things that are seized. 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…?

Answer 68

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 69

What must I be careful of when giving a 268 list of seized stolen property back to owners?

Answer 69

The owner of a stolen item may pose a threat to the person it was seized from e.g. be a gang member wanting retribution.

Question 70

If I am stopping a vehicle to search it or effect an arrest, can I use 114 of the LTA?

Answer 70

No, powers to stop and move vehicles or to close roads under the Land Transport Act 1998 or under other legislation for emergency purposes (e.g. in a civil defence emergency) must not be used for the purpose of search.

Question 71

You may stop a vehicle to conduct a search without a warrant if you are satisfied that…

Answer 71

grounds exist to search the vehicle.

Question 72

You may stop a vehicle to conduct a search with a warrant if you are satisfied that…

Answer 72

the warrant has been issued and is in force.

Question 73

What if I find a vehicle but it is unsafe to search it properly where it is?

Answer 73

You may move a vehicle to another place if 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.

Question 74

Stopping vehicles without warrant to effect arrest, tell me about it?

Answer 74

You may stop a vehicle without warrant to arrest a person if you have reasonable grounds:

• to suspect that a person:
  (i) is unlawfully at large, or
  (ii) has committed an offence punishable by imprisonment, except a fines warrant, and
• to believe the person is in or on the vehicle.

Question 75

What powers do I have after stopping a car under section 9?

Answer 75

• 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:
  (i) has been arrested, or
  (ii) 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 76

What does Police policy say you must do when stopping a vehicle?

Answer 76

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 77

Obtaining authorisation for a warrantless road block, who may authorise this?

Answer 77

a senior constable (holding or acting in a position level of sergeant or above)

Question 78

What grounds must you have for a road block?

Answer 78

• believe that in or on a vehicle there is a person who you have reasonable grounds to suspect:
  (i) has committed an offence punishable by a term of imprisonment
  or
  (ii) 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.

Question 79

How long can a roadblock be in place for?

Answer 79

24 hours max

Question 80

How long can a roadblock be extended by after 24 hours?

Answer 80

a district court judge may renew for a single further period not exceeding 24 hours

Question 81

What can we do at a road block?

Answer 81

Establish road
block

Stop vehicles

Require
particulars

Search vehicle (excluding non-payment of fines warrant)

Question 82

During a road block you may also require a vehicle remain stopped for…?

Answer 82

as long as is reasonably necessary to enable you to exercise any of the powers above in respect of the vehicle or its occupants.

Question 83

In the event of authorising a roadblock what must I consider?

Answer 83

Community impact assessments should be conducted in writing during the planning stage before establishing a road block.

Be prepared to carry out an ongoing mental CIA as the situation changes during execution of the road block.

Question 84

What are the three types of personal searches?

Answer 84

• rub-down searches
• strip searches
• internal searches.

Question 85

General principles applying to all searches?

Answer 85

• The search must be lawful, i.e. 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 86

When can people be searched?

Answer 86

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.

Question 87

There are six search powers for people, what are they?

Answer 87

• 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 (s21, 22 & 23)
• for offensive weapons (s27)
• after arrest or detention (s85 & 88).

Question 88

Warrantless searches of people in public places for evidential material, tell me about this?

Answer 88

You may search a person in a public place without a warrant if you have reasonable grounds to believe that they are in possession of evidential material relating to an offence punishable by 14 years imprisonment or more.

Question 89

Warrantless searches of people in possession of arms, tell me about this?

Answer 89

If you have reasonable grounds to…

suspect a 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 1983, or
• the person, by reason of their physical or mental condition:
  (i) is incapable of having proper control of the arms, or
  (ii) may kill or cause bodily injury to any person, or
• that, under the Domestic Violence Act 1995:
  (i) a protection order or Police
  safety order is in force against that person,
  or
  (ii) there are grounds to apply for a protection order against them

you may…

do any or all of the following without a warrant:

• search the person
• search anything in their possession or under their control (including a vehicle)
• enter a place or vehicle to carry out one of the above
• seize and detain:
  (i) any arms found
  (ii) any licence under the Arms Act 1983 that is found.

Note: Arms are “in a person’s
possession or under their control” if they have access to them. They do not need to be in the person’s immediate possession.

Question 90

Warrantless searches of people for offensive weapons, what is the threshold to search?

Answer 90

you have reasonable grounds to suspect the person is committing an offence against section 202A(4)(a) of the Crimes Act 1961

Question 91

Which power should be used for searching arrested or detained persons?

Answer 91

• a rubdown search, under sections 85 - 87, and
• a warrantless search under section 88.

A search may be carried out under one of these provisions before the search conducted under section 11 when people are locked up.

Question 92

Searching people who are, or are to be, locked up in Police custody (s11) You may search a person who has been taken into lawful custody and is:

Answer 92

• 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.

Question 93

When might I use this power under section 11?

Answer 93

This power may be exercised before the person is locked up.

Question 94

What does “locked up” mean?

Answer 94

“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 95

After a person has been locked up they can only be searched if…?

Answer 95

• 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:
  (i) a person who was not locked up in Police custody (other than an enforcement officer or a searcher), or
  (ii) 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.

Question 96

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:

Answer 96

• harm any person (including themselves), or

- facilitate the person’s escape.

Question 97

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 any thing on or carried by the person that:

Answer 97

• 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.

Question 98

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

Answer 98

• 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

Question 99

Who must approve a search under section 88?

Answer 99

A constable who is OF or above the level position of sergeant.

Question 100

When exercising a power to search a person you must:

Answer 100

• 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.

Question 101

Other general powers associated with the power to search people. When exercising a power to search a person, you may:

Answer 101

detain

use reasonable force
- You should first arrest for obstruction and then use force to complete the search

use any equipment or aids, e.g. torch

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

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

access using reasonable measures

copy intangible material

take photographs

Question 102

What is a rub-down search?

Answer 102

• 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:
  (i) open their mouth
  (ii) display the palms of their hands or the soles of their feet
  (iii) lift or rub their hair.

Question 103

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

Answer 103

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.

Question 104

Rub-down search of all prisoners unless unjustified in circumstances. All prisoners must undergo a rub-down search as soon as they arrive at the custody area or station unless:

Answer 104

• it would be unjustifiable to search the person because, for example:
  (i) it is a minor charge
  (ii) all evidence is located
• the prisoner is:
  (i) not placed into a cell or left unsupervised and is being immediately bailed, or
  (ii) not at risk of harming any person or escaping before they are bailed, or
• there is justification in the circumstances to conduct a strip search instead.

Question 105

Case Law - Inquiring as to a reasonable excuse for possessing an offensive weapon before conducting a search. Involves camping equipment.

Answer 105

The Court suggested that prior to the search the officer could have asked M why he had the machete in his vehicle. Upon M’s explanation, which would be unlikely to be deemed a reasonable excuse, the officer would have been entitled to search the vehicle in accordance with SSA.