7. Search And Surveillance Act 2012

Question 1

Define “Arms” under the Search and Surveillance Act 2012.

Answer 1

Any firearm, airgun, pistol, restricted weapon, imitation firearm, explosive or ammunition.

Question 2

Define “curtilage” under the Search and Surveillance Act 2012.

Answer 2

The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated open fields beyond.

It defines the boundary within which the owner of a building can have a reasonable expectation of privacy and where common daily activities take place.

Question 3

Define “evidential material” under the Search and Surveillance Act 2012.

Answer 3

Evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence.

Question 4

Define “private premises” under the Search and Surveillance Act 2012.

Answer 4

Private dwellinghouse, Marae, and other premises not defined under “non-private premises”.

Question 5

Define “non-private premises” under the Search and Surveillance Act 2012.

Answer 5

Premises or part of a premises to which the public are frequently permitted to have access.

I.e. parts of a hospital, bus station, airport etc.

Question 6

Define “private activity” under the Search and Surveillance Act 2012.

Answer 6

In the circumstances, any one or more of the participants in the activity reasonably expect not to be observed or recorded by other external parties

Question 7

Define “surveillance device” under the Search and Surveillance Act 2012.

Answer 7

Means:
a) an interception device
b) a tracking device
c) a visual surveillance device

Question 8

Define “interception device” under the Search and Surveillance Act 2012.

Answer 8

A device capable of interception or recording private communications.

Question 9

Define “tracking device” under the Search and Surveillance Act 2012.

Answer 9

A device that may help ascertain:

a) the location of a person/thing

b) whether something has been opened/tampered with.

Question 10

Define “visual surveillance device” under the Search and Surveillance Act 2012.

Answer 10

A device that enables private activities to be observed, or observed and recorded.

Question 11

Define “trespass surveillance” under the Search and Surveillance Act 2012.

Answer 11

Surveillance that involves trespassing to land or goods.

Question 12

Explain the warrant preference rule.

Answer 12

A s6 search warrant should preferably be obtained for every search - R v Laugalis.

Warrantless power to be invoked only in urgent situations (flee of K9, CADD evidence, risk to life etc.)

Order:
Search warrant - s6
Oral warrant - s100
Warantless search
Consent search

Question 13

Explain what thresholds are required to obtain apply for a s6 search warrant.

Answer 13

RGTS an offence punishable by imprisonment has/is/will be committed; and

RGTB the Search will uncover evidential material in respect of the offence in that place/vehicle/thing.

Question 14

Define “Reasonable Grounds to Suspect” under the Search and Surveillance Act 2012.

Answer 14

Requires the enforcement officer to hold a suspicion that the state of affairs is “inherently likely”.

Question 15

Define “Reasonable Grounds to Believe” under the Search and Surveillance Act 2012.

Answer 15

Requires an element of actuality. The officer must believe that the state of affairs is a matter of fact.

Question 16

What is s7 under the Search and Surveillance Act 2012.

What grounds are required to invoke it?

Answer 16

Entry to arrest person U/L at large.

• RGTS person U/L at large, AND
• RGTB they are in that place/vehicle

Question 17

What is s8 under the Search and Surveillance Act 2012.

What grounds are required to invoke it?

Answer 17

Entry to avoid loss of EM/offender.

• RGTS person has committed an IO, AND
• RGTB they are in that place/vehicle, AND
• RGTB if entry is delayed, person will leave to avoid K9 AND/OR EM will be CADD.

Question 18

What is s9 under the Search and Surveillance Act 2012.

What grounds are required to invoke it?

Answer 18

Stop vehicle without warrant for K9

You may stop a vehicle if:
- RGTS person is U/L at large OR has committed an IO, AND
- RGTB in that vehicle

Question 19

What is s10 under the Search and Surveillance Act 2012.

What grounds are required to invoke it?

Answer 19

Powers after vehicle stopped under s9.

You may:
- REQUIRE details from person you suspect IO or U/L at large.
- SEARCH vehicle for suspect.
- SEARCH vehicle for EM if suspect K9’d or fled.

Must RAIN the driver. [s131]

Question 20

What is s15 under the Search and Surveillance Act 2012.

What grounds are required to invoke it?

Answer 20

(Serious Offences)
Entry/search to avoid loss of EM.

-RGTS serious offence (14+ years) has/is/about to be committed, AND
- RGTB EM is in that place AND if Entry is delayed it will be CADD

Question 21

What is s16 under the Search and Surveillance Act 2012.

What grounds are required to invoke it?

Answer 21

(Serious Offences)
Search person in P/P for EM

• RGTB person in a P/P is in possession of EM relating to a serious offence (14+ years)

Question 22

What is s17 under the Search and Surveillance Act 2012.

What grounds are required to invoke it?

Answer 22

(Serious Offences)
Enter/Search vehicle in P/P for EM

• RGTB EM relating to a serious offence (14+ years) is in/on a vehicle in a P/P

Question 23

What is s18 under the Search and Surveillance Act 2012.

What grounds are required to invoke it?

Answer 23

Warantless search associated with Arms.

RGTS:
- Breach of the Arms Act 1983, or
- Physical/mental condition, incapable of proper control over them, or may kill.
- PO/PSO is in effect, or there are grounds to make an application.
- Cat 3/4 offence, or offence against the Arms Act 1983 has/is/will happen.
- EM in relation to cat 3/4 offence, or offence against the Arms Act 1983.

Can enter, Search any person/place, seize Arms and firearms licence.

Question 24

What is s20 under the Search and Surveillance Act 2012.

What grounds are required to invoke it?

Answer 24

Search of place/vehicle in relation to MODA 1975

• RGTB it is not practical to get a warrant, AND in/on veh/place there is a controlled drug described in:
  
  • Schedule 1 MODA
  • Part 1 of schedule 2 MODA
  • Part 1 of schedule 3 MODA or
  • precursor substance Part 3 of
    Schedule 4 in MODA
• RGTS offence against MODA has/is/about to be committed in that place/vehicle, AND
• RGTB if entry/search is delayed, EM will be CADD.

Question 25

What is s21 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 25

Warrantless search of people (when s20 already invoked) When invoking s20, you may search any person found in/on that place/vehicle. Includes people who arrive at location after search commencement.

Question 26

What is s22 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 26

Warrantless search of person in P/P in relation to MODA 1975. - RGTB person is in possession of a controlled drug specified in: - Schedule 1 MODA - Part 1, Schedule 2 MODA - Part 1, Schedule 3 MODA, or - Precursor substance Part 3 Schedule 4 MODA. - RGTS offence against MODA has/is/about to be committed.

Question 27

What is s27 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 27

Warrantless search of person in P/P for offensive weapon - RGTS committing an offence against 202A(4)(a) Crimes Act 1961

Question 28

What is s28 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 28

Search vehicle in P/P for offensive weapons. - RGTS a person is travelling in a vehicle committing an offence against s202A(4)(a) Crimes Act 1961, AND - RGTS vehicle contains a knife, offensive weapon, or disabling substance.

Question 29

What is s83 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 29

Entry/search place after K9. If you have arrested someone, AND -RGTB EM relating to the offence is in that place, AND - RGTB EM will be CADD if delayed to get a warrant.

Question 30

What is s84 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 30

Entry/search vehicle after K9. If you have arrested someone, AND - RGTB EM relating to the offence is in the vehicle.

Question 31

What is s112 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 31

Items of uncertain status. - If you are exercising a search power AND - Unsure whether you can lawfully seize an item AND - it is not practicable to determine its status there You may take it for analysis to determine whether it may be seized.

Question 32

What is s117 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 32

Power to secure place/vehicle - If SW is about to be or has been made you may enter and secure the place/vehicle and items within, IF - RGTB EM will be CADD before decision on SW is made. Expires: - 6 hours after first invoked; or - Warrant is made available; or - Warrant is refused Whichever occurs first Note: when securing a place under s117, you CAN seize items in plain view (s123).

Question 33

What is s121 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 33

Stopping vehicle with/without Warrant. If you are satisfied there are grounds to search the vehicle (SW or warrantless power), then you may stop it.

Question 34

What is s122 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 34

Moving vehicle for search or safekeeping. If you find/stop a vehicle, you may move it to another place if: - you have lawful authority to search the vehicle, but is impractical to do so at that place, OR - RGTB it is necessary to move the vehicle for safe keeping (only officer with power of arrest can invoke this clause).

Question 35

What is s123 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 35

Seizure of items in plain view. - If you are lawfully on any vehicle/property, OR exercising a search power on the vehicle/property AND - RGTB you could seize an item under any power Then you may seize that item.

Question 36

What is s45 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 36

Restrictions on some trespass Surveillance and use of interception devices. You can not undertake trespass Surveillance OR use an interception device UNLESS it is used to obtain EM for: - 7+ year offences, OR - Specific Arms Act 1983 offences (s44, s45, s50, s51, s54, s55). *Note: Arms Act offences generally relate to unlawful possession of various Arms.

Question 37

What is s46 under the Search and Surveillance Act 2012.

Answer 37

Activities for which a Surveillance warrant is required. Except for s47 and s48, a Surveillance device warrant is required for: a) interception device used to intercept private communications b) use of a tracking device (unless it's used for seeing if something is tampered with, and the device does not require trespasisng). c) observation of private activity in private premises, and any recording of such activity by visual surveillance device. d) use of Surveillance device which requires trespass to land or goods. e) observation of private activity in curtilage of private premises, and any recording of that observation, if any part of that observation/recording is by means of a visual surveillance device, and the duration of the observation for the purpose of a SINGLE INVESTIGATION, or CONNECTED SERIES OF INVESTIGATION exceeds: (i) 3 hours in any 24-hour period, or (ii) 8 hours in total.

Question 38

What is s47 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 38

Some activities that do not require a warrant under the surveillance sub-part. - Recording what he/she hears whilst lawfully on property (as long as they can see/hear things without the use of a surveillance device) - Covert audio recording of conversation between two people with the consent of at least one (if one is an enforcement officer, must be careful not to actively elicit required information from other party - may be inadmissible).

Question 39

What is s48 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 39

Surveillance device warrant not required in times of urgency/emergency. For a period not exceeding 48 hours. Relevant for situations where could apply for a warrant, but is impractical in the circumstances. Must have RGTS: - 14+ year offence has/is/about to be committed, and RGTB surveillance device would get EM, OR - Emergency [s14(2)] and RGTB surveillance device needed to avert/stop continuance, OR - Firearms offence [s18(2] and RGTB surveillance device required to facilitate seizure, OR - Cat 3/4 offence against Arms Act 1983 has/is/about to be committed and RGTB surveillance device needed to obtain EM, OR - Offence against MODA has/is/about to be committed, and RGTB surveillance device needed to obtain EM, OR - RGTB person in possession of drug delivery [s81(2)] and RGTB surveillance device is required to facilitate seizure.

Question 40

If grounds exist to invoke s48 of the Search and Surveillance Act 2012, what does it allow you to do?

Answer 40

3(a) enter any premises/area/vehicle 3(b) break open/interfere with any vehicle or thing 3(c) temporarily move vehicle or thing and then return it.

Question 41

Under s46(e) of the Search and Surveillance Act 2012, what can you do without a Surveillance Device Warrant?

Answer 41

1) Observe private activity WITHOUT the use of a Surveillance device from public areas. 2) observe private activity in the curtilage of a private premises by means of a Surveillance device; for a single investigation, or connected series of investigations for a period of observation that does not exceed: - 3 hours in any 24-hour period, or - 8 hours in total.

Question 42

You have been given reliable information a gang member is conducting target practice on his property - he does not have a firearms licence. Could you go onto neighboring property without their consent to observe the behavior? Quote relevant Search and Surveillance Act legislation.

Answer 42

Yes because you are gathering EM in relation to an offence against one of the applicable sections of of the Arms Act 1983. S45(1) can not undertake trespass Surveillance except to get EM in relation to: (a) 7+ year offences, OR (b) s44, s45, s50, s51, s54 and s55 of the Arms Act 1983.

Question 43

What are Police's obligations when invoking a warrantless power under the Search and Surveillance Act 2012?

Answer 43

s125 - RELATES TO PERSON SEARCH ONLY - Must provide RAN and ID if not in uniform s131 - RELATES TO SEARCH OF PLACE/VEHICLE ONLY - Must provide RAIN and ID if not in uniform. s169 - Warantless search notification to Commissioner of Police as soon as practical.

Question 44

What is s88 under the Search and Surveillance Act 2012. What grounds are required to invoke it?

Answer 44

Warantless Search for EM on person arrested or detained. If you have arrested/detained a person and have RGTB they are carrying anything that may: a) harm any person, OR b) facilitate their escape, OR c) have EM relating to the offence they were arrested for.

Question 45

In layman's terms, what does s46 of the Search and Surveillance Act 2012 outline?

Answer 45

When a surveillance device warrant (SDW) is required. To: a) intercept private communication b) track a person/vehicle/thing c) observe/record private activity in private premises d) a surveillance device involving trespass to land or goods e) observe/record private activity in curtilage of private property, using a visual surveillance device (time limits apply - 3hrs in a 24hr period, or 8hrs in total for any one or connected investigation).