Introduction Flashcards
What is the purpose of the Search and Surveillance Act? And what section can this purpose be found?
The overarching purpose is to ensure compliance with human rights and to maintain currency with modern technologies. Section 5.
How is the Search and Surveillance Act to be complied with?
By conducting all activities within lawful authority, conducting risk assessments, and providing appropriate announcements.
When you have formed a reasonable belief or suspicion you must clearly describe your grounds for holding this belief or suspicion.
Where do you record your reasonable grounds and what is this record called?
You must record your grounds for using a search power in your notebook. This is called your decision log.
Be aware that you may be required to report on your decision to use a power and your grounds for using it or justify this before a court or formal proceedings.
There are three ways to carry out a lawful search, these are:
(1) with a Search Warrant
(2) under a Warrantless Search-Power
(3) with the person’s Consent
Reasonable Search
A reasonable search is one that complies with what section of the Bill Of Rights Act?
and
Considers which 3 factors:
Section 21 of the BORA
and
- the nature of the search
- how intrusive the search is
- where and when the search takes place
We must follow the Warrant Preference Rule. If at all possible to do so then you should apply for a search warrant even if a warrantless power is available.
But if you have RTGB that applying for a search warrant is not practicable then your RGTB must be recorded in your decision log.
When you are thinking about whether it is practicable, what questions should you consider? (there are five)…
- Time. Is there time to gain approval for a search warrant?
- Sec. 117. Can the scene be secured under sec 117?
- Resourcing. Are reasonable resources (including staff) available to minimise risk and ensure safety?
- CADD. Is evidential material at risk?
- Location of the search and who may be there?
Give 3 reasons why a search warrant is preferred over warrantless powers, and a search by consent:
- Ensures Judicial Oversight
- Provides greater protection for Police and the public
- Requires recording and reporting of results
Consent search, name the sections of the S&SA that relate to this?
91-96
You cannot randomly conduct a consent search to just, “find what you can find” (this is a “fishing trip” as per section 2 of the Fish n Chip Act 1985 which has been repealed).
Therefore, you must satisfy one or more of the 4 situations that justify a consent search. What are they?
also
What section of the S&SA relates to this?
Under sec. 92 of the Search and Surveillance Act 2012 at least one of the following situations must exist to justify a consent search:
- to prevent the commission of an offence
- to investigate whether an offence has been committed
- to prevent injury or harm
- to protect life or property
Memory aid for consent: to PIP & protect
If a search warrant or search power is not available to you, and you can justify a consent search in your decision log with RGTB that at least one of the 4 qualitying situations for a consent search exist, then what 2 things must you advise the person consenting to the search?
- Reason. The reason for the proposed search; and
- Choice. They may consent or refuse to consent to the search. Or, withdraw consent at any time.
Do you have to report a consent search?
No.
But you are still expected to follow good practice and record your grounds and make good notes about the search.
What is the minimum age that a person can consent to a search of a place or vehicle?
and
What is the exception?
A person 14 years and above can consent to a search of a place or vehicle.
The exception is when a person under 14 is found driving and no passenger 14 years or over 14 is present to give consent to a search of that vehicle. In this case, a person under 14 can give consent.
What section of the Search and Surveillance Act provides examples of intangeble things?
and
What are some examples?
Section 97.
- email address
- informaiton on an internet data storage facility
What are some useful examples of CADD?
Conceal - hiding a point bag within the crevace of a giant fold of belly fat
Alter - taking two wheels off a car to make it look more like a motorbike
Damage -giving a dog laser hair removal to prevent it being recognised by its owner
Destroy - using the last wish from a magic lamp
What are the obligations under section 131 of the Search and Surveillance Act 2012:
(1) Prior to initial entry of a place, vehicle or thing to be searched?
(2) Before or upon intitial entry?
(3) After the search is complete, if the occupier was not present?
- Prior to entry:
(a) Announce intention to enter and search under a statutory power;
(b) Identify yourself, by name or unique identifyer - Before or upon initial entry:
(a) Provide a copy of the search warrant
or
(b) Give the name of the enactment and the reason for the search
(3) If the occupier is not present then leave a copy of the warrant in a prominent place along with a notice specifying such things as what was taken, who took it and who to contact…(the notice must be given to the occupier within 7 days if it was not practical to leave it after the search).
What power does section 131 provide?
(Sub-section 3)
The person exercising the search power may use reasonable force to enter if:
(a) sub-section 2 applies - The occupier is not present
(b) following a request, the person present refuses entry or does not allow entry within a reasonable time.
When is it not a requirement to comply with the obligations of section 131(1)
- When the occupier is not present
- or if compliance with 131(1)(a) would endanger life, prejudice the successful exercise of the entry and search power, or prejudice ongoing investigations.
Does s131 require you to provide notice when exercising a warrentless search?
and
Does it have to be a written notice?
Yes. You have to provide notice by stateting:
(1) the name of the enactment under which the search is taking place, and
(2) the reason for the search.
No. It doesn’t have to be in writing. But a POL1275 is a written notice that is available for this purpose.
Each search power authorises you to use additional powers when searching a place, vehicle or other thing with or without a warrant.
What section provides these addional powers?
Section 110
If your search is impeeded by a person or you have RGTB that they would obstruct or hinder your ability to search, you could turn to some powers in the SSA2012 to deal with this.
What section and powers are available in this situation?
Section 116 gives you the power to:
- Exclude that person from the place, vehicle or other thing being searched, or any area in or on the place or vehicle
- Give reasonable dirrection to that person.
For example, a young female at the address is acting like a little maggot. She refuses to remain in the living room while you search the rest of the house. She gets physically pushy as she asserts that you do not have the authority to tell her what to do.
You can tell her to leave the premises. If she refuses you can exclude her from the place by helping her into your patrol car and taking her some place nice and far away.
Section 118 affords you what powers?
(there are 2)
- You can detain people for the purposes of determining whether there is any connection:
- between them and a person at the place, or
- between them and the object of the search
- You can use reasonable force for effecting or continuing any deteintion.
Can you search people found when searching places and vehicles?
Yes. Section 119 allows you to search a person if you have:
- RGTB that they are in possession of evidential material that is the object of the search
- RGTS that they are in possession of a dangerous item that posses a threat to safety and you believe that immediate action is needed to address that threat.
What section gives you a power of entry in the case of fresh pursuit?
What additonal powers does this give you?
and what are the prerequisits for its use?
Section 120 deals with fresh pursuit.
Besides the power of entry, you can:
- Apprehend the person
- Search the person or vehicle
Prerequisits:
- Must be in fresh pursuit
- RGTB the relevant EM is still on the person
What are the two warrantless search powers available for searching an arrested or detained person?
Section 85 rub down - to ensure nothing is on them that may:
- harm others, or
- facillitate excape
Section 88 Where there is RGTB that the person is in possession of anything that:
- May be used to cause harm
- May facillitate escape
- May be EM in respect of the arrested offence.
