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

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1

What is the definition of Evidential Material?

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.

2

What is the definition of reasonable grounds to believe?

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

3

What is the definition of reasonable grounds to suspect?

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

4

What is the definition of unlawfully at large?

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.

5

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

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 This is because consent can be withdrawn at any time.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.

6

What is Section 131, Search and Surveillance Act 2012?

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.

7

What is Section 125, Search and Surveillance Act 2012?

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.

8

What is Section 169, Search and Surveillance Act 2012?

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

9

What is Section 110, Search and Surveillance Act 2012?

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

10

What is Section 113, Search and Surveillance Act 2012?

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.

11

What is Section 116, Search and Surveillance Act 2012?

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.

12

What is Section 118, Search and Surveillance Act 2012?

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.

13

What is Section 119, Search and Surveillance Act 2012?

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.

14

What is Section 14, Search and Surveillance Act 2012?

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.

15

What is Section 7, Search and Surveillance Act 2012?

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.

16

What is Section 8, Search and Surveillance Act 2012?

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.

17

What is Section 9, Search and Surveillance Act 2012?

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.

18

What is Section 10, Search and Surveillance Act 2012?

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.

19

What is Section 121, Search and Surveillance Act 2012?

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.

20

What is Section 128, Search and Surveillance Act 2012?

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.

21

What is Section 129, Search and Surveillance Act 2012?

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).

22

What is Section 18, Search and Surveillance Act 2012?

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

23

What is Section 27, Search and Surveillance Act 2012?

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.

24

What is Section 28, Search and Surveillance Act 2012?

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

25

What is Section 29, Search and Surveillance Act 2012?

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

26

What is Section 15, Search and Surveillance Act 2012?

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.

27

What is Section 16, Search and Surveillance Act 2012?

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.

28

What is Section 17, Search and Surveillance Act 2012?

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.

29

What is Section 83, Search and Surveillance Act 2012?

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

30

What is Section 84, Search and Surveillance Act 2012?

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