S&S

Question 1

RGTS

Answer 1

Reasonable grounds to suspect (RGTS) means having a sound basis for suspecting that a situation or circumstance exists.

Example:
You enter a house or vehicle because you suspect an offence has been, is being, or is about to be committed.

Question 2

RGTB

Answer 2

Reasonable grounds to believe (RGTB) means having a sound basis for believing that a situation or circumstance exists

Example:
You can enter and search a house or vehicle, or search a person because you believe that a search will find the evidential material you are looking for.

Question 3

Lawful and reasonable

Answer 3

Under the S&S Act 2012 a “lawful” search is a search that is conducted:
*with a search warrant, or
*under a warrantless search power, or
*with the person’s consent.

Under the S&S Act 2012 a “reasonable” search is a search that:
**complies with section 21 of the NZ BOR Act and considers factors such as.
*the nature of the search
*how intrusive the search is
*where and when the search takes place

Question 4

Search options

Answer 4

If it is not practicable in the circumstances to apply for a search warrant, there may be two other options available to you.
*Search using a warrantless power - if a warrantless power is available to you, then you have a power of search without a warrant.
*Search by consent - if you do not have grounds to apply for a search warrant or to use a warrantless power, then you may request a search by consent. A consent search is not the most desirable action as there are additional rules that apply to consent searches and these rules must be followed if the search is to be lawful.

Question 4

Search options

Answer 4

If it is not practicable in the circumstances to apply for a search warrant, there may be two other options available to you.
*Search using a warrantless power - if a warrantless power is available to you, then you have a power of search without a warrant.
*Search by consent - if you do not have grounds to apply for a search warrant or to use a warrantless power, then you may request a search by consent. A consent search is not the most desirable action as there are additional rules that apply to consent searches and these rules must be followed if the search is to be lawful.

Question 5

Using a search warrant:
REP

Answer 5

*Ensures judicial oversight
*Provides greater protection for Police and the public
*Requires recording and reporting of results

Question 6

Evidential material

Answer 6

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

Question 7

Tangible

Answer 7

According to the Oxford Dictionary, tangible means something that may be touched

Question 8

Intangible

Answer 8

According to the to Oxford Dictionary, intangible means ‘usable to be touched not having physical presence’.

Question 9

CADD (Examples)

Answer 9

Concealed - by burying or hiding items in another place or removing items.

Altered - By changing or removing serial numbers from stolen property in an attempt to disguise it.

Damaged - By cutting out the firewall of a stolen car to remove an identifying feature

Destroyed - By consuming food, alcohol, or drugs, burning clothing.

Question 10

What if a person refuses entry

Answer 10

When you are executing a search warrant or a warrantless power of search of a place, vehicle, or other thing you may “use reasonable force” to enter if the person refuses entry or does not allow entry within a reasonable time following a request.

Question 11

What if there is no one at the place where the search is to be conducted

Answer 11

*You may use reasonable force to enter the place, vehicle or other thing to be searched if you have reasonable grounds that no one is lawfully present.
*Leave a copy of the search warrant or a POL 1275 search notice to the occupier
*An inventory of any material seized.

This must be as soon as possible after the search and must be provided within 7 days of completion of the search.

Question 12

Section 110 S&2 2012 authorises you to:
cuc stabbers

Answer 12

*Copy and document, or part of a document, that may be lawfully seized.
*Use reasonable force in respect in respect of any property for the purpose of carrying out the search and lawful seizure.
*Copy intangible material e.g. computer data
*Search any item or items found in that place, vehicle or thing (if reasonable).
*Take photographs, sound and video recordings and drawings.
*Access a computer system or other data storage device.
*Bring and use any equipment found on the place, vehicle or other thing.
*Bring and use a trained law enforcement dog and its handler
*Enter and search the place, vehicle or other thing, that you are authorised to enter and search.
*Request assistance with entry and search
*Seize anything that is the subject of the search or anything else that may be lawfully seized.

Question 13

Section 116 S&S 2012

Answer 13

You can secure a place, vehicle or other thing to be searched and exclude any person from there.

Question 14

Section 118 S&S 2012
DD

Answer 14

*Detain people when searching places and vehicles for the purposes of,
*Determining whether there is any connection between a person at the place or in or on the vehicle and the object of the search.

Question 15

Section 119 S&S 2012

Answer 15

*You can search people found when searching places and vehicles if you have:
*RGTB that evidential material that is the object of the search is on that person or
*RGTS that 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.

Question 16

Section 120 S&S 2012

Answer 16

*If you are in fresh pursuit, and with:
*RGTB that relevant evidential material is still on the person
*You have the power to enter any place to apprehend the person and
*Search the person or vehicle.

Question 17

AWOCA

Answer 17

Ask
Why
Options
Confirm
Action

Question 18

Detained person tries to leave / person arrives at search place.
DESS

Answer 18

you can use reasonable force to detain the person to be serached (S118(4)).
if someone else arrives at the place or vehicle and starts talking to the person you have detained under S118 depending on the circumstances you may:
*detain that person to determine if there is an connection between them adn the object of your search (S118(1)).
*exclude that person from the search scene if you have RGTB the person will obstruct or hinder your powers (S116(1)(b))
*search that person if you have RGTB that they may have evidential material on them (S119(1)).
*search that person if you have RGTS that they may have a dangerous item that poses a threat to safety and you believe you need to act immediately to address that threat (S119(2)(a) & (b)).

Question 19

Fresh pursuit: Example

Answer 19

if the person being pursued than drives onto a driveway and enters a house you my enter the house if you are in fresh pursuit of that person or vehicle. You must have RGTB the evidential material you are searching for is still in the vehicle or on that person (S120(1)(b)).

Question 20

Priviledged material
JIMM CL

Answer 20

Recongnised privileged material includes material gained through communication with:
*journalists
*informers (informants)
*ministers of religion
*medical practitioners
*clinical psychologists
*legal advisers

Question 21

Risk assessment scenarios. #1
You are going to apply for a search warrant for a gang member’s house to look for a weapon used in an assault.

What if you know there are likely to be children in the house?

Answer 21

Scenario 1
The children should be considered as “vulnerable people”. You will need to plan to keep them safe and minimise harm.

Options include searching the house during school hours when they are less likely to be home or allocating someone to search for the children and remove them to a safe place.

Question 22

Risk assessment scenarios. #2
What if you suspect the gang member has several weapons in the house?

Answer 22

Scenario 2
Consider the presence of weapons and the likelihood of them being used when undertaking you Planned Action Risk Assessment and CARD prompt and TENR risk assessment processes.

For example, you may want to consider involving the AOS. Your key consideration is the safety of Police and any people nearby.

Question 23

Special power - S117

Answer 23

Remeber that S117(1) authorises the securing of the address until a search warrant is obtained. It is not a search power.

The powers conferred by S117(1) may be exercised until the first of the following occurs:
(a) the expiry of 6 hours from when the power is first excerised:
(b) the warrant is available for execution at that place or vehicle or in respect of that other thing:
(c) the application for a search warrant is refused.

Question 24

Who can issue a search warrant?
JR.DC

Answer 24

An Issuing Officer may be a:
*District Court Judge
*High Court Judge

Or any person authorised by the Attorney Gneral such as a:
*Justice of the Peace
*Community Magistrate
*Registrar
*Deputy Registrar

Question 25

When the search warrant application is refused
RCR
MCI

Answer 25

When the Issuing Officer does not sign the search warrant application you should:
*record the Issuing Officers reasons for refusing to sign
*consider the issues raised and if possible re-draft the application, ensuring you have addressed these issues.
*re-submit the application to the same Issuing Officer.

If the issues cannot be addressed:
*make further enquiries to support (or otherwise) the application.
*consider whether to continue your investigation without conducting a search.
*if the reasons for not signing the search warrant do not seem justified, submit a report to Legal Service for direction.

Question 26

How long is a search warrant valid?

Answer 26

No more than 14 days from the date of issue, as specified by the Issuing Officer, or
No more than 30 days from the date of issue, as specified by the Issuing Officer, if you have justified why this is necessary and the Issuing Officer is satisfied.

Question 27

Items in plain view (S123)

Answer 27

You may seize any item you find in plain view when you are searching or that you observe if:
*you have RGTB that you could have seized the item under a search warrant or other search power.

Question 28

Items in plain view (S123) Examples

Answer 28

1. You are searching for a person under S8 and look inside a wardrobe for that person. You find a bag of cannabis. As the bag is in “plain view” you may seize it under S123.
2. You attend a family violence incident and while in the lounge talking with the couple involved, you see a distinctive item of clothing which you have RGTB was stolen in a recent burglary. As you are lawfully at the address and the clothing was in “plain view” you can seize it under S123.
3. You are searching a house for methamphretamine and find several new iPhone in plain view. You query the serial numbers of the iPhones which reveals that they are stolen. You can seize the iPhones if you have RGTB that the items could have been seized under a search warrant or other search power.

Question 29

Duration of a Production Order

Answer 29

A production order is in force for the period specified in the order (not exceeding 30 days after the date on which the order is made). (S76)

Question 30

Production Order. How to apply?

Answer 30

You must apply for a production order in writing along with a personal appearance before, or communication orally with, the issuing officer unless it is impracticable to do so in the circumstances.

In this situation you may apply to:
*make an application orally e.g by telephone or personal appearance, or
*have your application considered without a personal appearance or oral communication e.g. by email.

Question 31

Visual surveillance device
EMEOE
AIDE

Answer 31

a) means any electronic, mechanical, electromagnetic, optical, electio-optical instrument, apparatus, equipment, or other device that is used to observe, or to observe and record, a private activity, but
b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.

Question 32

S46 - Activities for which surveiullance device warrant required

Answer 32

c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.

Question 33

Private lands and goods

Answer 33

Places an individual ‘ought reasonably to expect’ are private.

Those places include land (in private ownership) and any private premises on that land, and ‘goods’.

Goods generally mean chattels and include vehicles and other tangible belongings.

Surveillance is unlawful if it involves a trespass, which is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by surveillance device warrant.

(Expections apply in situations of emergency or urgency)

Question 34

Private premises
DMO

Answer 34

Private premises means a private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises.

Question 35

Private activity

Answer 35

The definition of private activity acknowledges fundamental human rights. A participant in an activity can reasonably expect the activity is private if it is carried out in private premises.

But - ‘ought reasonably to expect’ must be an objective test i.e what any person would expect.

Where private activities occur is of key importance.

Question 36

Private communication

Answer 36

a) means a communication (whether in oral or written form, or in the form of telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confirmed to the parties to the communication; but

b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so.

Note that any person can reasonably expect their communication to be private when it occurs in circumstances where they have the right to expect it will not be intercepted or recorded.

Where reasonable expectations of privacy are interfered with or intruded upon by the use of an interception device, a surveillance device warrant is required.

Question 37

Curtilage

Answer 37

Means the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but exceeding any associated ‘open fields beyond’.

It defined the boundary within which a homeowner can have a reasonable expectation of privacy and where ‘common daily activities’ have place.

Activities that do not require a warrant cover the use of a visual surveillance device within the curtilage of private property but usage is restricted to time limitation.

Explanation:
The curtilage of a dwelling is the ground between the fence, garden, hedge, or mowed grass border and the dwelling. It can be taken to mean a garden, yard or field, or other piece of ground or building near to or belonging to a house.

The curtilage of a dwelling does not necessarily equate with the boundary of the property, although in the vast majority of cases, the boundary and the curtilage will coincide exactly. Thus, the curtilage of a suburban house is likely to be clearly defined by a fenceline whereas on a farm, the house and curtilage will form a small part of the whole property.

Question 38

Private lands and goods

Answer 38

*Where surveillance with a surveillance device is concerned, the Search and Surveillance Act restricts surveillance activity in places an individual ‘ought reasonably to expect’ are private.

*Those places include land (in private ownership) and any private premises on that land, and ‘goods’.

*Goods generally mean chattels and include vehicles and other tangible belongings.

*Surveillance is unlawful if it involves a trespass, which is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by surveillance device warrant.

*(Exceptions apply in situations of emergency or urgency)

Question 39

Interception device

Answer 39

a) means any electronic, mechanical, electromagnetic, optical, electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to interce[t or record a private communication; but
b) does not include a hearing aid or a similar device used to correct the subnormal hearing of the user to no better than normal hearing.

Question 40

Voluntary oral communication

Answer 40

A voluntary oral communication is a communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (S47)

There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.

Example: An offender admits to his role in a drug ring and agrees to allow police to record his telephone conversation with the ringleader to gather evidential material.

Example:
A CHIS agrees to wear a device that will record his telephone coversation with a gang leader who is under investigation for a series of armed robberies.

Question 41

Tracking device

Answer 41

a) means a device that, may be used to help ascertain, by electronic or other means, either or both of the following:
i) the location of a thing or a person;
ii) whether a thing has been opened, tampered with, or in some other way dealt with; but
b) does not include a vehicle or other means of transport, such as a boat or helicopter.

Question 42

Situations of emergency or urgency

Answer 42

S48 acknowledges that in certain situations, police may need to act immediately without warrant to use any 1 or more surveillance devices.

Two key ingredients exist for any situation to be recognised as one of emergency or urgency.

Ingredient - entitles to apply
Means - you would be entitled to make an application for a surveillance device warrant as the situation is one of serious criminal activity.

Ingredient - impracticable in the circumstances
Means - you need to use a device urgently as it is not immediately practical to obtain a surveillance device warrant.

Question 43

Period of surveillance device warrant is limited

Answer 43

A surveillance device warrant may be issued for a period of no more than 60 days after the date in which the warrant is issued, and is in force for that period.