Search and Surveillance 015 (019) Flashcards Preview

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Flashcards in Search and Surveillance 015 (019) Deck (129)
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1

Reasonable Grounds to Suspect (RGTS)

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 there.

2

Reasonable Grounds to Believe (RGTB)

Reasonable Grounds to Believe (RGTB) means having a sound basis for believing that a situation or circumstance exists.

Example:You 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.

3

When you have formed a belief or suspicion you must be able to clearly describe your reasons, your reasonable grounds for holding the belief or suspicion.
You Must? And you may?

You must:
• record your reasonable grounds for using a search power in your notebook. This is 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
• justify your use of a power in court or in other formal proceedings.

4

One morning you receive information from a very reliable source that John has just purchased some methamphetamine. Your source tells you that John has now left his home to visit a house in town where he may attempt to sell the methamphetamine.
To undertake a warrantless search of a person for a controlled drug (Search and Surveillance Act section 22) you must:

• have RGTS that an offence against the Misuse of Drugs Act 1975 has been, or is being or is about to be committed, in respect of that controlled drug or precursor substance and
• have RGTB that a person is in possession of a controlled drug or precursor substance

In this example, you may search John as you have RGTS that he has committed an offence and RGTB that if you search him you will find the drugs.

5

What is the Purpose of the Act under Section 5?

To facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values by:

- Modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies

- Ensuring investigative tools are effective and adequate for law enforcement needs.

- Providing rules that recognise the importance of the rights and entitlements affirmed in other enactments

6

How do you comply with the S&S Act?
To meet its objectives and obligations when carrying out entries, searches, inspections, productions, examinations, seizures, road blocks and stopping vehicles, Police will:

• satisfy requirements detailed in the Act (e.g. notice and inventory requirements after search or seizure)

• provide appropriate announcements and identification in the exercise of those powers

• only seize what Police are lawfully entitled to seize

• conduct risk assessments when planning the exercise of those powers and take action to mitigate risks to protect the safety of the public and employees carrying out the Act’s powers

• ensure it has a lawful authority to conduct such activities and exercise any other incidental power in relation to those activities, including the use of force

7

Lawful and Reasonable
What is a Lawful search?

Under the Search and Surveillance Act a lawful search is a search that is conducted:
• with a search warrant, or
• under a warrant-less search power, or
• with the person’s consent

8

Lawful and Reasonable
What is a Reasonable search?

Under the Search and Surveillance Act a reasonable search is a search that:

• complies with section 21 of the New Zealand Bill of Rights Act ( right to be secure against unreasonable search or seizure) and considers factors such as:
• the nature of the search
• how intrusive the search is
• where and when the search takes place.

9

Practicable in the circumstances...
What must you consider when considering using a warrantless search power?

Before considering any search, you must think about whether applying for a search warrant is practicable in the circumstances.

If it is at all practicable to do so then you should apply for a search warrant even if a warrantless power is available.

A decision that applying for a search warrant is not practicable must be based on RGTB that it is not practicable to apply for a search warrant in the circumstances.

10

When you are thinking about what is practicable when deciding between a search warrant vs a warrantless power consider questions such as....?

• is there time to gain approval and apply for a search warrant
• can the scene be secured (under section 117)
• are reasonable resources (including number of staff) available to minimise risk and ensure safety
• is the evidential material at risk
• location of the search and who may be present

Remember to record this in your decision log...

11

Search Options....
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.

Remember:
If you do not have a search warrant, a warrantless power of search, or consent from the person, you cannot search.

12

Why use a search warrant? 
3 Reasons...

1. Ensures judicial oversight
2. Provides greater protection for Police and the public
3. Requires recording and reporting of results

To search by warrant requires participation in an end-to-end process. This process provides a series of checks and balances to protect both the Police and the public.

The process moves from initial approval to application, authorisation, execution and on to final reporting of search warrant outcomes. Organisational accountability is maintained by reporting to Parliament and if required to issuing officers.

13

Which Sections of the SASA cover consent searches? 

AND REMEMBER...

Sections 91- 96 of the Search and Surveillance Act cover consent searches.

Remember: If you have a search power available to you (either warrant or warrantless) then you should use that power. If you do not, then a search by consent may be available to you.

14

Before conducting a search by consent, you must determine that the search is for one of the following reasons...

• to prevent the commission of an offence
• to investigate whether an offence has been committed
• to protect life or property
• to prevent injury or harm

One or more of these situations must exist to justify any consent search (section 92). 

You cannot randomly conduct a consent search and must not use a consent search to go on a ‘fishing expedition’ to see what might be located.

15

Undertaking a consent search...

Before conducting a search by consent, you must advise the person from whom consent is sought:

• of the reason for the proposed search; and
• they may consent or refuse to consent to the search.

16

When can a person withdraw consent from a consent search of themselves, place, vehicle, or thing in their control?

A person who consents to a search of themselves, place, vehicle or thing in their control may withdraw their consent at any time. If this occurs, stop the search immediately, unless you can invoke a warrantless search power to continue the search.

Make sure you follow good practice requirements and record your grounds for requesting a consent search and make notes about the search in your notebook.

17

What are some other rules regarding consent searches? (Age)

A person under 14 years old is unable to consent to the search of a place, vehicle or other thing (unless they are found driving with no passenger of or over 14 years of age with authority to consent to the vehicle’s search).

Under the Search and Surveillance Act reporting requirements you do not have to report a consent search.

18

CADD - What is Evidential Material ?

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

19

Explain what Tangible and Intangible Mean?

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

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

Section 97 of the Search and Surveillance Act provides examples of intangible things, e.g. an email address or access information to an Internet data storage facility.

20

When deciding if you should use a warrantless power, amongst other things you should consider if there is a possibility that evidential material will be subject to CADD...

What does CADD stand for...?

• Concealed
• Altered
• Damaged
• Destroyed

You must be able to explain your RGTB that the evidential material you are searching for will be subject to CADD.

21

What are some examples of the different terms in CADD? 
Concealed... 
Altered...
Damaged...
Destroyed....

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

22

Obligation: Identification
Section 131 SASA 2012
Obligation
In the context of the Search and Surveillance Act, obligations are actions that must be carried out when certain search powers are used.
When searching a place, vehicle or other thing, you must comply with the obligations set out under section 131.

Your obligations cover identification, intention, reason and notice requirements whereby before initial entry you must:

• identify yourself by name or by unique identifier (QID)
• announce your intention to enter and search
• state the name of the Act
• give notice by providing a copy of the search warrant
• Remember that when you have detained a person for the purpose of a search you must caution them (Bill of Rights).

23

Obligation: Reason (+ also)
Section 131 SASA 2012
If you are using a warrantless search power you must state the reason for your search.
You must also:

• provide a copy of the search warrant or a warrantless search notice to occupier (POL 1275) and provide an inventory of items seized.
• report your use of certain powers – (section 169)
• consider privilege – (sections 136 – 147)

24

Obligation Notice.
Section 131 states that before or on initial entry into or onto the place, vehicle or other thing to be searched, you must give ‘notice’ to the occupier or person in charge. Giving notice is more than just telling or explaining to the person what you are about to do and why. You must:

• provide a copy of the search warrant

If using a warrantless power:
• state the name of the enactment under which the search is taking place and the reason for the search under that enactment (unless it is impracticable to do so in the circumstances)
• to comply with this obligation you can use form:
• POL 1275 search notice to occupier

25

Exceptions to Section 131 SASA 2012 identification and notice...

You are not required to comply with identification, intention and notice requirements on initial entry if you have RGTB that no one is present.

Also, you do not have to comply with the requirements on initial entry if you have RGTB this would:
• endanger any person’s safety
• prejudice the successful use of the entry and search power
• prejudice on-going investigations

26

What if a person refuses entry?

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.

27

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

You may use reasonable force to enter the place, vehicle or other thing to be searched if you have reasonable grounds to believe that no one is lawfully present.

If the occupier of the place or the person in charge of the vehicle is not there when you search, you must leave a copy of the search warrant or a POL 1275 search notice to occupier and an inventory of any material seized (POL268).

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

28

Power to search a place, vehicle or other thing... 
Each search power authorises you to use additional powers when searching a place, vehicle or other thing with or without a warrant.
Section 110 authorises you to...

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

29

What if your search is impeded?

If your search is impeded by any person or if you have RGTB that any person would obstruct or hinder your ability to search, then you could use section 116 to:

• exclude that person from the place, vehicle or other thing being searched, or any area in or on the place or vehicle
• give any reasonable direction to that person

30

Additional powers are available that you can use with your original search power –whether warrantless or warranted.

Explain Sections 116, 118, 119, and 120...

Section 116 - You can secure a place, vehicle or other thing to be searched and exclude any person from there.

Section 118 - You can 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.

Section 119 - 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
• if you have 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.

Section 120 - 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.