Search And Surveillance

Question 1

Section 110

Answer 1

Search powers:
- enter and search place, vehicle, thing

• request any person to assist with entry and search
• use reasonable force for purposes of searching
• seize anything that is subject of search ot that may be lawfully seized
• bring and/or use any equipment (incl electricity) for purposes of entry and search
• bring and use a dog and handler for search
• copy any document that may be lawfully seized
• access any computer system or data storage device if intangible material that is subject of search may be on it
• copy any intangible material that is subject of search
• take photographs, sound and video recordings and make drawings if RGTB they will be relevant to purposes of entry and search

Question 2

Section 116

Answer 2

Securing place, vehicle, thing to be searched

• In a manner and for duration that is reasonable
• secure the place, vehicle, thing
• exclude any person from the place, vehicle, thing OR give any person a reasonable direction IF RGTB that person will obstruct or hinder the exercise of any power
• must on request identify by name or QID, name act and reason for search and provide evidence of ID if not in uniform

Question 3

Section 117

Answer 3

Powers when application for SW pending

• application about to be made or is being assessed by IO
• RGTB that EM inside place, vehicle, thing will be CADD before SW granted/refused
• can enter and secure place, vehicle, thing which relates to SW
• can secure any item inside the place, vehicle, thing
• direct any person to assist with entry and securing
• powers can be exercised for 6 hours or until SW is approved and denied, which ever comes first
• must on request identify by name or QID and state act and reason for search and provide evidence of ID if not in uniform

Question 4

Section 118

Answer 4

Powers of detention

• any constable exercising any search power
• can detain any person found of who arrives at the place, vehicle or thing to determine if there is any connection between that person and the object of the search
• person can be detained fir any period that is reasonable but not for longer than the search
• detention commences when the person is directed to stay and ends when they are told they are free to leave
• reasonable force may be used to effect the detention

Question 5

Section 119

Answer 5

Power of search by person who has power of arrest

• can search any person found or arrives at place or vehicle IF RGTB they have EM
• can search any person found or arrives at place or vehicle IF RGTS they possess dangerous item and immediate action needed to address threat
• any item seized under (2) must he returned unless possession constitutes an offence, once search completed or person no longer a threat

Question 6

Section 120

Answer 6

Fresh pursuit

• person or vehicle leaves before search completed
• can arrest the person
• can enter any place or vehicle to arrest the person IF freshly following the person AND RGTB person has relevant EM

Question 7

Purpose of act

Answer 7

Section 5:
- facilitate monitoring of compliance with law and the investigation and prosecution of offences by:

• modernizing law of search, seizure and surveillance to reflect technological advances
• providing rules that recognize importance of rights and entitlements
• ensuring investigative tools are effective and adequate

Question 8

RGTS

Answer 8

Reasonable ground to suspect = sound basis for suspecting thay a situation or circumstance exists

Question 9

RGTB

Answer 9

Reasonable Grounds To Believe = sound basis for believing that a situation or circumstance exists

Question 10

Lawful

Answer 10

Conducted under a search warrant, warrant less search power or by consent

Question 11

Reasonable

Answer 11

Complies with s21 of BORA - considers nature of search, level of intrusiveness, location of search etc

Question 12

Evidential Material

Answer 12

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 13

Tangible

Answer 13

Something that may be touched

Question 14

Intangible

Answer 14

Unable to be touched, not having a physical presence

Question 15

Surveillance

Answer 15

Planned and directed activity, overt or covert, for the purposes of:
- observing, recording people, places, vehicles and things
- ascertaining the location of a thing or person, or whether a thing has been interfered with or tampered with
- intercepting private communication

Question 16

Surveillance device

Answer 16

A device which assists and enhances normal capabilities to carry out surveillance.

Includes:
- visual surveillance device
- interception device
- tracking device

Question 17

Visual surveillance device

Answer 17

• any electronic, mechanical, electromagnetic, optical, electro-optical (EMEOE) instrument, apparatus, equipment or other device (IAEOD) used to observe, or to observe and record, a private activity, BUT
• does not include spectacles, contact lenses or a similar device used to correct suboptimal vision of the user to no better than normal vision

Question 18

Private premises

Answer 18

Private dwellinghouse, marae, or any other premises that are not within the definition of non-private premises

Question 19

Non-private premises

Answer 19

Premises, or parts of premises, to which members of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway station, airport or shop.

NOTE: not all parts of hospitals etc are non-private, eg theatre rooms, offices etc

Question 20

Private activity

Answer 20

Activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants

Question 21

Private communication

Answer 21

a) communication (oral, written, telecommunication or otherwise (OWTO) made under circumstances that may reasonably be taken to indicate thay any party to the communication desires it to be confined 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

Question 22

Trespass Surveillance

Answer 22

Surveillance that involves trespass to land or goods.

Occurs the moment an officer steps onto private property without consent

Question 23

Curtilage

Answer 23

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

Question 24

Interception

Answer 24

In relation to private communication, includes hear, listen to, record, monitor, acquire or receive (HLTRMAR) the communication either when it is taking place or while it is in transit

Question 25

Interception Device

Answer 25

- Any electronic, mechanical, electromagnetic, optical or electro-optical (EMEOE) instrument, apparatus, equipment or other device (IAEOD) that is used or is capable of being used to intercept or record a private communication, BUT - does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing

Question 26

Voluntary oral communication

Answer 26

A communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded. No requirement for a surveillance device warrant to intercept and record a voluntary oral communication

Question 27

Tracking Device

Answer 27

- a device that, may he used to help or ascertain, by electronic or other means, either or both of the following: - the location of a thing or person - whether a thing has been opened, tampered with or in some way dealt with, BUT - does not include a vehicle or other means of transport, such as boat or helicopter

Question 28

Search heirarchy

Answer 28

1. Search warrant 2. Warrantless search 3. Consent search

Question 29

CADD

Answer 29

In relation to evidence means: Concealed Altered Damaged Destroyed

Question 30

Section 45

Answer 30

Restrictions on some trespass surveillance and use of interception device: - can only undertake trespass surveillance / use interception device to obtain EM in relation to: - 7 year or more offence OR - specified offences against Arms Act 1983 (importation, licence breaches, supplying arms, possession) - specified offences against the Psychoactive Substances Act 2013 (importation, manufacture and supplying) - s308A of Crimes Act 1961 (discharging firearm)

Question 31

Section 46

Answer 31

Activities for which surveillance device warrant required: - interception device to intercept private communication - tracking device unless it is solely to ascertain whether a thing has been opened/tampered with/dealt with and installation does not involve trespass to land or goods - observation of private activity in private premises - use of surveillance device that involves trespass to land or goods - observation of private activity in private curtilage that exceeds 3 hours in any 24 hour period OR 8 hours in total.

Question 32

Section 48

Answer 32

Surveillance device warrant need not be obtained for use of surveillance device in some situations of emergency or urgency: Can use a surveillance device for up to 48 hours if: - user is entitled to apply for a SDW in relation to situation BUT - obtaining SDW within the time in which it is proposed is impractical. Situations being: - RGTS offence >14 years, or against s6B of Terrorism Suppression Act 2002 (planning/preparation) and RGTB use of surveillance device will obtain EM - RGTS ... (18(2)) and RGTB use of surveillance device necessary to facilitate seizure of arms - RGTS category 3 or 4 offence in relation to arms has/is/will be committed and RGTB use of surveillance device will obtain EM - RGTS specified offence against MODA 1965 and RGTB use of surveillance device will obtain EM - RGTB person in possession of controlled drug/precursor/EM in relation to drug offence and RGTB use of surveillance device necessary to facilitate things seizure Officer using this power may, to install the device: - use force - enter any premises, area or vehicle - break open or interfere with any vehicle or thing - temporarily remove any vehicle or thing from any place and return it

Question 33

Section 60

Answer 33

Report on use of surveillance device in situation or urgency or emergency: - any use of power under s48 requires report to Judge within 1 month - report to include if EM was obtained, if offence was prevented or stopped, if arms were seized and the circumstances of the use - Judge may require further information

Question 34

Section 112

Answer 34

Items of uncertain status may be seized: circumstances: - person executing a search power - uncertain if an item found may be lawfully seized - not practical in circumstances to determine if it can be seized - item may be removed for examination or analysis to determine if it can be lawfully seized Item must relate to reason for search.

Question 35

Section 121

Answer 35

Stopping vehicles with or without warrant for purposes of search Officer may stop a vehicle to conduct search, either under warrant or with warrantless power Officer stopping vehicle must, on request of any person affected: - identify by name or identifier - state name of enactment and reason for search - if not in uniform, produce evidence of identity

Question 36

Section 122

Answer 36

Moving vehicle for safekeeping and other purposes If officer finds or stops a vehicle and has authority to search, they can move the vehicle if it is impractical to search and place found/stopped. Officer with power to arrest may move a vehicle if they find or stop it and have RGTB that it is necessary to move the vehicle for safekeeping.

Question 37

Section 123

Answer 37

Seizure of items in plain view If an officer is: - exercising a search power OR - is lawfully in any place or vehicle OR - is conducting a lawful search of a person AND finds in the course of their search or as a result of their observations any item that he or she has RGTB could be seized under a SW or any other search power THEN that item can be seized Powers under section 110 apply to this section Includes any person assisting any officer who finds an item

Question 38

Section 125

Answer 38

Special rules about searching persons Searcher must: - identify by name or unique identifier - state name of enactment and reason for search - if not in uniform, produce evidence of identity - Search must be conduct search with decency and sensitivity and in a manner that affords privacy and dignity - provide an inventory of any items seized Searcher may: - detain person to enable search - use reasonable force - use equipment that involves minimal/no contact and is reasonable - request assistance of medical practitioner/nurse OR parent/guardian/etc - if strip search, request assistance of another enforcement officer who is authorised to conduct strip searches and is of same sex as person being searched - search any item the person is wearing or carrying or that is in their immediate possession or control - seize any thing that is subject of search or that may be lawfully seized - copy any document if it is subject of search or may be lawfully seized - use reasonable measures to access a computer system/etc if intangible material that is subject of search may be in the computer/etc - copy any intangible material obtained that is subject of search - take photos, sound and video recordings and drawings of any thing carried or in possession or immediate control if RGTB they may be relevant to purposes of search

Question 39

Section 127

Answer 39

Search warrants to enter and search vehicles IF a SW issued to search a vehicle, person executing SW may enter any place where the person has RGTB vehicle is for purposes of locating vehicle and executing SW.

Question 40

Section 131

Answer 40

Identification and notification requirements for person exercising search power (other than remote access search) Before entry: - announce intention to enter and search under statutory power - identify by name or unique identifier - if not in uniform, produce evidence of identity Before/On entry: - provide occupier with copy of SW OR - name the enactment under which the WS is being executed and the reason for the search Not required to comply if: - no one lawfully present at place/vehicle OR - compliance would endanger any person or prejudice successful exercise of search power or prejudice investigation Person executing SW or WS may use reasonable force to enter if compliance exemptions or occupier refuses entry within reasonable time. If no lawful occupier is present for search, person carrying out search must leave a copy of the notice/SW in a prominent position at the place OR if that is not practical, provide a copy of the notice/SW within 7 days to the occupier/owner. Notice requires: - date and time of commencement and completion of search - name/unique identifier of person who carried out the search - if WS, name of enactment and reason for search - address where enquiries can be made - if nothing was seized, the fact nothing was seized - if anything was seized, the fact that seizure occurred and that an inventory will be provided within 7 days. Any person under 14 can not be considered an occupier of a place nor a person in charge of a vehicle. Any one who person executing search has RGTB is not the lawful occupier or person in charge cannot be considered an occupier or person in charge.

Question 41

Section 139

Answer 41

Other privileges If a person refuses to disclose information on the basis of privilege, the Commissioner or other enforcement officer may apply to a Judge for an order determining whether the claim is valid.