Flashcards in Search and Surveillance 2012 Deck (70)
means having a sound basis for suspecting that a situation or circumstance exists.
You enter a house or vehicle because you suspect an offence has been, is being, or is about to be committed there.
Reasonable Grounds to Believe (RGTB) means having a sound basis for believing that a situation or circumstance exists.
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.
When you form a suspicion or belief and choose to excersize a warrantless search power what is required
Record, Report, Justify
• 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.
Three types of lawful search
• with a search warrant, or
• under a warrantless search power, or
• with the person’s consent
A reasonable search is a search that:
• complies with section 21 of the New Zealand Bill of Rights Act
• the nature of the search
• how intrusive the search is
• where and when the search takes place.
Considerations when deciding if it is practicable to obtain a warrant
• can the Scene be secured (under section 117)
• is there Time to gain approval and apply for a search warrant
• 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
There must be RGTB that it is not practicable..
Two options when it is not practicable to obtain a warrant
Why use a search warrant?
1. Ensures judicial oversight
2. Provides greater protection for Police and the public
3. Requires recording and reporting of results
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
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.
Rules around under 14's and consent searches
A person under 14 is unable to give consent 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).
Evidential material definition
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.
Tangible and Intangible definitions
Tangible means something that may be touched.
Intangible means ‘unable to be touched; not having physical presence’.
Obligations Under Section 131 when searching a place vehicle or thing
Reason Act Intention Name Notice RAINNB
-Notice = Copy of warrant
-Reason if you are conducting a warrantless search
-Act under which you are searching
-Intention to enter and search
-Name or unique ID
-Bill of rights for detained person
You must also:
-Report your use of powers (S169)
-Provide inventory of items seized
-Show ID if not in uniform
When are you exempt from giving notice of entry for a search
RGTB no one home or that it would:
• endanger any person’s safety
• prejudice the successful use of the entry and search power
• prejudice on-going investigations
If no one is home at the time of search
-Enter using reasonable force
-Leave a copy of warrant or POL 1275
-Inventory (268) of items seized as soon as practicable within 7 days
Powers under section 110
enter and search the place, vehicle or other thing
RUSS BBC CAT
• Request assistance with entry and search
• Use reasonable force for the purpose of carrying out the search
• Search any item or items found in that place, vehicle or thing
• Seize anything that is the subject of the search or anything else that may be lawfully seized
• Bring and use any equipment found
• Bring and use a trained law enforcement dog and its handler
• Copy any document, or part of a document, that may be lawfully seized
• Copy intangible material e.g. computer data
• Access a computer system or other data storage device
• Take photographs, sound and video recordings and drawings
Powers under section 116
You can secure a place, vehicle or other thing to be searched and exclude any person from there.
• 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 if RGTB they will obstruct
Powers under 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.
Powers under 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.
Powers under section 120
If you intended to search a person or vehicle and they leave, 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.
If a person resists your search use what process ?
Ask Why Options Confirm Action
Powers under section 125
You can search any item that the person is wearing, carrying, has in their physical possession or immediate control
Privileged material examples
• legal advisers
• ministers of religion
• medical practitioners
• clinical psychologists
• informers (informants)
(Unless information is made, complied or prepared for a dishonest purpose)
Privilege – practical procedures
• ensure that the person or their representative is present when the search is undertaken.
• give the person a reasonable opportunity to claim privilege.
If you seize an item and privilege is claim or you expect it will be claimed you must stop examining or searching it.
Search warrant process
Issuing Officer authorisation
Plan and brief search warrant execution
Execute search warrant
File investigation records
What are some other options when it is not practicable to prepare a Search Warrant Application
-Oral application (In person)
-Without approaching an officer (over the phone)
-Secure the scene under 117 (up to 6 hours)
These options should only be used when others are not practicable
Before making an search warrant application what four things should you make sure of:
1 - RGTS offence punishable by imprisonment has/is/will and RGTB search will locate EM
2 - Checked target history in NIA for other applications
3 - Assess the risk of execution
4 - Obtain initial approval for Sgt or above.
Powers under section 117
-If a SW i being or is about to be made
- And you have RGTB evidential material may be CADD before SW issued you may:
• enter and secure a place, vehicle or other thing, and
• secure any item found there, and
• direct any person to assist with entry and securing the place or vehicle or securing items in it.
The powers conferred by section 117(1) may be exercised until the first of the following occurs:
(a) the expiry of 6 hours from when the power is first exercised:
(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.