Search & Surveillance Flashcards
Under S5 SS2012, the purpose of the act is to facilitate the monitoring of compliance with the law, investigation, and prosecution of offences. What are the three ways it does this (consistent with human rights values)?
- modernising the law of search, seizure, and surveillance - taking into account the technology and measures to regulate
- providing rules that recognise the importance of the rights and entitlements affirmed in other enactments
- ensuring investigative tools are effective and adequate for law enforcement needs
In order to comply with the SS2012 Act, what are the 5 things that Police will do to meet their objectives and obligations when carrying out entries, searches, seizures etc.?
- ensure it has a lawful authority to conduct such activities
- conduct risk assessments when planning the exercise of those powers and take action to mitigate risk to protect the safety of the public and staff
- only seize what Police are lawfully entitled to seize
- provide appropriate announcements and identification when exercising powers
- satisfy requirements eg. notice of inventory
When you have formed a belief or suspicion you must clearly be able to describe your reason. How do you do this?
Record your reasonable grounds for using the search power in your notebook. This is your decision log.
What makes a search lawful? (3)
- with a SW
- under warrantless search power
- with the persons consent
What makes a search reasonable? (1-3)
- complies with S21 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
What things do you need to consider when deciding whether or not to apply for a SW? (5)
- is there time to get a SW?
- can the scene be secured under S117?
- are reasonable resources available to minimise risk and ensure safety?
- is the EM at risk?
- location of the search and who may be present
* must record decision log
What are the three main benefits of using a search warrant?
- ensure judicial oversight
- provides greater protection for Police and the public
- requires recording and reporting of results
Organisational accountability is maintained.
Before you can search someone by consent, you must determine the search is for one of four reasons, what are they?
(comes under S92, SS2012 - purposes for which consent search may be undertaken)
- to prevent the commission of an offence
- to investigate whether an offence has been committed
- to protect life or property
- to prevent injury from harm
What must you advise a person whose consent is sought? (2)
- the reason for the proposed search AND
- they may consent or refuse to consent the search
What may a person do after they consent to a search?
Withdraw their consent at any time.
What are two other rules regarding consent searches?
- a person under 14 years 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 the age of 14 with authority to consent to the vehicles search)
- you do not have to report a consent search
S97 gives examples of intangible things. What are they? (2)
- an email address or
- access information to an Internet data storage facility
What is CADD?
Concealed
Altered
Damaged
Destroyed
What are you obligations under S131 before initial entry? (5)
- ID of self
- Intention to enter and search
- State name of the act
- Give notice by providing a copy of the SW OR POL1275 (search notice to occupier)
- if a person is detained, they must be given BOR
When executing a warrantless search power, other than the 5 obligations which cover ID, intention, reason, and notice - what else MUST you do? (3)
- provide POL1275 and 268
- report to use search powers (S169)
- consider privilege (lawyers etc. S136-147)
What obligation ‘notice’ must you provide to the person when executing a search warrant?
Copy of the SW.
What obligation ‘notice’ must you provide to the person when using a warrantless search power?
- Search power being used
- Reason for the search
- POL1275 (search notice to occupier)
When are you not required to comply with identification, intention, and notice?
- RGTB that no one is present
- RGTB this would endanger any persons safety
- RGTB this would prejudice the successful use of the entry and search power
- RGTB this would prejudice the ongoing investigation
If there is no one at the place/vehicle/other thing that is being searched, what MAY and what MUST you do?
MAY:
- use reasonable force to enter
MUST:
- leve a copy of the SW or POL1275 AND
- 268
- within 7 days
When must you provide the copy of the SW or POL1275 by?
Within 7 days of the search.
What is S110 SS2012?
Search powers
Every search power authorises the person exercising it—
(a) to enter and search the place, vehicle, or other thing
(b) to request any person to assist with the entry and search
(c) to use any force in respect of any property that is reasonable and any lawful seizure
(d) to seize anything that is the subject of the search or anything else that may be lawfully seized
(e) to bring and use any equipment found on the place, vehicle, or other thing
(f) to bring and use a trained enforcement dog and handler
(g) to copy any document, or part of a document, that may lawfully be seized
(h) to use any reasonable measures to access a computer system or other data storage device located
(i) copy intangible material
(j) to take photographs, sound and video recordings, and drawings
What is S116 SS2012?
Securing place, vehicle, or other thing to be searched
(1) The person carrying out a search may
(a) secure the place, vehicle, or other thing searched..
(b) exclude any person from the place, vehicle, or other thing searched, or give any other reasonable direction to such a person, if the person carrying out the search has RGTB that the person will obstruct or hinder the exercise of any power under this subsection.
(2) A person who exercises any power under subsection (1) must..
(a) ID self
(b) name of act and reason for search (unless it is impracticable) and
(c) if not in Police uniform, produce evidence of identity.
What is S118 SS2012?
Powers of detention incidental to powers to search places and vehicles
(1) If any constable or other person exercises a search power in relation to a place or vehicle, they may, 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, detain any person—
(a) who is at or in the place
(b) who arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out.
(2) A person may be detained under subsection (1) for any period that is reasonable, but not for longer than the duration of the search.
(3) A detention of any person commences when they’re told to stay and ends when they’re told to leave
(4) Reasonable force may be used
(5) …
What is S119 SS2012?
Powers of search by person who has power of arrest
- you can search people found when searching places and vehicles if you have RGTB that EM that is the object of that 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 act is needed to address that threat.
What is S120 SS2012?
Powers of search when suspect pursued
If you are in fresh pursuit and with RGTB that relevant EM is still on that person, you have the power to enter any place and apprehend the person and seraph the person or vehicle.
What does AWOCA stand for?
Ask Why Options Confirm Action
What does S125(1)(i) AND (j) SS2012 cover?
(i) You may search any item that a person is wearing, carrying, has in their physical possession or immediate control.
(j) You may seize any item that the person is wearing, carrying, or is in their immediate possession if that is the item you are searching for.
You may also seize any item that may be lawfully seized even if it was not subject of your search.
Under S118(4) SS2012 can you use reasonable force to detain a person to be searched?
Yes
- S118 is Powers of detention incidental to powers to search places and vehicles
If someone arrives at the place or vehicle and starts talking to the person you have detained under S118, what may you do? (4)
- EXCLUDE - that person from the scene if you have RGTB that person will obstruct or hinder your powers (S116(1)(b))
- DETAIN - that person to determine if theres a connection between them and the search (S118(1))
- SEARCH - that person if you have RGTB they have EM on them (S119(1))
- SEARCH - that person if you have RGTS they have something dangerous on them (S119(2)(a) and (b))
What is privileged material? What isn’t privileged material?
Privilege allows the holders of particular information to refuse to disclose this information.
No privilege applies if the information is made, received, compiled, or prepared for a dishonest purpose or to enable or aid any person to commit an offence.
Recognised privileged material includes material gained through communication with who? (6)
Legal advisers Ministers of religion Medical practitioners Clinical psychologists Informers Journalists
If privileged material held by a specific persons is located what must you do? (2)
- ensure that person (or their representative) is present
- give the person reasonable opportunity to claim privilege
