Surveillance

Question 1

When an officer is lawfully in a place and carries out a lawful surveillance by means of unaided observation, unaided hearing and smell, what else can be done?

Answer 1

The officer can also record, by way of audio or visual device, what you see or hear there, providing that the device you use does not enhance (eg. amplify, enlarge) your ability to observe or hear.

Question 2

What is Police Surveillance?

Answer 2

It is planned and directed activity, either open or covert, and for the purpose of,
- Observing and any recording of that observation, of people, vehicles, places or things,
- Asscertaining (tracking) the location of a thing or person, or whether a thing has been interfered or tampered with,
- Intercepting a private communication

Question 3

Definition of a Surveillance Device.

Answer 3

A device that assists and enhances your normal capabilities to carry out the surveillance.

Question 4

A surveillance device may be one or more of the following.

Answer 4

• A visual surveillance device
• An interception device
• A tracking device

Question 5

What is a visual surveillance device?

Answer 5

• Any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is 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 subnormal vision of the user to no better than normal vision.

Question 6

Activities for which surveillance device warrant is required. Section?

Answer 6

46
a) use of interception device to intercept a private communication.
b) use of a tracking device, except where a tracking device is installed to solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods,
c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device,
d) use of a surveillance device that involves trespass to land or trespass to goods,
e) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds
i) 3hrs in any 24hr period, or
ii) 8hrs in total

Question 7

Some exceptions apply to the requirement to obtain a SDW for the use of visual surveillance device, what are these?

Answer 7

• situation of emergency or urgency (although use of a surveillance device in these situations must still be reported in the online system)
• activities that don’t require a warrant.

Question 8

Surveillance is unlawful if it involves what?

Answer 8

A trespass. Which is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by a SDW.
Exceptions for emergency or urgency.

Question 9

Define private premises.

Answer 9

A private dwelling house, a marae, and any other premises that are not within the definition of non-private premises.

Question 10

Define Non-private premises.

Answer 10

Premises, or part of a premises, to which members of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway, airport or shop.
Note: Not all parts of public areas are open to public eg. Offices etc.

Question 11

Define: Private Activity

Answer 11

A participant in an activity can reasonably expect the activity is private, if it is carried out in private premises.
‘reasonably expect’ must be an objective test eg. What any person would expect.

Question 12

Define: Private communication.

Answer 12

• Means communication made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties of the communication, but
  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.

Question 13

A warrant application for a SDW for trespass surveillance will only be authorised for obtaining evidential material for what offences?

Answer 13

Serious offences only - offence punishable by 7 years imprisonment or more.
Identified Arms Act 1983 offences, or
Identified Psychoactive Substance Act 2013 offences.

Question 14

Where reasonable expectations of privacy are interfered with or intruded upon by the use of an interception device, what is required?

Answer 14

A SDW

Question 15

When can someone expect their communication to be private?

Answer 15

When it occurs in circumstances where they have the right to expect it will not be intercepted or recorded.

Question 16

Define: Trespass surveillance

Answer 16

Surveillance that involves trespass onto land or trespass to goods.

Question 17

When does trespass surveillance occur?

Answer 17

The moment an enforcement officer steps onto private property without consent. For surveillance purposes, if you do not have consent to enter onto private property, then you are trespassing.

Question 18

What other restrictions are there on use of surveillance devices?

Answer 18

Any SDW warrant applications to use an interception device, whether or not a trespass surveillance occurs, is restricted to obtaining evidential material for serious offences only.

Question 19

Define: Curtilage

Answer 19

Means the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’
It defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.

Question 20

Legislation sets time limits on what?

Answer 20

On the use of a visual surveillance device for surveillance activity within the curtilage of private property.

Question 21

A visual surveillance device may be lawfully used (curtilage) without warrant to gather evidential material for a serious offence if what?

Answer 21

If it’s usage does not exceed the established time limits.
3hrs in any total 24hr time period, or, 8hrs in total.

Question 22

When is a SDW required for an interception device?

Answer 22

When intercepting private communication

Question 23

Interception in relation to private communication includes?

Answer 23

(HARMLR)
To hear, listen to, record, monitor, acquire or receive the communication either, when its taking place, or while it is in transit.

Question 24

Define: Interception device

Answer 24

Means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device 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 25

Define: Voluntary oral communication

Answer 25

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. (Section 47) Don't need a SDW.

Question 26

Limitations of SDW for intercepting private communications.

Answer 26

Whether or not it occurs in private or non-private premises, to obtaining evidential material for serious offences only (7yrs +, identified Arms Act offences, or identified Psychoactive substances Act 2013 offences)

Question 27

Define: Tracking device

Answer 27

Means a device that, may be used to help ascertain, by electronic, or other means, either or both of the following, The location of a thing or a person, or Whether a thing has been opened or tampered with or in some other way dealt with, but, Does not include a vehicle or other means of transport, such as a boat or helicopter.

Question 28

Does a tracking device need a SDW?

Answer 28

Yes, although it is considered less intrusive to an individuals privacy.

Question 29

SDW may authorise the use of a tracking device to obtain evidential material for?

Answer 29

The investigation of any offence punishable by imprisonment.

Question 30

Do you need a SDW solely for the purpose of ascertaining whether a thing has been opened, tampered with or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods?

Answer 30

No (s46(b))

Question 31

Tracking devices may only be used with?

Answer 31

The assistance of specialist squads.

Question 32

Specialist trained officers must be the only people to undertake?

Answer 32

Covert surveillance using sophisticated electronic surveillance devices.

Question 33

Two key ingredients exist for any situation to be recognized as one of the emergency or urgency situations to use a surveillance device without a SDW.

Answer 33

- Entitled to apply. That you would be entitled to make an application for a SDW as the situation is one of serious criminal activity, but, - Impractical in the circumstances. You need to use a device urgently as it is not immediately practicable to obtain a SDW. Section 48

Question 34

Situations of emergency or urgency to use a surveillance device, needs the two circumstances to apply, and?

Answer 34

- The suspected offence has been, is being, or about to be committed, and, - Is punishable by 14yrs imprisonment or more, and, - You believe that use of a surveillance device would obtain evidential material in relation to the offence. - An Arms Act offence, where a person by reason of their physical or mental condition is incapable of having proper control of the arms, or that under the Domestic Violence Act a PO or PSO is in force against them, or there are grounds to make an application against them, or - A drug offence, or - There is a situation which is, likely to cause injury or serious property loss/damage and surveillance is necessary to prevent offending from being committed or continuing, or, presenting risk to life and safety and surveillance is necessary as an emergency response.

Question 35

How long is the warrantless period for the use of a surveillance device in a situation of emergency, or urgency?

Answer 35

A period not exceeding 48hrs

Question 36

Approval to use an interception device in an emergency situation should be obtained by who?

Answer 36

A Detective Inspector, unless: - The immediacy of the situation does not allow for prior planning and approval, and - Statutory criteria is met, and - An opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time.

Question 37

When a warrantless surveillance power is excersised, the enforcement officer must provide what?

Answer 37

A notification (report in SS system) to a Judge within 1 month after the date of the last day of any period of 48hrs or less over which the surveillance device was used. Section 60

Question 38

How long can a SDW be issued for? And explain renewal procedure.

Answer 38

No more than 60 days. No warrant renewal procedure under the act, to extend the period of 60 days, or what was valid, a new application for a SDW will be required.