Purpose of the S and S Act (Section 5)
- Modernise the law of search, seizure and surveillance to take into account advances in technologies and to regulate the use of those technologies
- Provide rules that recognise the importance of the rights and entitlements affirmed in other enactments
- Ensure investigative tools are effective/adequate for law enforcement needs
How to comply with objectives and obligations?
- Ensure that it has a lawful authority to conduct such activities and exercise any other incidental power in relation to those activities including use of force
- Conduct risk assessments when planning the exercise of those powers and take actions to mitigate risks to protect the safety of the public and employee carrying out the act’s powers
- Only seize what police are lawfully entitled to seize
- Provide appropriate announcements and identification in the exercise of those powers
- Satisfy requirements detailed in the act e.g notice and inventory requirements after search or seizure
RGTB v RGTS
Reasonable grounds to suspect (RGTS) - having a sound basis for suspecting a situation or circumstance exists e.g enter because you suspect an offence has been, is being, or about to be committed
Reasonable grounds to believe (RGTB) - having a sound basis for believing that a situation or circumstance exists e.g you enter and search as believe you will find evidential material
When reasonable grounds are formed you must
- Record your reasonable grounds for using a search power in your notebook
- Be aware you may be required to report on your decision to use a power and grounds for using it and justify your use of a power in court or in other formal proceedings
What is a lawful search?
- With a search warrant or
- Under a warrantless search power
- With the person’s consent
Reasonable search
Complies with section 21 of the NZ BOR and consider factors such as
1) The nature of the search
2) How intrusive the search is
3) Where and when the search takes place
Considerations for practicality for search
- Is there time to gain approval and apply for a search warrant
- Can the scene be secured under sl17?
- 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
- If not practicable to apply for a SW search by warrantless power or by consent
Why use a search warrant
- Ensures judicial oversight
- Provides greater protection for police and the public
- Requires recording and reporting of results
Search by consent
- To prevent the commission of an offence
- To investigate whether an offence has been committed
- To protect life or property
- To prevent injury or ham
- Under section 92 one or more of these situations must exist to justify consent search
What to advise for consent
- Of the reason for the proposed search and
- They may consent or refuse to consent to the search
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
Tangible v intangible CADD
- Tangible means something that can be touched
- Means unable to be touched not having physical presence
- S97 examples of intangible email address, access info, internet data storage
- Concealed, altered, damaged or destroyed
Section 131 obligations
- Identification, intention, reason, notice requirements where 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)
Section 131 obligations reason
You must state the reason for your search and provide;
- A copy of the search warrant or a warrantless search notice to occupier
- Provide inventory of items seized
- Report your use of certain powers s169
Section 131 obligations reason
You must state the reason for your search and provide;
- A copy of the search warrant or a warrantless search notice to occupier
- Provide inventory of items seized
- Report your use of certain powers s169
Section 110 authorise you to
- Enter and search the place, vehicle or other thing that you are authorised to enter and search
- Search any 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, part of a document, that may be lawfully seized
- Access to a computer system or other data storage
- Copy intangible material example computer data
- Take photographs sound and video recordings and drawings
Section 116
If a search is impeded by any person of if RGTB that person would obstruct or hinder ability to search then you can use section 116 to
- Exclude that person from the place, vehicle or other thing that is being searched or any area in or on the place or vehicle
- Give any reasonable direction to that person
- 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 purpose 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 is still on the person, you have the power to enter any place to apprehend the person and search the person or vehicle
Section 121
Provides the power to stop a vehicle if you intend to search it and have authority to search the vehicle by
- Executing search warrant
- Using a warrantless power
Section 122
Moving vehicles for search/safe keeping
Section 123
You may seize any item you find in plain view, when searching or you observe if:
• You have RGTB that you could have seized the item under a search warrant or other search power.
Section 112
Items of uncertain status may be seized
Section 125
Rules for searching people
- Under S125(1)(i) you can search any item that the person is wearing, carrying, has in their physical possession or immediate control
- Any search undertaken must be conducted decency and sensitivity.
- S125(2)(J) you can seize any item person wearing, carrying, or in immediate possession if that is the item you are searching for. You may also seize any item that may be lawfully seized even if not subject of search. Remembering to promptly provide an inventory on a s268
Section 127
- Allows you to enter any place
- To locate the vehicle to execute the search warrant if
- You have RGTB that the vehicle is there
Privileged material
Privilege allows holders of particular information to refuse to disclose this info.
The info is recognised as privileged. No privilege applies if the info is made, received, compiled or prepared for a dishonest purpose or to enable or aid any person to commit an offence.
Recognised privileged material
- Legal advisers
- Ministers of religion
- Medical practitioners
- Clinical psychologists
- Informer
- Journalists
Search warrant process - 7 steps
- Gain prior approval
- Gain online approval
- Gain issuing officer authorisation
- Plan and brief search warrant execution
- Execution
- Report outcomes
- File investigation records
Alternative methods for search warrant application
- Apply for a search warrant orally
- Apply for a search warrant without approaching an issuing officer in person (by using the phone)
- Secure a scene while you apply for a search warrant for a maximum period of 6 hours (s117)
Before application of search warrant
- Be sure that there are RGTS an offence punishable by imprisonment has been, will be, is being or is about to be committed and
- RGTB that the search will find evidential material in respect of the offence in the place, vehicle, or other thing or facility
- Have checked the target/history NIA for other search warrant applications/outcomes
- Have assessed the risk associated with executing the search warrant
- Have obtained initial approval from a supervisor at or above sergeant to proceed with online application
Search warrant risk assessment
- Must be identified
- Assessed
- Considered in planning how you execute the search warrant
Section 117
- Enter and secure a place, vehicle or other thing
- Secure any items found there
- Direct any person to assist with entry and securing the place or vehicle or items in it
- Is not a search power
- Expiry of 6 hours from when it is excersised
- Warrant is available for execution at that place or vehicle in respect of that other thing
- The application for a search warrant is refused
Who can issue a warrant
- District court judge
- High court judge
- Authorised by attorney general
- JP
- Community magistrate
- Registrar
- Deputy registrar
- RGTS offence has been, will be or is about to be committed
- RGTB that the search will find evidential material in respect of the offence in the place, vehicle or other thing
Issuing officer restrictions on search warrant including
- Restricting the time when the search warrant can reasonably be executed
- Requiring the occupier or person in charge of a place to provide reasonable assistance to the officer executing the search warrant
- Requiring a report on the search warrant within a time
When a warrant application refused you should
- Record the issuing officers reasons for refusing to sign
- Consider the issues raised and if possible re-draft the application, ensuring you have addressed these issues
- Re-submit Appln to same Issuing Officer
8b if the issues cannot be addressed
• Make further enquiries to support the Appln
• Consider continuing your investigation without conducting a search
• If the reasons for not signing SW don’t seem justified, submit a report to Legal Service
Who can execute a warrant how long is it valid for?
A person to who directed or any constable
When can a search warrant be executed and when its considered to be executed?
At any time reasonable in the circumstances or at a restricted time required by the issuing officer as a condition of execution
When can a search warrant be executed and when its considered to be executed?
At any time reasonable in the circumstances or at a restricted time required by the issuing officer as a condition of execution
In respect of ongoing risk assessment, in preparation for execution of warrant you must
- Review and re-assess the identified risks
- Work with others to identify and consider any further risks
- Plan how to manage and minimise any identified risks
- Determine how risk management will be communicated in your search warrant briefing
Applications to postpone s131 obligations made under sl34 s&s
- At the time of the search warrant application or
- Before 7 days has passed after the search warrant execution
- A judge can postpone these obligations for a period not exceeding 12 months. This would apply to a long term investigation
- Primary concern is staff executing SW and other present at the target is a primary concern.
- May be required to use reasonable force to enter the place vehicle or other thing s131 Search (on property only) and seize sllO
- Carry out a search of a person s125
GSMEAC ground
- Location to be searched
- Address
- Neighbours
GSMEAC execution
- Timing
- Method of entry
- Roles
- Responsibilities
- Obligations on entry
- Managing suspects
- Searching for evidential material
- Recording evidential material
- Assisting vulnerable people
GSMEAC admin communication
Admin:
- Travel to and from the place to be searched under warrant
- Timing of the SW execution
- Recording of evidential material seized
Communication:
- Cell phone numbers and radio channel
- Before execution
- During execution
- Debrief
OC warrant should
- Ensure staff present
- Reinforce info with visuals, maps, diagrams, photos
- Copies of important documents
- Staff clear on roles and responsibilities
- Tell staff about sensitive info, not for notebook
Section 19
Searching person pursuant to search warrant for drugs
What is a production order
- Made under s74
- Required person/organisation to produce documents as EM of specified offence
- In force for period no longer than 30 days
PO vs SW
PO avoids disruption, offset costs of physical presence and search, less intrusive and less costs
Matters to consider before application for production order
- Grounds for applying are met
- Benefit of application is advantageous
- Info sought does not make unreasonable or unnecessary demands
Approvals for production order
- District approver approval for telecommunications
- Written consent from sergeant
- Police executive/PNHO/DC for media organisations
Grounds for applying for production order
- Suspect an offence
- Believe documents sought constitute EM, are or will be in possession or under control
If oral application for PO is allowed
Applicant must complete application within 24 hours Issuing officer must record grounds ASAP
Hearsay evidence can be used if reliable, indicate reliability by
- Sufficient information to prove reliability
- Indicate informants reliability and giving reliable info in the past
- Whether information confirmed by other means
Damage to property during warrant/search power
- If justified by execution no damages will be laid
- If not justified by execution, but grounds to execute was sound - likely not paid case by case
- Landlords carry risk if justified warrant and execution
- lf not justified or mistake made or unreasonable damage, compensation likely will/may be paid
Where damage claim is likely to arise, report containing following info must be made:
- Circumstances of execution
- Grounds for execution
- Damage circumstances
- Outcome
- Occupier details
- Nature and bias of claim
- Steps taken to prevent further loss/damage
Securing premises
- Never be left unaccompanied and insecure after forced entry as liability may arise
- OC must make every attempt to prevent loss by securing property without incurring liability for cost
- Means liaise with owner to secure property
- Engage a contractor at occupiers request and cost
- Temporary repair by staff
Surveillance
- Everyone has a right to privacy in home, right to refuse entry
- Right to expect privacy to conduct lawful private activity
- Act restricts surveillance activity where individuals ought to reasonably expect privacy
What is surveillance
- Planned and directed activity, overt or covert for
- Observing and recording of people PVT
- Ascertain location of thing or person if its been tampered with or interfered with
- Intercepting private communications
Surveillance risk assessment, risk must be
- Identified
- Assessed
- Considered in planning
What is a surveillance device
- Devices which assists and enhances normal capabilities to carry surveillance
- Interception
- Visual
- Tracking
Visual surveillance device
- Any electronical
- Mechanical
- Electromagnetic
- Electro-opticaI
- Apparatus
- Equipment or other device
- Used to observe and record private activity
- Does not include spectacles, contacts or anything to correct subnormal vision to no better than normal
Section 46 -activities for which surveillance device warrant required
Observation and recording of private activity in private premises by VSD
Surveillance is unlawful if
- If it involves trespass which is unauthorised entry onto private land or unauthorised handling of goods
- Unless authorised by SDW
Private premises
- Private dwelling house
- Other premises not defined as non-private
Non-private premise
- Premises or part of premises which public are frequently permitted to access
- Include hospitals, bus station, airport, shop
- Some parts within remain private
Private activity
- Fundamental human right
- Participant can reasonably expect the activity is private if carried out in private premises
Private communication
- Means communication (oral, written, telecommunication, other) made under circumstances that indicate any party desires it to be confined to the parties to the communication
- Person can reasonably expect communication to be private when interfered or intercepted
- SOW required
Private communication doesn’t include
Communication occurring in circumstances in which any party ought reasonably expect that the communication may be intercepted by some other person without express or implied consent of any party
Trespass surveillance means
- Surveillance involves trespass onto land or goods
- Occurs the moment officer steps onto private property without consent
- If no consent to enter private property you are trespassing
Restrictions on use of surveillance device
Any warrant application to use VSD for trespass surveillance only authorised for serious offence 7 years or more imprisonment
Section 46 - activities for which surveillance device warrant required
Use or surveillance device that involves trespass onto private property
What is curtilage
- Land immediately surrounding a house or dwelling, including closely associated buildings and structures
- Defines boundaries which home owner can reasonably expect privacy where common daily activities take place
- Activities that don’t require a warrant cover the use of VSD within curtilage of private, restricted to time limitation
Section 46 - activities for which surveillance device warrant required
Observation and recording in the curtilage of private premises by VSD if duration exceeds 3 hours in a 24 hour period or 8 hours in total
Limitations in interception device
Offence 7 + years arms offence psychoactive substance act
Section 47 - voluntary oral communication
- Between one or more persons where at least one party gives consent for communication to be recorded
- No need to obtain SDW
Tracking device
- Decide used to help ascertain by electronic or other means
- Location
- Whether thing has been opened, tampered with, or dealt with
- Does not include a vehicle or helicopter
Section 46 - activities for which surveillance device warrant required
- Use of tracking device
- Except where device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with and
- Installation doesn’t involve trespass
Section 48- emergency or urgency where SDW may not be obtained
- 14 + years offence
- Believe SDW will obtain EM of offence
- Arms act offence
- Person incapable of control of arms may kill or cause GBH domestic violence act, protection order grounds
- A drug offence
- Situation which is
- Likely to cause injury or serious property, damage, and surveillance is necessary to prevent offending
- Presenting risk to life and safety and surveillance is necessary
Two key ingredients for situation to be recognised as emergency or urgency
- Entitled to apply for SDW as situation is one of serious crime activity
- Impracticable in the circumstances, you need to use a device urgently as its not immediately practicable to obtain a SDW
Time constraints/limitations emergency surveillance powers
- Mustn’t exceed 48 hours
- Application must still be made for SDW if surveillance will continue for period where practical to make application
- Approval should be obtained by DI in consultation with legal, unless
- Situation doesn’t allow it
- Statutory criteria is met
- Opportunity arises to obtain evidential material that will be lost
Period for SDW
- No more than 60 days
- New application must be made to amend or extend
Section 60 - requirement to report emergency surveillance power
Must provide notification to a judge within a month after the date of last day of any period of 48 hours surveillance device was used
Evidential Material
Tangible - something that may be touched.
Intangible - something unable to be touched; not having physical presence’
How long is a search warrant valid?
No more than 14 days from the date of issue or
No more than 30 days from the date of issue ( if you have justified why this is necessary and the Issuing Officer is satisfied.)
When is a search warrant considered executed?
When you / anyone assisting you:
- have seized the evidential material specified in the search warrant, or
- leave the place, vehicle or other thing to be searched and do not return within 4 hours
Items of uncertain status 112
Any item you want to remove must be within the scope of the original search
1. drugs that require analysis at a laboratory
2. large amounts of documents that may contain evidential material and it is not practicable to sort them on-site.
Items in Plain view 123
You may seize any item you find in plain view, when searching or you observe if:
• You have RGTB that you could have seized the item under a search warrant or other search power.
Oral Application for Production Order 100
An issuing officer may allow an appln for a PO to be made orally ( e.g. phone / in person) and excuse the applicant from putting all or part of the appln in writing if satisfied that:
Requiring a written application would result in a delay
that would compromise the effectiveness of the search, and
the question of whether the order should be issued
can be properly determined on the basis of an oral communication or personal appearance, and all required information is supplied to them (orally, or partly orally and partly in writing). (Section 100 (3))
Police employees must not incur expenditure or any indication or undertaking on behalf of Police to rectify damage caused to any property in the execution of a search warrant or statutory power, as this pre-empts any decision as to the payment of compensation.
Policy
Where a claim arises / likely to arise,
OC should direct the incident to the District Commander or National Manager
Along with a report containing the following information:
• Circumstances in which SW/ Stat Power was executed;
• The grounds for its execution;
• The damage caused and the associated circumstances;
• The outcome of the SW or Stat Power being executed;
• Details of owner of property and occupier / user of the property, at the relevant time;
Securing Premises
Premises must never be left unoccupied / insecure after a forced entry
Liability for any loss may arise, e.g. if contents are stolen from address. Make every attempt to prevent such loss by securing the property without incurring a liability for costs on behalf of Police.
Generally this will mean:
- liaising with owner/ occupier to secure their property.
If necessary / practicable, offer to wait for the owner / occupier I agent, to arrive to do this or
- at the occupier/ owner’s request, engage a contractor to make premises secure on the understanding that the occupier or owner will bear the cost, or
- effect a temporary repair where feasible, e.g. by boarding up a window.
Voluntary Oral Communication
A comm between one or more persons
where at least one party in the communication
gives their consent for the communication to be recorded
There is no requirement to obtain a SDW
to intercept and record a voluntary oral com
Why use a search warrant:
- Ensures judicial oversight
- Provides greater protection for Police and the
- Requires recording and reporting of results
Privileged material includes material gained through communication with:
• legal advisers
• ministers of religion
• medical practitioners
• clinical psychologists
• informers (informants)
• journalists
Who can Authorise a Search Warrant
• District Court Judge
• High Court Judge
Or any person authorised by the Attorney General such as:
• Justice of the Peace
• Community Magistrate
• Registrar
• Deputy Registrar
Duration of Production Order
In force for the period specified in the order (not exceeding 30 days after the date on which the order is made). (Section 76).
A surveillance device
is a device which assists and enhances your normal capabilities to carry out the surveillance.
• a visual surveillance device
• an interception device
• a tracking device
Section 46 - Activities for which surveillance device warrant required
(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 that observation, for the purposes of a single investigation, or a connected series of investigations, exceeds -
(i) 3 hours in any total 24-hour period; or
(ii) 8 hours in total
Consent to the search of place/vehicle/other thing for a person under 14
A person under 14 is unable to consent to the search of place/vehicle/other thing
Unless they are found driving with no passenger of or over 14 with authority to consent to the vehicle’s search.
Report of consensual search
Is not required under S and S Act.
