Flashcards in Search & Surveillance Deck (64)
Having a sound basis for suspecting that a situation or circumstance exists
Having a sound basis for believing that a situation or circumstance exists.
Define a lawful search
Search that is conducted:
• with a search warrant, or
• under a warrantless search power, or
• with the person’s consent
Define reasonable search
• complies with section 21 of the New Zealand Bill of Rights Act
and considers factors such as
• the nature of the search
• how intrusive the search is
• where and when the search takes place.
In deciding whether a Search warrant is practicable consider questions such as:
• is there time to gain approval and apply for a search warrant
• can the scene be secured (under section 117)
• 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
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.
Is a person under 14 years old able to consent to a search of a place, vehicle or other thing
Section 131 Obligations
If you are using a warrantless search power you must also:
• provide a copy of the search warrant or a warrantless search notice to occupier (POL 1275) and provide an inventory of items seized.
• report your use of certain powers – (section 169)
• consider privilege – (sections 136 – 147)
you do not have to comply with the requirements on initial entry if you have RGTB this would:
• endanger any person’s safety
• prejudice the successful use of the entry and search power
• prejudice on-going investigations
Section 110 (additional powers) authorises you to:
• enter and search the place, vehicle or other thing, that you are authorised to enter and search
• search any item or 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, or part of a document, that may be lawfully seized
• access a computer system or other data storage device
• copy intangible material e.g. computer data
• take photographs, sound and video recordings and drawings
What if your search is impeded
• 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
Additional powers Section 116
You can secure a place, vehicle or other thing to be searched and exclude any person from there
Additional powers 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.
Additional powers 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.
Additional powers Section 120
If 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 someone else arrives at the place or vehicle and starts talking to the person you have detained under section 118 depending on the circumstances you may:
• exclude that person from the search scene if you have RGTB the person will obstruct or hinder your powers (section 116(1)(b)).
• detain that person to determine if there is any connection between them and the object of your search (section 118(1)).
• search that person if you have RGTB that they may have evidential material on them (section 119(1)).
• search that person if you have RGTS that they may have a dangerous item that poses a threat to safety and you believe you need to act immediately to address that threat (section 119(2)(a) and (b)).
When does privilege not apply to information?
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:
• legal advisers
• ministers of religion
• medical practitioners
• clinical psychologists
• informers (informants)
There are set procedures when a search involves privileged material held by a specified person.
• ensure that the person or their representative is present when the search is undertaken.
• give the person a reasonable opportunity to claim privilege.
When considering whether applying for a search warrant is practicable, remember that in certain circumstances, with supervisor approval, you can:
• 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 (section 117).
Any search is inherently risky. These risks must be:
• considered in planning how you execute the search warrant
Section 117 offers a special power when a search warrant application is pending.
• 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.
Who can issue a search warrant?
An Issuing Officer may be a:
• District Court Judge
• High Court Judge
Or any person authorised by the Attorney General such as a:
• Justice of the Peace
• Community Magistrate
• Deputy Registrar
An Issuing Officer may put restrictions on a 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 specified time