Search & Surveillance

Question 1

Define RGTS

Answer 1

Having a sound basis for suspecting that a situation or circumstance exists

Question 2

Define RGTB

Answer 2

Having a sound basis for believing that a situation or circumstance exists.

Question 3

Define a lawful search

Answer 3

Search that is conducted:
• with a search warrant, or
• under a warrantless search power, or
• with the person’s consent

Question 4

Define reasonable search

Answer 4

Search that:
• 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.

Question 5

In deciding whether a Search warrant is practicable consider questions such as:

Answer 5

• 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

Question 6

Why use a search warrant?

Answer 6

1. Ensures judicial oversight
2. Provides greater protection for Police and the public
3. Requires recording and reporting of results

Question 7

Before conducting a search by consent, you must determine that the search is for one of the following reasons:

Answer 7

• 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

Question 8

Before conducting a search by consent, you must advise the person from whom consent is sought:

Answer 8

• of the reason for the proposed search; and

* they may consent or refuse to consent to the search.

Question 9

Is a person under 14 years old able to consent to a search of a place, vehicle or other thing

Answer 9

No

Question 10

Define CADD

Answer 10

• Concealed
• Altered
• Damaged
• Destroyed

Question 11

Section 131 Obligations

Answer 11

• ID
• Intention
• Reason
• Notice

Question 12

If you are using a warrantless search power you must also:

Answer 12

• 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)

Question 13

you do not have to comply with the requirements on initial entry if you have RGTB this would:

Answer 13

• endanger any person’s safety
• prejudice the successful use of the entry and search power
• prejudice on-going investigations

Question 14

Section 110 (additional powers) authorises you to:

Answer 14

• 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

Question 15

What if your search is impeded

Answer 15

• 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

Question 16

Additional powers Section 116

Answer 16

You can secure a place, vehicle or other thing to be searched and exclude any person from there

Question 17

Additional powers Section 118

Answer 17

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.

Question 18

Additional powers Section 119

Answer 18

• 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.

Question 19

Additional powers Section 120

Answer 19

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.

Question 20

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:

Answer 20

• 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)).

Question 21

When does privilege not apply to information?

Answer 21

if the information is made, received, compiled or prepared for a dishonest purpose or to enable or aid any person to commit an offence.

Question 22

Recognised privileged material includes material gained through communication with:

Answer 22

• legal advisers
• ministers of religion
• medical practitioners
• clinical psychologists
• informers (informants)
• journalists

Question 23

There are set procedures when a search involves privileged material held by a specified person.
You must:

Answer 23

• ensure that the person or their representative is present when the search is undertaken.
• give the person a reasonable opportunity to claim privilege.

Question 24

When considering whether applying for a search warrant is practicable, remember that in certain circumstances, with supervisor approval, you can:

Answer 24

• 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).

Question 25

Any search is inherently risky. These risks must be:

Answer 25

• identified
• assessed
• considered in planning how you execute the search warrant

Question 26

Section 117 offers a special power when a search warrant application is pending.
You may:

Answer 26

• 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.

Question 27

The powers conferred by section 117(1) may be exercised until the first of the following occurs:

Answer 27

(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.

Question 28

Who can issue a search warrant?

Answer 28

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
• Registrar
• Deputy Registrar

Question 29

An Issuing Officer may put restrictions on a search warrant, including:

Answer 29

• 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

Question 30

When the Issuing Officer does not sign the search warrant application you should:

Answer 30

• 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 the application to the same Issuing Officer

Question 31

Who may execute a search warrant?

Answer 31

The person to whom it is directed or any constable.

Question 32

When is a search warrant considered executed?

Answer 32

When you (or 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.

Question 33

Risk assessment must be on-going and in preparing a search warrant execution plan you must:

Answer 33

• 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

Question 34

you may apply to a judge to postpone your obligation to provide a copy of the search warrant if:

Answer 34

• endanger the safety of any person, or

* prejudice on-going investigations

Question 35

An application to postpone is made under section 134 of the Act and should be presented to the judge:

Answer 35

• at the time of the search warrant application, or

* before 7 days has passed after the search warrant execution

Question 36

The person in charge of the search warrant briefing should:

Answer 36

• ensure all required staff are present
• reinforce verbal information given with visual prompts
• use maps, charts, diagrams, photographs
• provide copies of all important documents
• ensure all staff present are clear about their roles and responsibilities
• identify and advise staff of what they can record in their notebooks during the briefing as all entries may be disclosable

Question 37

Before or when you enter a place or vehicle to execute a search warrant you must:

Answer 37

• identify yourself by name or unique identifier (eg: QID)
• provide evidence of identity if not in uniform
• state the name of the Act and reason for your search
• announce your intention to enter and search
• provide a copy of the search warrant

Question 38

When you exercise a power to search a person you may:

Answer 38

• detain the person to enable the search to be carried out (for as long as is reasonably necessary)
• use force that is reasonable for the purposes of the search
• search any item that the person is wearing, carrying or is in the person’s physical possession or immediate control
• seize anything carried by or in their physical possession or immediate control if the thing is the subject of the search or may be lawfully seized.

Question 39

In Executing a search warrant for a vehicle you can enter any place if:

Answer 39

• to locate the vehicle to execute the search warrant if

* you have RGTB that the vehicle is there.

Question 40

If you are carrying out a lawful search and it is not reasonably practicable to determine whether any item can be lawfully seized you may (section 112):

Answer 40

• remove items for examination or analysis off-site to determine if you can seize them lawfully

Question 41

Section 112 (uncertain status) applies if you are:

Answer 41

• Exercising a search power or
• Carrying out a lawful search of a person or
• Lawfully in a place or vehicle

Question 42

You may seize any item you find in plain view when you are searching or that you observe if (Section 123):

Answer 42

• You have RGTB that you could have seized the item under a search warrant or other search power.

Question 43

What is a production order

Answer 43

Production orders are orders made under section 74 of the Search and Surveillance Act 2012 requiring a person or organisation (such as a business) to produce documents to enforcement agencies as evidential material of a specified offence.

Question 44

Production Order versus Search Warrant

Answer 44

• compliance costs are incurred by a business issued with a production order
• costs are offset against the avoidance of the disruption
• production order powers will be less intrusive and involve less cost

Question 45

If your PO application relates to a news media organisation, you must:

Answer 45

• obtain approval from a Police Executive member in the case of PNHQ or a district commander for a district matter,

Question 46

An issuing officer may allow an application for a production order to be made orally if:

Answer 46

• 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))

Question 47

If an oral PO application is allowed:

Answer 47

• the issuing officer must record the grounds for the application as soon as practicable
• the applicant must complete the application form capturing the information conveyed to the issuing officer as soon as practicable and in any event within 24 hours, and the order

Question 48

Indicate Hearsay reliability in applications by stating:

Answer 48

• sufficient information to prove the reliability of what has been stated
• the informant’s reliability and whether they have given reliable information in the past. An appropriate way to say this is: “In the past, Informant A has supplied Police with information that has proved to be reliable.”
• whether the information has been confirmed by other means.

Question 49

The purpose of surveillance?

Answer 49

• observing, and any recording of that observation, of people, vehicles, places and things
• ascertaining (tracking) the location of a thing or person, or whether a thing has been interfered or tampered with
• intercepting a private communication

Question 50

What is a surveillance device?

Answer 50

• a visual surveillance device
• an interception device
• a tracking device

Question 51

What is a visual surveillance device?

Answer 51

(a) means 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
(b) 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 52

Section 46 Activities for which surveillance device warrant required

Answer 52

(a) use of an interception device to intercept a private communication:
(b) use of a tracking device, except where a tracking device is installed 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
(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) 3 hours in any 24-hour period; or
(ii) 8 hours in total.

Question 53

Section 45 Restrictions on trespass surveillance

Answer 53

• Undertake trespass surveillance
• obtain evidential material
• += 7 years
• against 44,45,50,51,54,55 AA 83

Question 54

Section 46 exceptions for warrant:

Answer 54

• private activity in public areas

- private activity in the curtilage for single investigation for 3 hours in a 24h period, 8 hours in total

Question 55

Interception device

Answer 55

(a) 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
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.

Question 56

A surveillance device warrant will only be authorised for use of an interception device for gathering evidential material for:

Answer 56

• offences punishable by 7 or more years imprisonment
• identified Arms Act 1983 offences
• identified Psychoactive Substances Act 2013 offences

Question 57

Section 47 Activities that do not require warrant

Answer 57

• lawfully in private premises and record without surveillance device
• one person consents in an oral conversation

Question 58

What is a tracking device?

Answer 58

(a) means a device that, may be used to help ascertain, by electronic or other means, either or both of the following:
(i) the location of a thing or a person;
(ii) whether a thing has been opened, tampered with, or in some other way dealt with; but
(b) does not include a vehicle or other means of transport, such as a boat or helicopter.

Question 59

What offence is required for a surveillance device warrant to authorise the use of a tracking device

Answer 59

offence punishable by imprisonment.

Question 60

Section 48, Two key ingredients exist for any situation to be recognised as one of emergency or urgency.

Answer 60

– you would be entitled to make an application for a surveillance device warrant as the situation is one of serious criminal activity.
– you need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant.

Question 61

Surveillance without warrant in situations of emergency or urgency is permitted only where the above circumstances apply and the suspected offence has been, is being, or is about to be committed and is:

Answer 61

• punishable by 14 years imprisonment or more and
• you believe that use of the surveillance device would obtain evidential material in relation to the offence:
• an Arms Act 1983 offence
− or a person by reason of their physical or mental condition (however caused) is incapable of having proper control of the arms; or may kill or cause bodily injury to any person;
− or that under the Domestic Violence Act 1995 a protection order or a police safety order is in force against the person;
− or there are grounds to make an application against him or her for a protection order.
• 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
• presenting risk to life and safety and surveillance is necessary as an emergency response (section 14)

Question 62

Approval to use an interception device in an emergency situation should be obtained from a Detective Inspector unless:

Answer 62

• the immediacy of the situation does not allow for prior planning and approval from a Detective Inspector in consultation with Legal Services; 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 63

Time constraints for section 48

Answer 63

period not exceeding 48 hours

Question 64

Requirement to report on a section 48

Answer 64

provide a notification to a Judge within 1 month after the date of the last day of any period of 48 hours or less over which the surveillance device was used.