Search and Surveillance

Question

Answer

What are the two threshold tests used througout the Search and Surveillance Act 2012?

Reasonable grounds to suspect and reasonable grounds to believe.

Which threshold is higher: reasonable suspicion or reasonable belief?

Reasonable grounds to believe.

What is reasonable grounds to suspect?

The state of affairs is regarded as inherently likely.

What is reasonable grounds to believe?

The officer believes the state of affairs actually exists.

What is evidential material?

Evidence of an offence or any tangible or intangible item relevant to the investigation.

Does evidential material need to be admissible in court?

No, it only needs to be relevant to the investigation.

What is curtilage?

The land immediately surrounding a dwelling where common home activities occur.

What is a private premise?

A private dwelling, marae, or premises not accessible to the public.

What is a non-private premise?

Premises frequently accessible to members of the public.

What is private activity?

Activity participants reasonably expect is observed or recorded only by themselves.

What are the three surveillance devices?

Interception device, tracking device, visual surveillance device.

What is trespass surveillance?

Surveillance involving trespass to land or goods.

What does unlawfully at large mean?

A person subject to an arrest warrant or otherwise unlawfully absent from lawful custody.

What is the warrant preference rule?

Use a warrant where practicable, even if a warrantless power exists.

What case supports the warrant preference rule?

R v Laugalis.

What does s6 Search and Surveillance Act provide?

The general power to obtain a search warrant.

What must be shown for s6?

RGTS an imprisonable offence and RGTB evidential material will be found.

What does s7 allow?

Entry without warrant to arrest a person unlawfully at large.

s7 RGTS?

Person is unlawfully at large.

s7 RGTB?

The person is in the place or vehicle.

s7 powers?

Enter and search for the person to arrest them.

What does s8 allow?

Entry without warrant to avoid loss of offender or evidential material.

s8 RGTS?

Person committed an imprisonable offence and may be arrested without warrant.

s8 RGTB?

Person is there and may flee or evidence may be destroyed.

Can s8 be used to search for evidence?

No, only to locate and arrest the offender.

What is central to s8?

Arrest.

What does s9 allow?

Stop a vehicle to arrest a person.

s9 RGTS?

Person unlawfully at large or committed an imprisonable offence.

s9 RGTB?

Person is in or on the vehicle.

s9 power?

Stop vehicle.

What does s10 allow after a vehicle is stopped?

Require ID details, search for the person, and search for evidential material.

When can evidential material be searched under s10?

When the person is arrested or flees before arrest.

What offence level is required for s15?

14 years imprisonment or more.

What does s15 allow?

Entry and search without warrant to find and avoid loss of evidential material.

s15 RGTS?

14-year offence committed, being committed, or about to be committed.

s15 RGTB?

Evidence is there and will be destroyed if entry delayed.

Which section is the only warrantless power specifically allowing search for evidence in a place?

s15.

What case held a cellphone is not a place for s15?

R v Lucas.

What case reinforced warrant preference under s15?

Cook v R.

What does s16 allow?

Warrantless search of a person in a public place.

s16 threshold?

RGTB person possesses evidential material relating to a 14-year offence.

What is required for s16?

Public place plus evidential material relating to a 14-year offence.

What does s17 allow?

Warrantless entry and search of a vehicle in a public place.

s17 threshold?

RGTB evidential material relating to a 14-year offence is in or on the vehicle.

Must the vehicle be in a public place for s17?

Yes.

What does s18 relate to?

Arms offences.

s18 permits what powers?

Search person, possession, vehicle, place, seize arms, seize licence.

Can s18 be used when someone is incapable of controlling firearms?

Yes.

Can s18 apply where a protection order exists?

Yes.

What does s20 relate to?

Misuse of Drugs Act offences.

What extra requirement exists under s20?

RGTB it is not practicable to obtain a warrant.

s20 powers?

Enter and search place or vehicle.

s20 requires belief of what?

Evidence will be destroyed if action delayed.

What schedules of MODA does s20 apply to?

Schedule 1, Part 1 Schedule 2, Part 1 Schedule 3, and precursor substances in Part 3 Schedule 4.

What does s21 allow?

Search any person found in a place or vehicle being searched under s20.

Is suspicion required against the person under s21?

No.

Why can a person be searched under s21?

Because they are found at the location being searched.

What does s22 allow?

Warrantless search of a person for specified drugs.

s22 RGTB?

Person possesses specified controlled drugs or precursor substances.

s22 RGTS?

MODA offence committed, being committed, or about to be committed.

Does s22 allow searching a vehicle?

No.

What does s27 allow?

Search a person suspected of possessing a knife, offensive weapon, or disabling substance under s202A(4)(a).

Does s27 apply to s202A(4)(b)?

No.

What does s28 allow?

Search a vehicle for knives, offensive weapons, or disabling substances.

s28 requires suspicion of what?

A s202A(4)(a) offence and the weapon being in the vehicle.

What important question may need asking under s28?

Whether the person has a lawful authority or reasonable excuse.

What case emphasised asking about lawful excuse?

Kearns v R.

What does s83 allow?

Entry and search of a place after arrest.

s83 requires what belief?

Evidence relating to the offence is there and may be destroyed if delayed.

Can s83 apply to a place different from where the arrest occurred?

Yes.

Who can exercise s83?

The arresting officer.

What does s84 allow?

Entry and search of a vehicle after arrest.

s84 threshold?

RGTB evidence relating to the offence is in or on the vehicle.

Who can exercise s84?

The arresting officer.

What does s112 allow?

Removal of items of uncertain status for examination.

When can s112 be used?

While exercising a lawful search power.

Can s112 be used for evidence unrelated to the search?

No.

What does s117 allow?

Entry and securing of a place while a search warrant application is pending.

Does s117 permit a search?

No.

How long can s117 be used?

Maximum six hours.

What must an officer believe for s117?

Evidence may be destroyed, concealed, altered, damaged, or removed.

What does s121 allow?

Stopping a vehicle to conduct a lawful search.

What must exist before using s121?

Grounds to search or a warrant in force.

What does s122 allow?

Moving vehicles for search or safekeeping.

When can a vehicle be moved for search?

When lawful authority exists and search is impracticable where located.

What does s123 allow?

Seizure of items in plain view.

When can s123 be used?

While conducting a search power, lawful presence, or lawful search of a person.

Can s123 be used for evidence of an unrelated offence?

Yes, if another search power or warrant could have justified seizure.

What offences permit trespass surveillance under s45?

Offences punishable by 7 years or more, or specified Arms Act offences.

What offences permit interception devices under s45?

7-year offences or specified Arms Act offences.

Under s46 what surveillance requires a warrant?

Interception devices, tracking devices, visual surveillance of private activities, trespass surveillance.

How long may curtilage surveillance occur without a warrant?

3 hours in any 24-hour period or 8 hours total.

What section governs curtilage limits?

s46(1)(e).

What can be done without a surveillance warrant under s47?

Record what is seen or heard while lawfully present and one-party-consent recordings.

How many people must consent to a covert audio recording under s47?

At least one.

What does s48 allow?

Urgent warrantless surveillance.

How long may s48 surveillance be conducted?

48 hours maximum.

What offence level triggers s48 urgency powers?

Generally 14-year offences and specified Arms Act or drug offences.

For s16 what three facts must exist?

Public place, 14-year offence, evidential material on person.