Police Powers of Search and Seizure: New Zealand Law

Police Powers, Search, and Seizure

This section covers the powers the police have to search people and seize property, particularly in the context of New Zealand law, overlapping with areas like boulevard sex offenses and counterterrorism, while also considering human rights.

General Laws and Principles

In the New Zealand legal system, search and seizure powers are a significant intersection between the state and its citizens. Police, as representatives of the state, possess powers that can directly and physically affect individuals. This examination focuses on the rights of individuals when police, acting as agents of the state, enter private property, conduct personal searches, and seize evidence.

The core concern revolves around when police actions in search and seizure might violate an individual's rights. There are established rules that govern what the police can and cannot do during searches and seizures of property or evidence.

Types of Search and Seizure Situations

1. Consent-Based Search: If the police ask for permission to search a person, property, vehicle, bag, or possessions, the individual has the right to either agree or refuse.
   • If the police request to search a bag, the individual can consent.
   • Individuals can inquire whether the police have a warrant to search their property. If the police do not have a warrant, the individual can refuse the search.
2. Search with a Warrant: Even when the police have a warrant, individuals have rights.
   • If a police officer asks to search property and claims to have a warrant, the individual can request to see the warrant and inquire about the specifics of what the police are authorized to search for.
   • This verification is important to ensure that the police comply with the warrant's conditions. Warrants typically do not grant unlimited powers; doing so would significantly breach individual rights.
   • Police must adhere to the conditions specified in the warrant and can only search for items listed in it.
   • The police can only use reasonable force to execute the search, with the definition of "reasonable" varying based on the context.
   • Refusal to comply with a search conducted under a warrant may result in arrest.
   • Searches can occur even in the individual's absence if the police possess a warrant to search a house, but they must still adhere to the warrant’s conditions.
3. Search Without a Warrant: In specific circumstances, police can conduct a search without a warrant and without consent.
   • If police have reasonable grounds to believe an individual possesses drugs or offensive weapons.
   • If a vehicle contains evidence of a crime.
   • Following an arrest, police can search the individual and their belongings, including bags or vehicles.
   • Searches can occur post-arrest if related to the arrest.
   • At a police station, authorities can confiscate personal property and conduct internal body searches if there are reasonable grounds to suspect the individual is concealing illegal drugs.

Legality vs. Reasonableness

The New Zealand Bill of Rights Act, sections $20$ and $21$, focuses on the right to be secure against unreasonable searches, not illegal searches. Therefore, a search's legality and its reasonableness are distinct considerations. According to former Chief Justice Sean Elias, an illegal search is usually unreasonable unless the illegality is minor.

Conversely, a legal search can still be deemed unreasonable if, despite complying with the warrant's conditions, other circumstances make the search unreasonable. This distinction adds complexity, resulting in differing opinions about what constitutes reasonableness in search and seizure.

The Evidence Act and Improperly Obtained Evidence

The Evidence Act, particularly section $30(2)$, addresses evidence obtained improperly. If a judge determines that evidence was improperly obtained, they must decide whether excluding the evidence is proportionate to the impropriety.

The judge balances the impropriety of how the evidence was obtained against the court's processes. Therefore, illegally obtained evidence is not automatically excluded; the court weighs the circumstances of how the evidence was gathered.