IR-01-22-22523
7 October 2022
John Walter
[FYI request #20078 email]
Dear John
Request for information
I refer to your online Official Information Act 1982 (OIA) request of 29 July 2022, in
which you ask for:
“All Search parts 01-16. All Surveillance parts.”
In response to your request, please find attached copies of relevant chapters of the NZ
Police Manual:
•
Search Introduction
•
Search warrants
•
Warrantless powers to search places, vehicles and things
•
Consent searches
•
Carrying out search powers with or without warrants
•
Road blocks and stopping vehicles for search purposes
•
Methods for searching places and vehicles
•
Searching people
•
Production orders
•
Examination orders
•
Declaratory orders
•
Procedures applying to seized and produced things
•
Privilege and immunities under the Act
•
Reporting
•
Government agency requests for assistance with search warrants and production
orders
•
Property damage incurred during searches or exercise of statutory powers
•
Surveillance introduction
•
Categories of surveillance with a device
•
Surveillance device warrants
•
Surveillance by radar and from aircraft, drones etc
•
Surveillance squad
•
Surveillance reporting
•
Retention and destruction of surveillance data and documents
•
Privilege and immunities involving surveillance.
Police National Headquarters
180 Molesworth Street. PO Box 3017, Wellington 6140, New Zealand.
Telephone: 04 474 9499. Fax: 04 498 7400. www.police.govt.nz
You will notice that some of the text in the sections provided is in underlined blue type.
This text links to other information in the Police Manual, which has not been provided to
you.
Any redactions in the material provided relate to information that is withheld pursuant to
section 6(c) of the OIA, in that making that information available would be likely to
prejudice the maintenance of the law, including the prevention, investigation and
detection of offences.
You have the right to seek an investigation and review by the Ombudsman of this
decision. Information about how to make a complaint is available at
www.ombudsman.parliament.nz or freephone 0800 802 602.
Craig Scott
Detective Inspector
Police National Headquarters
Part 1 - Search introduction
Table of Contents
Table of Contents
2
Policy statement and principles
3
What
3
Why
3
How
3
Overview
4
Parts of the ‘Search’ chapter
4
This ‘Search introduction’ part
4
Related information
4
References to the "Act"
4
About the Search and Surveil ance Act 2012
5
Introduction to the Act
5
Purpose of the Act
5
Definitions
6
Table of definitions
6
General principles applying to entry and searches
9
Searching people
9
Entering and searching places, vehicles and other things
9
Lawfulness and reasonableness
10
Implied licence of entry to property
10
Search hierarchy
10
Decision records
10
Identification and notice
10
Force used against property must be reasonable
10
Search or seizure should be witnessed
10
Seized property must be documented
10
Health and safety duties
11
Maximising safety and minimising risk
11
Lawfulness and reasonableness of searches
12
Ensuring searches are lawful
12
Inevitable discovery
12
Search hierarchy
12
Ensuring searches are reasonable
12
Whether bail checks constitute a search
12
Offences under the Act
13
Offences by a subject of a search, examination or production order
13
Offences by constables
14
Service of orders and notices under the Act
15
Part 1 - Search introduction
Policy statement and principles
What
The
Search and Surveil ance Act 2012 brings together most Police and law enforcement search, seizure, surveil ance and
related powers. The Act sets out detailed rights, powers and obligations in relation to exercising those powers. The powers in
the Act are designed to make it easier to detect and apprehend offenders committing serious criminal
offences.
The Act also recognises the importance of rights and entitlements affirmed in other enactments, including the New Zealand
Bil of Rights Act 1990, the Privacy Act 2020, and the Evidence Act 2006.
Exercising Police powers have inherent safety risks and because of their intrusive nature have the potential to cause harm to
Police employees and the public. Police employees planning and undertaking the exercise of entry, search, inspection,
production, examination, seizure, road blocks and stopping vehicles must therefore mitigate these risks as much as possible
while enforcing the law.
The multi-part ‘Search’ chapter outlines the powers and obligations detailed in the Act and Police procedures in relation to
those powers. It also comprises:
the Act’s declaratory order regime enabling a judicial opinion as to lawfulness and reasonableness to be obtained in
advance of the use or undertaking of any new device, technique procedure or activity
Police policy for government agency requests for assistance with search warrants and production orders
Police policy relating to property damage incurred during searches or exercise of statutory powers.
Why
Key functions of the Police are law enforcement with targeting and catching offenders, crime and victimisation prevention,
delivering a more responsive Police service and the maintenance of public safety. As an employer, Police also has a
responsibility to ensure that its employees are safe when they undertake their duties.
Compliance with the guidance and procedures in the ‘Search’ chapter when carrying out powers of entry, search, inspection,
production, examination, seizure, road blocks and stopping vehicles wil :
ensure compliance with the
Search and Surveil ance Act 2012 and other enactments like the New Zealand Bil of Rights
Act 1990
maximise safety and eliminate or minimise the potential harm that executing the Act’s powers may have
increase the chance of successful prosecutions.
How
To meet its objectives and obligations when carrying out entries, searches, inspections, productions, examinations, seizures,
road blocks and stopping vehicles, Police wil :
ensure it has a lawful authority to conduct such activities and exercise any other incidental power in relation to those
activities, including the use of force
conduct risk assessments when planning the exercise of those powers and take action to mitigate risks to protect the
safety of the public and employees carrying out the Act’s powers.
only seize what it is lawful y entitled to seize
provide appropriate announcements and identification on the exercise of those powers
satisfy requirements detailed in the Act (e.g. notice and inventory requirements after search or seizure).
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Part 1 - Search introduction
Overview
Parts of the ‘Search’ chapter
The ‘Search’ chapter is comprised of multiple parts detailing Police powers and obligations under the Search and Surveil ance
Act 2012, including powers incidental to search, and related procedures. The parts are:
Search introduction
Search warrants
Warrantless powers to search places, vehicles and things
Consent searches
Carrying out search powers with or without a warrant
Roadblocks and stopping vehicles for search purposes
Methods for searching places and vehicles
Searching people
Production orders
Examination orders
Declaratory orders
Procedures applying to seized and produced things
Privilege and immunities under the Act
Reporting
Government agency requests for assistance with search warrants and production orders
Property damage incurred during searches or exercise of statutory powers
Note: Searches of persons subsequent to arrest, are not covered in this chapter. (Se
e Arrest and detention chapter)
This ‘Search introduction’ part
This Introduction part of the
'Search' chapter details:
definitions that apply in the Act
general principles applying to searches, and
requirements for ensuring the lawfulness and reasonableness of searches.
Related information
Further guidance on specific types of searches is available in other chapters. For example, see:
Crime scene examination and the
'Forensic evidence' chapters if you are conducting an investigative search at a crime
scene
Improvised explosive devices and bomb threats if you are searching for improvised explosive devices or dealing with
bomb threats.
References to the "Act"
References to "the Act" or to sections of an Act in the above chapters are to th
e Search and Surveil ance Act 2012 unless
otherwise stated.
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Part 1 - Search introduction
About the Search and Surveillance Act 2012
Introduction to the Act
The Search and Surveil ance Act 2012 brings most Police and law enforcement agency'
search, seizure and surveil ance powers under one Act. The legislation has wide reaching implications for Police, particularly
for frontline staff.
The Act clarifies the nature and scope of search and surveil ance powers. It makes the powers more accessible and easier to
understand for the agencies using them and for those subject to the powers. Some of the powers in the Act are completely
new, for example production and examination orders.
The Act recognises the importance of rights and entitlements affirmed in other enactments, including the New Zealand Bil of
Rights Act 1990, the Privacy Act 2020, and the Evidence Act 2006
The Search and Surveil ance Act 2012 al ows for the regulated use of technologies that were not previously regulated.
Purpose of the Act
Section
5 states that the purpose of the Act is to facilitate the monitoring of compliance with the law and the investigation and
prosecution of offences in a manner that is consistent with human rights values by:
modernising the law of search, seizure, and surveil ance to take into account advances in technologies and to regulate
the use of those technologies
providing rules that recognise the importance of the rights and entitlements affirmed in other enactments, including the
New Zealand Bil of Rights Act 1990, the
Privacy Act 2020, and the
Evidence Act 2006
ensuring investigative tools are effective and adequate for law enforcement needs.
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Part 1 - Search introduction
Definitions
Table of definitions
This table provides definitions for key terms used in the
Search and Surveil ance Act 2012 and throughout the 'Search' Police
Manual chapters. Further definitions are included where they are most relevant.
Unless otherwise stated, definitions can be found under section
3 of the Act.
Term
Definition
Applicant
Under section 97 applicant for a search warrant means:
a constable, or
any other person authorised to apply for a search warrant by the Search and Surveil ance Act or any
enactment specified in column 2 of the Schedule to which that provision applies.
Arms
Arms means any firearm, airgun, pistol, restricted weapon, imitation firearm, or explosive (as those terms are
defined in section
2 of the Arms Act 1983), or any ammunition.
Chief
Chief executive includes the Police Commissioner.
executive
Constable
'Constable' has the same meaning as in section
4 of the Policing Act 2008.
Controlled
'Control ed drug' has the same meaning as in section
2(1) of the Misuse of Drugs Act 1975.
drug
Enforcement 'Enforcement officer' means:
officer
a. a constable
(see definition above), or
b. any person authorised by an enactment specified in column 2 of the schedule, or by any other enactment
that expressly applies any provision in Part 4, to exercise a power of entry, search, inspection,
examination, or seizure.
Evidential
Evidential material, in relation to an offence or suspected offence, means evidence of the offence or any other
material
item, tangible or intangible, of relevance to the investigation of the offence.
Examination Examination order means an examination order made under section 38. (See Part 10
- Examination orders).
order
Informant
'Informant' is not restricted to a covert human intel igence source (CHIS).
'Informant' has the same meaning as in section
6(1) of the Criminal Disclosure Act 2008, i.e. a person who
provides verbal or written information (whether or not in recorded form) to a law enforcement officer.
Issuing
Issuing officer means:
officer
a Judge
a person, such as a Justice of the Peace, Community Magistrate, Registrar, or Deputy Registrar, who is
for the time being authorised to act as an issuing officer under section 108 of the Search and
Surveil ance Act 2009.
Judge
Judge means a District Court Judge or a Judge of the High Court.
Police bail
'Police bail' has the same meaning as in
Part 2 of the Bail Act 2000.
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Part 1 - Search introduction
Police
'Police employee' has the same meaning as in sectio
n 4 of the
employee
Policing Act 2008 and means:
a person employed under section
18 of the Policing Act (Commissioner may appoint Police employee);
and
except in
Part 4 (provisions relating to employment of Police employees) of that Act, includes a person
seconded to the Police.
Police
'Police uniform' has the same meaning as in section
4 Policing Act 2008. (See additional information about
uniform
uniform in "Entry, announcement and identification requirements" in Part 5 - Carrying out search powers with or
without a warrant).
Production
Production order means a production order made under section 74 of the Search and Surveil ance Act 2012.
order
(See Part 9 -
Production orders).
Reasonable Having a sound basis for believing that a situation
grounds to
or circumstance actual y exists e.g. reasonable grounds to believe that the search wil locate evidential material
believe
relating to that offence.
(
Definition not taken from Search and Surveil ance Act 2012)
Reasonable Having a sound basis for suspecting that a situation or circumstance is likely to exist, e.g. reasonable grounds
grounds to
to suspect that an offence has been committed.
suspect
(
Definition not taken from Search and Surveil ance Act 2012)
Remote
Remote access search means a search of an entity that does not have a physical address that a person can
access
enter and search. For example, an Internet data storage facility.
search
Road block
Road block means any form of barrier or obstruction preventing or limiting the passage of vehicles.
Rub-down
Rub-down search means a search described in sections
85,
86 and
87.
search
Seized items Seized items do not include anything made or generated by a person exercising a search or surveil ance power
(e.g. photographs, drawings, or audio or video recordings made by or on behalf of that person, or a forensic
copy of a computer hard drive).
Strip search Strip search means a search where the person conducting the search may require the person being searched
to undress, or to remove, raise, lower, or open any item or items of clothing so that the genitals, buttocks, or (in
the case of a female) breasts are:
uncovered; or
covered only by underclothing.
Thing
Includes any tangible or intangible thing e.g. an email address or information used to access an Internet data
storage facility.
Tracking
Tracking device means a device that may be used to help ascertain, by electronic or other means, either or
device
both of the fol owing:
the location of a thing or a person:
whether a thing has been opened, tampered with, or in some other way dealt with, but
does not include a vehicle or other means of transport, such as a boat or helicopter.
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Part 1 - Search introduction
Unique
Unique identifier, in relation to an enforcement officer, means an identifier, used to identify the officer, that is
identifier
not their name and that:
a. is assigned to them by the law enforcement agency that employs or engages them for the purposes of its
operations; and
b. uniquely identifies them in relation to the law enforcement agency.
Unlawfully at Unlawful y at large, in relation to a person, means that a person is any one or more of these:
large
a. a person for whose arrest a warrant (other than a warrant issued under Part 3 of the Summary
Proceedings Act 1957) is in force:
b. unlawful y at large within the meaning of the
Corrections Act 2004 or the
Parole Act 2002
c. a prison breaker within the meaning of section
119 of the Crimes Act 1961
d. an escapee from lawful custody within the meaning of sectio
n 120 of the Crimes Act 1961
e.
a special patient or restricted patient within the meaning of the Mental Health (Compulsory Assessment
and Treatment) Act 1992 who has escaped or failed to return on the expiry or cancel ation of a period of
leave
f.
a care recipient or special care recipient within the meaning of the Intel ectual Disability (Compulsory
Care and Rehabilitation) Act 2003 who has escaped or failed to return on the expiry or cancel ation of a
period of leave
g. a young person within the meaning of the Children, Young Persons, and Their Families Act 1989 who is
subject to an order made under section
311(1) of that Act and who is absconding from the custody of the
chief executive (as defined in that Act).
Vehicle
Vehicle means any conveyance capable of being moved under a person's control, whether or not the
conveyance is used for the carriage of persons or goods, and includes a motor vehicle, aircraft, train, ship, or
bicycle.
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Part 1 - Search introduction
General principles applying to entry and searches
Searching people
If your search of a place, vehicle or other thing extends to searching people, observe the general principles applying to
searches of people in the
Searching people chapter.
Entering and searching places, vehicles and other things
These general principles apply equal y to searches of places, vehicles and other things, whether conducted under warrant or
without a warrant.
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Part 1 - Search introduction
Principle
Al searches must be lawful and reasonable. (See
Lawfulness and reasonableness of searches in this
Lawfulness and chapter for more information).
reasonableness
Police employees have the right (implied licence) to enter a property to make enquiries. An occupier or
Implied licence owner has the right to revoke the implied licence of entry to that property at any time. See:
of entry to
property
Davey v Police [2019] NZHC 2107 that clarifies a casual guest may also have the right to revoke
the implied licence of entry, particularly when the tenants are not present or a young person who
lives at the property is likely to have the right when the tenants have left them in charge in their
absence. The decision in this case also confirmed that asking for a search warrant may be
sufficient to revoke the implied licence of entry.
Hal v R [2018] NZCA 279 exemplifies the difficulties that can sometimes arise when relying on
implied licence, and the case-by-case approach that should be taken when it comes to assessing
the scope of the licence. In the Court’s view, there were sufficient grounds in this case to apply for
a warrant.
A search for law enforcement purposes should, in the absence of exceptional/urgent circumstances
Search
recognised by the Act, be authorised by way of a warrant i.e. the warrant preference rule. See Smith v
hierarchy
Police [2019] NZHC 2111 and Lethbridge v New Zealand Police [2018] NZHC 2240.
You should always consider obtaining a search warrant first. If this is not practicable, consider using a
warrantless search power.
If there is a reason to search a place, vehicle or other thing and a warrantless search power exists, then
you should use that power instead of asking a relevant person for consent to conduct the search under
sections
91-96 of the Act.
You must record your reasonable grounds to suspect and/or believe that were known at the time a
Decision
warrantless power was used. You may need to rely on this record in court.
records
The owner / occupier/ or person in charge of a place, vehicle or thing being searched has the right to
Identification
know who is searching, the person's authority for searching and the reasons why they are conducting a
and notice
search, unless there are good reasons for not providing this information.
(See "Entry, announcement and identification requirements" in Part 5 -Carrying out search powers with
or without a warrant for information about your responsibilities to provide information when searches of
places, vehicles and things are conducted.
Any force used to gain entry to any place, vehicle or other thing for the purpose of carrying out your
Force used
search must always be reasonable in the circumstances. (s
131(3))
against
property must
be reasonable
Any search of a place, vehicle or other thing, or any removal or seizure of property during the search,
Search or
should be witnessed (if practicable) by another Police employee, enforcement officer from another
seizure should agency or person assisting with the search.
be witnessed
Al property removed or seized from a place, vehicle and other thing must be appropriately documented
Seized property and accounted for.
must be
documented
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Part 1 - Search introduction
Health and safety duties
Maximising safety and minimising risk
Maximising safety and eliminating or minimising risk at work is the responsibility of al Police employees and persons engaged
by Police to provide a service including contractors and their employees, trainees, interns and volunteers. It is delivered
through meeting the obligations under the
Health and Safety at Work Act 2015 and Police safety policies.
A key enabler is the application of the
TENR-Operational threat assessment in the workplace.
The expectation of the Commissioner and the Act is that persons in the workplace wil take reasonable care to ensure that
their acts or omissions do not adversely affect the health and safety of other persons, comply as far as they are reasonably
able to with any reasonable instruction that is given in order to comply with the
Health and Safety at Work Act 2015
and regulations under that Act. They wil co-operate with any reasonable policy or procedure relating to health or safety at the
workplace that has been notified to them and take immediate action to stop any perceived or potential breach of the act or if
impractical, immediately report the matter to a supervisor.
Health and safety should be an everyday conversation.
Relevant Police instructions include:
Hazard management
Health, safety and wel being
this 'Search' chapter in relation to the safe execution of search warrants, exercise of warrantless search powers, consent
searches, roadblocks, stopping vehicles for search purposes and searching places, vehicles and people.
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Part 1 - Search introduction
Lawfulness and reasonableness of searches
Ensuring searches are lawful
For any search to be lawful, you must:
exercise a warrantless power, or
execute a warrant power, or
conduct the search, examination or inspection with the person's consent.
Note: When a statutory power exists to search, you should use that power rather than relying on a consensual search, as
consent may be withdrawn by the person at any time. (See Part 4-
Consent Searches).
Inevitable discovery
If evidence obtained as a result of a breach of the New Zealand Bil of Rights Act 1990 would have been obtained even if the
breach had not occurred, the fact that it would inevitably have been discovered is a factor to be taken into account in
determining whether it is admissible under the balancing test in section 30 of the Evidence Act 2006. (See R v Wil iams [2007]
3NLR 207). However it wil not be admissible as a matter of course.
Search hierarchy
You must observe the
search hierarchy. If you conduct a search, or seize evidence without a warrant where you had the
opportunity to obtain a warrant, any subsequent court proceedings may deem the search unreasonable and any evidential
material obtained as a result of the search or seizure may be deemed inadmissible. You may also lose any evidence you
discover about any other offence.
Ensuring searches are reasonable
Ensure also that the search is reasonable under section
21 of the Bil of Rights Act 1990.
If the search is unlawful because it was conducted without a warrant, then it is very likely to be unreasonable as wel . However,
take note of
R v Jefferies [1994] 1 NZLR 290
which states: "Lawfulness is not inevitably determinative of reasonableness, or unlawfulness of unreasonableness". If
particular evidence would stil have been discovered if the unlawful search had not been conducted, then the evidence may
stil be deemed admissible.
Whether bail checks constitute a search
In
Warren v Commissioner of Police [2019] NZHC 1690 the Court concluded that bail checks performed by police were not
searches, as they consisted of officers simply meeting the electronical y-monitored bailee at the door of his address, to confirm
his presence. The level of interference with the bailee’s privacy was low; and given he had signed the Notice of Bail with
conditions, he had a reduced expectation of privacy. The judge went so far as to opine that general y, bail checks should not
prima facie be subject to section
21 of New Zealand Bil of Rights Act (NZBORA).
Checks which simply assess compliance with bail conditions wil usual y not constitute a ‘search’ for the purposes of NZBORA
— however, checks performed for the reason of col ecting intel igence or which intrude into a bailee’s privacy may constitute a
search.
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Part 1 - Search introduction
Offences under the Act
Offences by a subject of a search, examination or production order
Part 4 subpart 9 of the Search and Surveil ance Act 2012 provides for these offences by subjects of a search:
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Part 1 - Search introduction
Section Offence
Maximum penalty
on conviction
173
Failing to comply with examination order
Individual - 1
year
Fails to comply with an examination order without reasonable excuse.
imprisonment
Body
corporate -
$40,000 fine
174
Failing to comply with a production order
Individual - 1
year
Fails to comply with a production order without reasonable excuse.
imprisonment
Body
corporate -
$40,000 fine
176
Fails to comply with directions or leaves search when directed to stay
3 months
imprisonment
Without reasonable excuse:
fails to comply with a direction under section
117(1) (special powers where an application for
a search warrant is pending), or
leaves any place or vehicle at which the person is detained under sectio
n 118(1) (powers of
detention incidental to powers to search of places and vehicles).
177(1)
Stopping vehicles
3 months
imprisonment
Fails to stop as soon as practicable when required to do so by an enforcement officer
exercising a power to stop or search a vehicle,
and
knows or ought to know that the person exercising the power is an enforcement officer.
Note: A constable may arrest without warrant any person they have reasonable grounds to
suspect has committed an offence against this sub-section. (s
177(4))
177(2)
Stopping vehicles
3 months
imprisonment
Fails to comply with a requirement made by a constable to supply particulars (under section
10(1)(a) or
32(c);
and
knows or ought reasonably to know that the person imposing the requirement is a constable.
177(3)
Stopping vehicles
3 months
imprisonment
Fails to comply with a requirement made by an enforcement officer under section 128 to
remain stopped, and
knows or ought to know that the person imposing the requirement is an enforcement officer.
Note: A constable may arrest without warrant any person they have reasonable grounds to
suspect has committed an offence against this sub-section. (s
177(4))
178
Computer system searches
3 months
imprisonment
Fails without reasonable excuse to assist a person exercising a search power under section
130
(1) when requested to do so (relates to searches of computer systems or data storage devices - a
person may be required to assist with access to data).
Offences by constables
Part 4 subpart 9 of the Search and Surveil ance Act 2012 provides for these offences by subjects of a search:
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Part 1 - Search introduction
Section Offence
Maximum penalty on
conviction
175
False applications
1 year imprisonment
Makes an application containing any assertion or other statement known by the applicant to be
false, for:
an examination order
a production order
a search warrant
a surveil ance device warrant
a declaratory order
179
Disclosing information acquired through search or surveillance
Individual - 6
months
Knowingly discloses the substance, meaning, or purport of information acquired through:
imprisonment
Body corporate
the exercise of a search or surveil ance power
$100,000 fine
an examination order
a production order
the use of a device, technique, or procedure, or the carrying out of an activity specified in
a declaratory order otherwise than in the performance of the person's duty.
Note: The offence extends to a person assisting a constable or enforcement officer.
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Part 1 - Search introduction
Service of orders and notices under the Act
If you are serving an order or notice for the purposes of the Act:
on a...
it may be given ...
person
by delivering it:
personal y to the person, or
at the person's usual or last known place of residence or business, including by fax or by electronic
mail, or
sending it by prepaid post addressed to the person at their usual or last known place of residence or
business.
Note: Where an order or notice is sent by post to a person, it is deemed, in the absence of proof to the contrary,
to have been given on the third day after the day on which it was posted.
corporation
to an officer of the corporation, or
the registered office of the corporation
Note: Service is in the same manner as giving it to a person.
partnership
to any one of the partners
Note: Service is in the same manner as giving it to a person.
(s
181)
Printed on : 08/06/2021
Printed from :
https://tenone.police.govt.nz/pi/part-1-search-introduction
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Part 2 - Search warrants
Table of Contents
Table of Contents
2
Executive summary
4
Overview
5
Purpose of this chapter
5
Warrant preference rule
5
Application of Search and Surveil ance Act to search warrants
5
"Thing" defined
5
References to "the Act"
5
Related information
5
Applying for search warrants
6
When is a search warrant required
6
What does a search warrant authorise
6
Who may apply for a search warrant
6
Grounds for applying
6
Supervisor's approval required before applying
6
Remote access search approval
6
Requests from other agencies for Police to make application
7
How to apply for a search warrant
8
Mode of application
8
When are oral applications al owed?
8
Back-capturing oral applications in S&S System
8
Applications without personal appearance or oral communication
8
Written applications - Search and Surveil ance system
9
Applications must be made in the Search and Surveil ance system
9
Information that must be included in search warrant applications
10
Complex warrant applications requiring significant formatting
11
Manual application process
11
Covert searches
12
Rationale for covert searches
12
Supervisor's approval required before applying for a covert search warrant
12
Postponement of notice and inventory requirements
12
Cel phone and computer searches
13
Intangible material sought from cel phones and computers
13
Specify intangible material sought from seized cel phones or computers
13
Include communications sought on a cel phone in search warrants
13
Related information
13
What should be included and avoided in applications
14
Information about using surveil ance devices for safe execution of warrant
14
Consult specialist groups for safe execution of search warrant
14
Wording the search warrant application
14
Trespass onto other properties to execute search warrant safely
15
Including informant information in search warrant applications
15
Informant defined
15
Revealing identity of informants (not CHIS)
15
Including CHIS information
16
Good practice
16
Errors commonly made with applying for search warrants
17
De-confliction
19
De-confliction process outlined
19
"Open" document
19
"Closed" document
19
De-confliction action
19
De-confliction actions - closed document owner
20
Special powers when warrant applications are pending
21
Power to secure scenes
21
Issuing search warrants
22
Issuing officers
22
Limitation on jurisdiction of certain issuing officers
22
Which issuing officers should you approach?
22
Form and content of search warrants
22
Conditions may be specified in the warrant
22
Signing the search warrant
23
Application for search warrant refused
24
Who may execute a warrant and when?
25
Who may execute a search warrant?
25
Period warrant is valid for
25
When can search warrants be executed?
25
When are search warrants considered executed?
25
Multiple executions
25
Safe execution of warrants - entry to adjoining or neighbouring properties
26
Introduction
26
Application to include entry to adjoining or neighbouring properties
26
Wording application and warrants
26
Retention and security of warrants and copies of applications
28
Retention and security of search warrant applications
28
Procedure when security of applications may be compromised
28
Filing warrant documents after execution
28
Disclosure and requests for copies of search warrant applications
29
Quick reference guide: search warrants
30
Pre-application checks and set-up
30
Apply for search warrant
30
Approvals
30
Execute warrant
30
Search warrant notifications and reporting
31
Part 2 - Search warrants
Executive summary
Key points to note:
Unless it is impracticable in the circumstances, you must obtain a search warrant before searching a place, vehicle or
other thing.
You must have reasonable grounds:
to suspect an offence punishable by imprisonment has been, is being, or wil be committed,
and
to believe that the search wil find evidential material in respect of the offence, in the place, vehicle or other thing
specified in the application.
Where practicable, you must obtain written authority from a supervisor (sergeant or above) before applying. Include a
completed Planned Action Risk Assessment and CARD prompt (located in WORD> Police Forms> Search and
Surveil ance> Search warrants> General) when seeking approval.
Apply for a search warrant using the on-line Search and Surveil ance system fol owed by a personal appearance before
the issuing officer.
Written authority must be obtained from a Detective Senior Sergeant or above to apply for a search warrant that is to be
executed covertly. A covert search must be witnessed by a constable of or above sergeant level position or for the time
being acting in the position of a sergeant.
Police employees advised by email of a conflict where more than one document shares the same NIA target (e.g. two
search warrants for the same address) must act to resolve the potential conflict by contacting the other document
owner/supervisor and agree on a course of action.
Only an issuing officer may issue a search warrant.
Search warrants may be executed by any or al of the persons to whom it is directed, or any constable (whether or not it
is directed to that constable or to every constable).
When it is known in advance that Police employees wil need to enter onto properties adjoining or near the target
property for the safe execution of a warrant or AOS or TSU wil be involved in executing a search warrant, you should
seek a power of
entry to those adjoining/nearby properties. Applications and warrants must be worded accordingly.
The responsibility for retaining and securing a search warrant application once it has been presented for signing remains
with the issuing officer. It is not the responsibility of Police to retain and deliver an application for a search warrant to the
nearest Court.
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Overview
Purpose of this chapter
This chapter details:
who can apply for, issue and execute search warrants
the
grounds for applying and whose approval is required
procedures for
making search warrant applications
what should be
included and avoided in search warrant applications
what should be included in applications when searches are to b
e executed covertly or when
neighbouring properties are
likely to be trespassed
issuing search warrants
requirements for retaining documents.
Warrant preference rule
The High Court in
Lethbridge v New Zealand Police [2018] NZHC 2240 emphasised the importance of the warrant preference
rule, maintaining it would be applicable in circumstances where there is no urgency or compel ing practical reason not to obtain
a search warrant.
See
‘General principles applying to searches’ in the ‘
Part – Search introduction’ of the ‘Search’ chapter in relation to the
search hierarchy with searching places, vehicles or things.
Application of Search and Surveillance Act to search warrants
The
Search and Surveil ance Act 2012 (the Act) applies in respect of every warrant enabling the entry and search of any
place, vehicle or
thing except for search warrants issued under:
Criminal Proceeds (Recovery) Act 2009 (access the application in Police Forms>Financial Crime>Criminal Proceeds)
Films, Videos and Publications Classifications Act 2007 (access the application in Police Forms>Search and
Surveil ance>Search Warrants>Films, Videos, Publications)
Mutual Assistance in Criminal Matter Act 1992 (access the application in Police Forms>Search and Surveil ance>Mutual
Assistance).
Search warrants issued under these three Acts are not recorded under the Search and Surveil ance system.
"Thing" defined
In relation to search warrants, "thing" has a broad meaning. It includes anything whether tangible and intangible (e.g. an email
address or access information to an Internet data storage facility such as the IP address).
(s
97)
References to "the Act"
Al statutory references in this chapter are to the
Search and Surveil ance Act 2012 unless otherwise stated.
Related information
See Part 5 -
Carrying out search powers with or without a warrant for information about executing search warrants including:
entry and identification requirements
what you can do when exercising search powers
seizing property and accessing and seizing computer material
privilege relating to the exercise of search powers.
See also
Part 14 Reporting for information about when search warrant reports are required.
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Applying for search warrants
When is a search warrant required
Unless it is impracticable in the circumstances, you must obtain a search warrant before searching a place, vehicle or other
thing.
Where it is impractical to obtain a search warrant, you may exercise a warrantless power to enter and search under the Search
and Surveil ance Act 2012, if the statutory requirements are met and the use of the power is reasonable in al the
circumstances.
What does a search warrant authorise
A search warrant may authorise you to enter and search any place, vehicle or other thing, for evidential material in respect of
an offence punishable by imprisonment.
Who may apply for a search warrant
Any constable may apply for a search warrant.
Other persons (e.g. an enforcement officer such as a customs officer) are authorised to apply under other enactments. If those
enactments are specified in column 2 of the Act's Schedule, the provisions of the Act governing how search and seizure
powers are to be exercised apply to them.
(s
97)
Note: Private individuals, for example - private investigators, cannot apply for a search warrant. They may instead make a
complaint of an offence to you. If you are satisfied that there are sufficient grounds for obtaining a search warrant, then you
may apply for the search warrant for Police execution.
Grounds for applying
You can apply for a search warrant if you have reasonable grounds:
to suspect an offence punishable by imprisonment has been, is being, or wil be committed,
and
to believe that the search wil find evidential material in respect of the offence, in the place, vehicle or other thing
specified in the application.
(s
6)
See the definitions in
Part 1: Introduction for the meaning of "reasonable grounds to suspect" and "reasonable grounds to
believe" and the difference between the two.
Supervisor's approval required before applying
Where practicable, you must obtain written (includes electronic) authority from a supervisor of or above the position level of
sergeant to make a search warrant application and their approval for the application's content. A 'Planned Action Risk
Assessment and CARD prompt' must be submitted to the supervisor at the time of seeking authorisation. See the section
'Planning searches and assessing risk and community impact' in
Part 5: Carrying out search powers with or without warrants,
for guidance on search warrant risk assessment procedures.
Remote access search approval
If you intend to apply for and execute a remote access search warrant you must first seek advice from the Cybercrime Unit,
Digital Forensics Unit (DFU) or an Digital First Responders (DFR) before it is approved by a supervisor of or above the position
level of sergeant.
The execution of the search warrant should be overseen or conducted by staff from Cybercrime Unit, DFU or DFR due to the
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complexity of remote searches. An exception applies where delay would result in danger to persons or loss of evidential
material.
Requests from other agencies for Police to make application
Some agencies such as the Ministry of Social Development (MSD) and Ministry of Health (MoH) have investigative functions,
but do not have search warrant powers and therefore cannot apply for their own warrant, nor can they execute the warrant.
See Part 15 -
Government agency requests for assistance with search warrants and production orders for guidance on:
requests from agencies with no power to apply for search warrants or production orders to have Police obtain a search
warrant or production order
assisting law enforcement agencies that can apply for search warrants to execute their search warrants.
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How to apply for a search warrant
Mode of application
You should apply for a search warrant in writing using the on-line Search and Surveil ance system fol owed by a personal
appearance before the issuing officer. (See
Written applications - Search and Surveil ance system in this chapter).
However, if this is impracticable in the circumstances, you may, with prior agreement of the issuing officer:
make an application
oral y, e.g. by telephone or personal appearance, or
have your written application considered without a personal appearance before and/or without oral communication with
the issuing officer.
Written applications may be transmitted to the issuing officer electronical y via the Electronic Operating Model. (
Note: This
system is not yet operational).
(s
100)
When are oral applications allowed?
An issuing officer may al ow an application to be made oral y (e.g. in person or by telephone cal ) and excuse an applicant from
putting al or part of the application 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 warrant should be issued can be properly determined on the basis of an oral communication
or personal appearance,
and
al the required information (i.e. that required in a written application) is supplied to the issuing officer.
(s
100(3)
Consider seeking an oral search warrant before conducting a warrantless search. I
n R v Taylor [2019] NZDC 15086 the Court
emphasised the warrant preference rule that “If it is possible to obtain a warrant without prejudicing the purpose of a search, a
warrant is to be preferred even when a warrantless power is available.
If an oral application is al owed, the Issuing Officer must record the grounds for the application as soon as practicable.
A written search warrant must also be issued. It is not possible to simply rely on the Issuing Officer’s agreement to undertake
the activities authorised. The Issuing Officer must sign a warrant. For this reason, it wil be necessary for the applicant to
supply the Issuing Officer with a draft warrant or a template that can be populated.
Back-capturing oral applications in S&S System
When an oral application is made to the issuing officer, the applicant must enter (i.e. back capture) the application and the
outcome(s) of the search warrant(s) as soon as practicable in the online search and surveil ance system.
Back capturing oral applications early, enables:
the target history details to populate on any relevant future applications on the same target;
and
compliance with statutory requirements under the Act.
Applications without personal appearance or oral communication
An issuing officer may al ow an application without a personal appearance or oral communication if satisfied that:
the question of whether the warrant should be issued can be properly determined on the basis of the applicant's written
communication,
and
the information required for the application has been supplied to the issuing officer,
and
there is no need to ask questions of, or seek further information from, the applicant.
(s
100)(4)
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Written applications - Search and Surveillance system
Applications must be made in the Search and Surveillance system
Al written search warrant applications
must be made through the online Search and Surveil ance system fol owing the
procedures below. (If the system is unavailable for any reason, fol ow the '
Manual application process' in this chapter).
Note: A significant departure from these procedures and guidelines risks the warrant (and therefore the search) being deemed
unlawful. This in turn may lead to the exclusion of evidential material under the Shaheed balancing test. See section
30 of the
Evidence Act 2006.
Step
Action
Obtain initial Where practicable, obtain approval from a supervisor of or above the position level of sergeant before
approval
completing a search warrant application.
Set-up NIA
Set-up a NIA Case reference if one does not already exist.
case
Note: Avoid identifying target addresses for forthcoming warrant applications in the narrative of the NIA case as
this may compromise the security of subsequent warrant execution.
Assess risks Consider the risks associated with executing the warrant if it is issued and what wil be necessary to mitigate
any risk of harm to Police and others. See '
Risk assessment when planning searches' in 'Part 5 - Carrying out
search powers with or without a warrant'.
Note: A 'Planned Action Risk Assessment and CARD prompt' must be completed before the search warrant is
executed and where practicable, before the application is authorised.
Assess
Assess the impact of executing the search warrant on vulnerable people, community and interest groups. Plan
community
to eliminate or minimise compromising or undermining wider community support, confidence and reassurance.
impact
A Community Impact Assessment form (in Police Forms) must be completed before the search warrant is
executed, and where practicable, before the application is authorised. Mental y update this as the situation
changes during execution of the search warrant.
See:
'Risk assessment when planning searches' in 'Part 5 - Carrying out search powers with or without a
warrant'
the
'Community Impact Assessments (CIAs)' chapter.
Complete
Complete a search warrant application. Fol owing the guidance on the application form wil ensure the
application
information required by sections
98 and
103 in al warrant applications and search warrants is provided.
Note: The Search and Surveil ance system permits multiple warrants to be created from a single application.
See the 'Search and Surveil ance System User Guide' (PDF below) for more information about completing the
application.
Search and Surveil ance - User Guide 011214 (Final
v2.0).pdf
3.18 MB
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Complete
The Search and Surveil ance system manages any de-confliction by sending email messages to owners of
applications which share the same NIA target (e.g. two investigators who each have a search warrant for the
de-confliction same address).
If you are advised of a conflict, you must act to resolve the potential conflict. Seek advice from your supervisor
as necessary. Refer to the '
De-confliction' section in this chapter).
Application
The Search and Surveil ance system searches the system for other search warrant applications made during
history
the previous 3 months. The online system wil automatical y populate the details of previous applications on
your target in the last 3 months.
If application history exists, but the information is 'closed' the other applicant (document owner) wil be notified
of the new application and is responsible for determining whether or not to disclose historical information for
inclusion. See the '
De-confliction' section in this chapter for further guidance.
Complete NIA Check your target in NIA for details of any other previous applications made under these enactments in the
checks
previous 3 months, which are not recorded in the Search and Surveil ance system:
Criminal Proceeds (Recovery) Act 2009
Films, Videos and Publications Classifications Act 2007
Mutual Assistance in Criminal Matters Act 1992.
Note: If any previous applications within the 3 month period are relevant to your target, you must comment in
the "other information" field of your application, to ensure information provided to the Issuing Officer is complete
and accurate.
Record other Record details of any other applications in the previous 3 months that you are aware of that are not recorded in
applications the system (e.g. applications obtained by an agency other than Police).
Record the details in the "other information" field of your application.
Seek online Submit your search warrant application online to a sergeant or above (normal y your supervisor) for approval of
approval
the content of your application.
(Your supervisor may seek legal advice if considered necessary).
Review and revise the application as required.
Print and sign Once approved by a supervisor, print out the search warrant and application and sign the application.
the warrant
/application
Seek issue of Take your application to an
issuing officer.
warrant
Include these documents with your application:
a draft search warrant for the issuing officer's signature
a copy of the draft search warrant and notice to the occupier
al documents tendered in support of the application (annexes).
If making a written application or personal appearance before an issuing officer is impractical, see 'Mode of
application' in this chapter).
Information that must be included in search warrant applications
Section
98 prescribes the particulars that must be included in search warrant applications in reasonable detail.
For more detailed guidance see
'What should be included and avoided in applications' in this chapter.
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Complex warrant applications requiring significant formatting
The online Search and Surveil ance system does not accommodate complex and lengthy applications requiring significant
formatting involving tables etc. In these circumstances an appendix may be used to better present and clarify a complex
application.
The appendix must be referred to within the relevant paragraph of the application and must be attached to the application
when submitted to an issuing officer for consideration.
Manual application process
If the online system is not available, apply for a search warrant by fol owing these steps.
Step
Action
Complete
Complete these documents applying Microsoft ‘Word’ by setting out the format from previously used
documents
templates:
Planned Action Risk Assessment and CARD prompt
Search Warrant
Search Warrant Application.
Seek initial approval Obtain where practicable, written (includes electronic) authority from a supervisor (sergeant level or
above) to apply for a warrant and for the application's content.
Check application
Complete NIA checks to identify any other applications made in the previous 3 months and include details
history
in the "other information" section of your application.
Seek supervisor's
Seek your supervisor's approval for the content of the application and warrant. Your supervisor wil seek
approval
legal advice if necessary.
Print and sign the
Once approved by a supervisor, print out the search warrant and application and sign the application.
warrant /application
Seek issue of
Take your application to an
issuing officer for issuing.
warrant
Include these documents with your application:
a draft search warrant for the issuing officer's signature
a copy of the draft search warrant and notice to occupier
al documents tendered in support of the application (annexes).
Note: Ensure both the warrant and copy are signed by the issuing officer or has their unique identifier. If
the copy is overlooked, then photocopy the original with the signature or unique number.
If making a written application or personal appearance before an issuing officer is impractical, see 'Mode
of application' in this chapter).
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Covert searches
Rationale for covert searches
The purpose of al searches is to obtain evidential material which it is
believed on reasonable grounds wil be found in the
place, vehicle, thing or facility searched. Normal y, with standard searches, every effort must be made to ensure the searches
are executed in the presence of occupants.
However, there are exceptional cases, where it is desirable that the search not be revealed at the time the warrant is
executed. For example, to advance an investigation it may be necessary for entry to be gained and a search made in the
absence of the occupier and without their knowledge. This type of entry and search is referred to as a
covert search.
Supervisor's approval required before applying for a covert search warrant
Obtain written (includes electronic) authority from a Detective Senior Sergeant or above to apply for a search warrant that is to
be executed covertly. If the proposed search is deemed 'high risk', a Detective Inspector should be consulted.
Note: A covert search must be witnessed by a constable:
of or above sergeant position level, or
for the time being acting in the position of a sergeant.
Postponement of notice and inventory requirements
Sections
131 and
133 of the Act require the provision of a copy of the search warrant or if the search power is exercised
without a warrant, a written notice to the occupier of the place or the person in charge of the vehicle or other thing being
searched, no later than 7 days after exercising the power.
You may apply to a district court judge under sectio
n 134 to postpone compliance with these obligations on the grounds that
compliance would:
endanger the safety of any person, or
prejudice ongoing investigations.
See 'Postponing compliance with notice requirements' in
'Part 5 - Carrying out search powers with or without warrants'.
(ss
134 and
135)
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Cellphone and computer searches
When searching a cel phone or computer that has been seized through the lawful and successful execution of a search
warrant, it is not necessary to obtain a further warrant for each search that is conducted in accordance with the original search
warrant. See
R v R [2018] NZCA 341.
Note: If a search for other purposes is needed, an additional warrant may be required.
Intangible material sought from cellphones and computers
Al that is required when intangible material is sought from cel phones or computers, is that the search warrant expressly
al ows Police to access data, communications and images.
Specify intangible material sought from seized cellphones or computers
Specify in applications for search warrants and warrants what type on intangible material is being sought when seizing
cel phones or computers. It is insufficient to state that Police wish to seize a particular cel phone. It is necessary to specify in
the application and the warrant that intangible material on, or accessible from, the device is also sought.
See
Tupoumalohi v R [2020] NZCA 117 to guide you with identifying intangible material sought in warrants from cel phones
and computers.
Include communications sought on a cellphone in search warrants
Material to be searched on a cel phone should be described as specifical y as reasonably possible in the search warrant
application and search warrant, for example:
communication applications such as Facebook Messenger or similar type of application
diary records
bank account records.
The Court of Appeal in
Ruru v R [2020] NZCA 64 accepted that Police may not always be able to anticipate where and how
information wil be stored on a cel phone and that this should be reflected in the application.
Related information
See
‘Searching for and seizing computer material’ in ‘
Part 5 – Carrying out search powers with or without warrants’ of the
‘
Search’ chapter for general guidance about searching cel phones and computers.
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What should be included and avoided in applications
This section contains these topics:
Information about using surveil ance devices for safe execution of warrant
Wording the search warrant application
Including informant information in search warrant applications
Good practice
Errors commonly made with applying for search warrants
Information about using surveillance devices for safe execution of warrant
When it is known in advance that Police employees wil need to use visual surveil ance devices to look through the windows of
the target property (e.g. a dwel ing) in order to ensure the safe execution of a search warrant, it is good practice to inform the
issuing officer who authorises the search warrant.
Consult specialist groups for safe execution of search warrant
When specialist groups such as AOS or TSU wil be involved in the execution of a warrant, and where time al ows, they should
be consulted about how the warrant may be executed and whether use of surveil ance devices wil be necessary.
This wil not always be possible or practicable, particularly in situations of urgency. It is therefore accepted that employees may
need to briefly use surveil ance devices, for the safe execution of the warrant, even though no specific authorisation has been
obtained.
Wording the search warrant application
Fol ow this guide when wording your search warrant application:
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Step Action
1
Be clear in your application that you are not seeking a power to use a surveil ance device to obtain evidential material,
but rather you are advising the issuing officer of the proposed use of surveil ance devices for safety reasons.
Note: It is important to explain why the use of surveil ance devices is necessary and provide the issuing officer with the
relevant safety information.
2
Use this example as a guide and vary it according to your specific circumstances:
9. Additional information
I provide the fol owing additional information:
Use of surveillance device required for safe execution of warrant
Section 6(c) Official Information Act 1982
In terms of section 49 of the Search and Surveil ance Act 2012, it is not intended that the use of these or other similar
devices wil obtain information that is evidential material in respect of the offence(s) for which this warrant is sought.
9.2 This use of surveil ance devices for the purpose of ensuring the safe execution of the warrant does not amount to an
application or an authority to use surveil ance devices to obtain evidential material under the Search and Surveil ance Act
2012.
Trespass onto other properties to execute search warrant safely
See the section
'Safe execution of warrants - entry to adjoining/neighbouring properties' for further guidance with wording
application and warrant.
Including informant information in search warrant applications
Informant defined
Under section 3 of the Act, 'informant' has the same meaning as in section 6(1) of the Criminal Disclosure Act 2008, i.e. any
person who provides verbal or written information, whether or not in recorded form, to a law enforcement officer.
'Informant' is not restricted to Covert Human Intel igence Sources (CHIS).
Revealing identity of informants (not CHIS)
The names and other identifying details of informants who are not registered as CHIS may be withheld but care must be
exercised to ensure they are informants rather than witnesses, i.e. that they gave information with an expectation that their
identity would be protected (refer
R v Wil iams - see Law Notes -
30 May 2007 &
R v Kissling).
While the issuing officer may require you to supply further information concerning the grounds on which the warrant is sought,
they must
not, in any circumstances, require you to disclose the name, address, or any other identifying detail of an informant
unless, and only to the extent that the information is necessary for them to assess:
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the credibility of the informant, and/or
whether there is a proper basis for issuing the warrant.
(s
98(2)(b))
Including CHIS information
Fol ow these steps relating to CHIS information.
Step Action
1
Do not name a CHIS in the search warrant application or include any information that could lead to their identification.
Explain to the issuing officer that they have supplied the information on the basis of their identity being kept confidential.
2
If the issuing officer wishes to assess information relied on from a CHIS, then as far as possible, report information
received in the CHIS's own words.
3
You can use hearsay evidence to outline the grounds for the application, if it is of high reliability. Indicate its reliability by
stating:
the
CHIS's credibility
the
CHIS's reliability and whether they have given reliable information in the past, e.g. "In the past, Covert Human
Intel igence Source "A" has supplied Police with information that has proved to be reliable".
whether the information has been confirmed by other means.
Note: Current Police guidance on providing sufficient information to the warrant issuer about a CHIS is contained in Law
Notes issued in respect of R v Wil iams [2007] NZCA 52 (see Law Notes -
30 May 2007) and
R v Dunedin District Court,
so the warrant issuer can assess reliability.
R v Wil iams [2007] 3 NZLR 207 and
R v Kissling [2009] 1 NZLR 641 refer.
4
Be prepared to withdraw any search warrant application if the issuing officer demands details that identify the CHIS.
Good practice
Fol ow the steps in this table when applying for a search warrant. It outlines good practice for written applications and for oral y
communicating applications for search warrants.
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Step Action
1
Accurately describe the offence you believe the search relates to.
2
Explain what you expect to find and why, and where you expect to find it and why. Be as specific as possible.
However, if a specific description of the evidential material sought would endanger any person or prejudice ongoing
investigations (e.g. assist a suspect to suppress or destroy evidential material), consider seeking a postponement under
s134 from the obligation under s131(4) to provide a copy of the search warrant. (See 'Postponing compliance with notice
requirements' in 'Part 5 - Carrying out search powers with or without a warrant').
3
Ensure you describe the place where you expect to find the item accurately, such as the correct address of a house or
registration number of a car.
4
Include a description of al relevant information held or received (whether favourable or unfavourable) and al relevant
inquiries made.
5
When describing the information received, state the date when each piece of information was received, who received the
information, and in what circumstances. Provide an assessment (with reasons) of the significance and reliability of the
information.
6
Describe the relevant inquiries that have been made. State the date on which each inquiry was made, who made it, how
each inquiry was conducted, and the circumstances in which it was conducted. Explain (with reasons) the significance of
those inquiries.
7
Explain any delay between the last receipt of information and/or the last inquiry and the application for a warrant. If there
has been a delay in applying for a warrant, make any necessary inquiry to ensure everything contained in the application
is current and explain why that is so.
8
Fol ow the guidance on including information about
informants above.
9
Explain the reason for every expression of belief in the application. You should never express a conclusion without
saying why.
10
Scrutinise the grounds on which you apply for a warrant and consider, taking the role of 'devil's advocate', whether the
application meets the statutory criteria.
Errors commonly made with applying for search warrants
If you are the applicant for a search warrant,
do not:
apply for too wide a warrant (i.e. be specific about describing place, vehicle or other thing to be searched, or items to be
seized)
state conclusions without saying why
include standard form material on the criminal activity being investigated unless it is relevant to the particular application
leave out relevant information
include misleading information
rely on:
suspicion, rumour or gossip (in
Alexander v Police [2019] NZHC 2920 the Court found the warrant was unlawful y
issued on those grounds and, consequently, the evidence was unlawful y obtained and ruled inadmissible)
anonymous tips, (e.g. from Crimestoppers) wil usual y not form sufficient basis for obtaining a warrant (the
information must be considered sufficiently reliable; either by its nature, or by independent corroboration, see
Schaaf v R [NZHC] 176)
describe the belief of "the Police" or the belief of another person. Applicants must describe their own personal belief in a
state of affairs justifying the issue of a warrant, and the facts that make them hold that belief. If you refer to the belief of
another constable, or information received by another constable, that constable should be identified.
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Two other common faults can be avoided with your search warrant application by:
explaining any delay in applying for a warrant
saying why you believe a CHIS is reliable.
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De-confliction
De-confliction process outlined
Where more than one active document shares the same NIA target (e.g. two search warrant applications for the same
address), the de-confliction process wil prevent the interests of one investigation from conflicting with the interests of the
other.
The Search and Surveil ance system wil send a de-confliction email to the owners of documents (and their supervisors) which
share the same NIA target. If you are advised of a conflict, you must act to resolve the potential conflict.
This diagram il ustrates the document owners or 'users' who wil or wil not receive de-confliction messages.
Original Document
New Application
Who is notified by email
(User 1)
(User 2)
Open
Open
Both user 1 and 2
Open
Closed
User 2 only
Close
Open
User 1 only
Closed
Closed
Both user 1 and 2
"Open" document
A search warrant application prepared in the Search and Surveil ance system and entered as an "open" document wil result in
al document owners making or having made applications in the system to search the same target being notified.
Note: Applications that have been made in the system must be current for the document owner to be notified.
"Closed" document
A search warrant application prepared in the Search and Surveil ance system and entered as a "closed" document wil prevent
other document owners of "open" applications in the system intending to search the same target from being notified of the
"closed" document's existence.
Open→Open / Closed→Closed
Both document owners and their supervisors receive a message, if both documents are "open" or both are "closed".
De-confliction action
If you receive a de-confliction email you must contact the other document owner/supervisor and agree a course of action. This
wil depend on individual circumstances and on the potential that each application has to impact on the other investigation (if
executed).
The agreed outcome may involve:
joint execution of both warrants
one of the applications being delayed /withdrawn,
or
coordination of the execution of both warrants.
Closed→Open / and Open→Closed
If one owner has categorised their document as "open" and the other as "closed" (general y by an investigator in the covert
area), only the closed document owner (and supervisor) wil receive an email while the "open" owner wil not.
When a closed document owner (and supervisor) is made aware of another warrant application, the closed document owner
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and their supervisor must careful y consider the implications of how the new application and execution of the warrant would
affect their investigation and weigh this up against their obligation to inform the new applicant.
General y, the closed document owner or their supervisor wil contact the applicant, the applicant's supervisor or the
applicant's manager.
De-confliction actions - closed document owner
These actions may be taken by the closed document owner and their supervisor:
arrange for the "open" applicant to withdraw or delay their search warrant application, if execution may adversely affect
the ongoing covert operation
al ow the proposed application to proceed with the covert application history disclosed in the proposed application, or
if an application:
is in the preparatory stage and has
not been made by the closed applicant to an issuing officer, not advise the
"open" applicant, supervisor or their manager about the covert operation, the covert search warrant application or
execution of the warrant
has
already been made by the closed applicant to an issuing officer, then some action must be taken to advise the
open applicant, supervisor or their manager of the application to ensure the organisation does not mislead the
issuing officer in contravention of the statute when the open applicant presents their application for signing.
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Special powers when warrant applications are pending
Power to secure scenes
If a search warrant application is about to be made in relation to a place, vehicle or thing, or has been made but not yet
granted or refused by an issuing officer:
you may…
if you…
at any time that is reasonable in the circumstances:
believe that evidential material may be destroyed, concealed, altered,
damaged, or removed before a decision is taken to grant or refuse the
enter and secure the place, vehicle, or other
issue of a search warrant.
thing, and
secure any item(s) found there, and
direct any person to assist with the entry and
securing of the place, vehicle or other thing, or
the securing of items in it
You may only exercise these special powers until the first of the fol owing occurs:
the expiry of six hours from when the power is first exercised
the warrant is available for execution at that place or vehicle or in respect of that other thing
the application for a search warrant is refused.
(s
117)
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Issuing search warrants
Issuing officers
Only an issuing officer may issue a search warrant.
An issuing officer is:
a District Court or High Court Judge
a person, such as a Justice of the Peace, Community Magistrate, Registrar, or Deputy Registrar, who is
authorised by
the Attorney-General to act as an issuing officer (s
108)
Note: Not al Justices of the Peace, Community Magistrates, Registrars, or Deputy Registrars, are authorised issuing officers.
Limitation on jurisdiction of certain issuing officers
If an issuing officer is employed or engaged by a law enforcement agency, they must not consider or perform any function in
relation to any application made by a law enforcement officer employed or engaged by the same agency.
(s
109)
Which issuing officers should you approach?
You should fol ow these steps when deciding which issuing officer to use when applying for a search warrant:
Step Action
1
Always check the current list of authorised issuing officers in your district as they change from time to time.
2
If your application references information from a sensitive source, make it to an issuing officer in the District or Hight
Court. Otherwise use whichever issuing officer is most convenient. During office hours this wil usual y be an issuing
officer in the District Court, however applications made outside court hours or at times of high court demand should be
made to another issuing officer.
3
If for the reasons given in step 2 it is more appropriate to take your search warrant application to the court, use an
issuing officer from a District or High Court depending on where resultant proceedings are likely to be heard.
Note: There are no issuing officers in the High Court other than High Court Judges.
4
Endeavour to give notice to the issuing officer before applying for a search warrant, unless it is impracticable to do so.
Note: The application for search warrant must always be left with the issuing officer to file at the nearest court. Police
employees must not deliver the application on behalf of the issuing officer.
Form and content of search warrants
Every search warrant must be in the prescribed form and be directed to every enforcement officer who has authority to execute
the warrant.
Section 103(4) lists the particulars that must be included in every search warrant in reasonable detail. Fol owing the guidance
on the search warrant application form and the guidance in this chapter on what should be
included and avoided in
applications, wil ensure the information required by section 103 is provided.
(s
103)
Conditions may be specified in the warrant
An issuing officer may specify in the warrant any conditions they consider to be reasonable including (without limitation):
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any restriction on the time of execution that is reasonable
a condition that the occupier or person in charge of a place must provide reasonable assistance to a person executing
the warrant if, in the absence of such assistance, it would not be practical to execute the warrant without undue delay.
Note: A person is not required by any condition imposed to give any information that may incriminate them (
s103(7))
a condition requiring the Commissioner to provide them with a search warrant report within a specified period. See
'Search warrant reports may be required by issuing officers' in '
Part 14- Reporting'.
(s1
03(3)(b))
Note: You must update the search warrant in the Search and Surveil ance system with the details of:
whether or not the search warrant is granted, refused or withdrawn before presenting to an issuing officer; and
any conditions imposed by an issuing officer.
Signing the search warrant
Ensure the issuing officer signs or uses their unique identifier on the original search warrant and the duplicate copy of the
warrant for the occupier of a place or person in charge of a vehicle. If the signing is overlooked on the duplicate copy, then
photocopy the original with the signature or unique identifier and leave that photocopy with the occupier or person in charge of
the vehicle.
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Application for search warrant refused
Fol ow these steps if an issuing officer, after considering your application, refuses to sign the accompanying search warrant:
Step Action
1
Note and record the issuing officer's reasons for refusing to issue a search warrant.
2
Consider the reasons for refusal and if those reasons:
can be fixed, then:
address al the reasons for the refusal
redraft the application and proposed search warrant, ensuring the reasons for refusal are addressed in the
appropriate paragraphs of both documents
re-submit the application to the
same issuing officer who refused to issue the search warrant. If that issuing
officer is not available, you
must inform the second issuing officer of the reasons why the first issuing officer
refused to issue a search warrant
cannot be fixed, then:
re-evaluate whether or not to continue your investigation without the search warrant being issued, or
if the reasons do not appear to be justified, prepare a report and submit the file through your supervisor to
Legal Services for direction.
Note: There is no hierarchy of "issuing officers" under the Act. A High Court Judge has the same status as a District Court
Judge or Registrar. If for instance, a District Court Judge refuses to issue a search warrant, do not attempt to make the same
application to a High Court Judge.
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Who may execute a warrant and when?
Who may execute a search warrant?
Search warrants may be executed by:
any or al of the persons to whom it is directed, or
any constable (whether or not the warrant is directed to that constable or to every constable).
(s
103(3)(a))
If a search warrant is executed covertly, a constable of the position level of sergeant or above, or an employee acting in that
capacity must be present.
If a remote access search warrant is executed, the execution must be overseen or conducted by staff from Cybercrime Unit,
Digital Forensics Unit or a Digital First Responder (DFR). Exceptions to this are only to be made where delay would result in
danger to persons or loss of evidential material.
To execute a search warrant you must be in possession of the original search warrant, or if impractical a copy of a type
permitted by s
105.
Period warrant is valid for
The period during which the warrant may be executed may be:
a period specified by the issuing officer not exceeding 14 days from the date of issue, or
a period specified by the issuing officer not exceeding 30 days from the date of issue, if you have justified why this is
necessary and the issuing officer is satisfied that more time is necessary for execution.
(s
103(4)(h))
When can search warrants be executed?
Search warrants can be executed at any time that is reasonable in the circumstances, unless the issuing officer has restricted
the time of execution as a condition of the warrant (e.g. that it only be executed between the hours of 8.00am and 6.00pm).
When are search warrants considered executed?
A search warrant is executed when you and any person assisting you:
have seized al the evidential material specified in the search warrant, or
leave the place, vehicle or other thing searched and do not return within four hours.
The warrant is not executed if you leave but one of your assistants remains at the place, vehicle or other thing searched.
Multiple executions
A search warrant may only be executed once, unless execution on more than one occasion is applied for and justified and
authorised by the search warrant.
If a warrant authorises execution more than once, it may be executed the number of times specified in the warrant, until:
al evidential material specified in the warrant is seized, or
the time limit (14 days or, any longer period specified by the issuing officer not exceeding 30 days from the date of issue)
has expired.
(ss
103(4)(h) and
106)
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Safe execution of warrants - entry to adjoining or neighbouring
properties
Introduction
When it is known in advance that Police employees wil need to enter onto properties adjoining or near the target property for
the safe execution of a warrant or AOS or TSU wil be involved in executing a search warrant, you should seek a power of
entry to those adjoining/nearby properties.
Where specialist groups such as AOS or TSU wil be involved in a warrant's execution and, where time al ows, they should be
consulted about how the warrant may be executed and whether entry to adjoining properties may be necessary.
This wil not always be possible or practicable, particularly in situations of urgency. It is therefore accepted that Police staff may
need to briefly enter onto properties adjoining or near the target property, for the safe execution of the warrant, even though no
specific authorisation has been obtained.
Application to include entry to adjoining or neighbouring properties
If a warrant is to be sought to
enter and search for evidential material located at one address (e.g. 5 East Street), but in the
process of executing the warrant, Police need to trespass on adjoining or neighbouring properties (e.g. 3 and 7 East Street),
then the warrant application should also seek a warrant to only
enter the adjoining or neighbouring properties (e.g. 3 and 7
East Street).
The justification for this is within sections
98(1)(d) and
103(4)(f) in the case of search warrants.
Wording application and warrants
Make it clear that you are seeking a power of entry only in respect of the adjoining or neighbouring properties for safe
execution of warrant and explain why and provide the Judge or issuing officer with the relevant legal basis. Where appropriate,
also make it clear that the entry to dwel ings on the adjoining or neighbouring property is not sought.
For the search warrant application form, use 'Additional information' section (search warrants at paragraph 9). For example:
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9. Additional information
I provide the fol owing additional information:
Power of entry on other properties required for safe execution of search warrant
9.1 The Armed Offenders Squad wil be assisting with execution of this warrant. In order to ensure safe execution of the
warrant, the Armed Offenders Squad may need to enter onto the fol owing properties adjoining the property to be searched:
a. [address].
b. [address].
c. [address].
(the "neighbouring properties")
9.2 The reasons why Armed Offenders Squad may need to enter these neighbouring properties are:
a. [explain why e.g. why is Armed Offenders Squad required in the first place (e.g. risks associated with the particular
individual or address), why these particular properties need to be entered. Could be to do with location of property to be
searched (e.g. in rear section not easily viewed from street) or need to be able to observe the property from different
sides/angles or to maintain cordon around person who could be armed. Should have a paragraph dedicated to each
property and why it is necessary to enter that property. Should explain in relation to each property what the entry wil
involve (e.g. just within the yard - don't need to enter premises).]
b. etc
9.3 This power to enter the neighbouring properties is sought in reliance on sections 98(1)(d) and 103(4)(f) of the Search and
Surveil ance Act 2012, which distinguishes between places that may be entered and places that may be entered and
searched
For the warrant form, insert details of additional properties to be entered at paragraph 6. For example:
6. This warrant also authorises you at any reasonable time, to enter (but not search) the fol owing premises or areas:
6.1 the property (but not the dwel ing) at [address]
6.2 the property (but not the dwel ing) at {address] etc.
for the sole purpose of ensuring the safe and effective entry onto, entry into, or search of any place, vehicle or thing specified
in paragraph [ ].
Note: If practicable seek legal guidance with wording the application and warrant for entry to adjoining or neighbouring
properties.
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Retention and security of warrants and copies of applications
Retention and security of search warrant applications
Occasional y issues arise relating to Police concerns over security of a search warrant (or production order) application before
its execution. Those concerns may include:
safety of Police employees, issuing officers, victims and public
integrity of the Police operation being compromised
security of information, and
sensitivity of the investigation.
The responsibility for retaining and securing a search warrant (or production order) application once it has been presented for
signing remains with the issuing officer.
Under section
73 (retention of production order application) and section 101 (retention of search warrant application) a written
application for a search warrant (or production order) or in the case of an oral application, then the record of the application
made to
any issuing officer must be retained under the control of the Registrar of the District Court closest to the place at
which the application is made, whether or not the application is granted or refused.
Procedure when security of applications may be compromised
Fol ow these steps whenever the security of search warrant (or production order) applications retained by an issuing officer
may be compromised:
Step Action
1
Assess al security risks relating to the application, issuing of warrant (or order) and retention of application. This
risk assessment must be made before approaching the issuing officer.
If there are any concerns about:
safety of any persons
integrity of the Police operation being compromised
security of the information
sensitivity of the investigation
consider having the application issued by a Judge or Registrar of the District Court rather than a Justice of the Peace or
other authorised person, as the application can be secured immediately at the court.
2
Ful y communicate al security issues to the issuing officer.
3
Remember, it is the issuing officer's role to secure the application once it has been presented for signing. The issuing
officer is solely responsible for ensuring that the application is lodged and properly secured at the nearest court.
Note: It is not the responsibility of Police to retain and deliver an application for a search warrant to the nearest Court.
4
Any issues around security of applications, other documents or the safety and integrity of Police operations relating to
issued search warrants (or production orders) must be referred immediately to the O/C CIB for the area and resolution
sought through the local Court Manager.
Filing warrant documents after execution
You must retain these documents in the relevant NIA case file (whether in electronic form or otherwise):
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Police policy
if applicable, written authority from supervisor authorising application for search warrant
requirement
Legislative
a copy of the search warrant application, if made in written form, otherwise a record of the oral application
requirement
made (
Note: If the application contains sensitive information, consider securing it elsewhere and
endorsing the file accordingly);
(s
101)
copies of al documents tendered in support of the application
the search warrant
a copy of any search warrant report required by the issuing officer under section 104.
Note: The specified documents must be retained until the later of:
conclusion of any proceedings
destruction of the documents in accordance with policy
'Retention and disposal of Police records'.
Disclosure and requests for copies of search warrant applications
Search warrant applications are subject to disclosure under the
Criminal Disclosure Act 2008 and as a general rule are
disclosed. Applications may also be the subject of a request under the
Official Information Act 1982 or the
Privacy Act 2020.
Search warrant applications containing sensitive information could be withheld under al three Acts (Criminal Disclosure Act
2008, Official Information 1982 and Privacy Act 2020) if the release would be likely to prejudice the maintenance of the law
(this would apply to CHIS information).
Before any of the contents are released you must:
consult the constable who made the search warrant application, and
if the disclosure may reveal the identity of a CHIS, then also obtain approval from the O/C Human Source Management
Unit (HSMU); or
seek advice from a legal advisor.
For detailed guidance relevant to:
disclosure of search warrants, see the 'Further restrictions on disclosure' in the
'Criminal disclosure' chapter
personal and official information requests, see the
‘Privacy and official information’ Police Manual chapter.
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Quick reference guide: search warrants
Pre-application checks and set-up
Step Action
1
Set-up a NIA Case reference if one does not already exist.
Note: Avoid identifying target addresses for forthcoming warrant applications in the narrative of the NIA case as this may
compromise the security of subsequent warrant execution.
2
Check NIA for any notings of search warrants issued under other Acts in the previous three months. This information
must be included in the application.
3
Complete any other background checks and TENR (Planned Action Risk Assessment and CARD prompt) and
Community Impact Assessment as required.
Apply for search warrant
Step Action
1
Create the warrant application using the Search and Surveil ance (S&S) system.
2
Review and fol ow-up on any de-confliction notifications advising of other active warrant applications for the same
target(s). Contact the other applicant(s) and determine whether or not to proceed.
3
Review any information in the three-month history section of the application and carry out NIA checks to determine if it is
relevant to your target or not. Include notes accordingly in the 'Additional Information' section of the application to provide
clarity for the issuing officer.
Approvals
Step Action
1
Submit the draft application to the approving officer (sergeant or above). Review and revise as required.
2
Finalise the application and recheck the three-month history. Entries in this section wil be automatical y refreshed prior to
printing and may change as time progresses during preparation of the warrant.
3
Print the application and warrants, sign the application and present them for authorisation to an issuing officer.
4
Review/revise the warrant as required, to gain authorisation.
5
Record any conditions specified by the issuing officer in the Search and Surveil ance system.
Execute warrant
Step Action
1
Execute the search warrant as authorised.
2
Complete an inventory of items seized (POL268) if any.
3
As soon as practicable, provide a copy of the search warrant and inventory to the occupier of the place/person in charge
of vehicle, or if not present, leave in a prominent place.
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Search warrant notifications and reporting
Step Action
1
Record the outcomes and other information in the Search and Surveil ance system.
2
Complete and submit the electronic post warrant intel igence noting (‘OnDuty Notings’) notification on your mobility
device.
3
Where applicable, complete a notification using the 'Create Notification' feature on the Microsoft Outlook Bul etin Board
to notify relevant groups about drugs, firearms, children, etc.
4
If required by the issuing officer, produce a search warrant report to the issuing officer using the Search and Surveil ance
system.
Printed on : 08/06/2021
Printed from :
https://tenone.police.govt.nz/pi/part-2-search-warrants
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Part 3 - Warrantless powers to search places, vehicles
and things
Table of Contents
Table of Contents
2
Executive summary
4
Overview
5
Purpose
5
Search hierarchy
5
Warrantless powers to search people
5
Seizure and other powers incidental to powers of search
5
Case Law
5
Warrantless search on CheckPoint
5
Written report to the Commissioner on exercise of warrantless search power
6
References to the Act
6
Entry and search to effect arrest
7
Entry to arrest person unlawful y at large
7
When entry to premises required to execute warrant to arrest
7
Unlawful y at large defined
7
Entry to avoid loss of offender or evidential material
7
Applying section 8
8
Case law
9
Emergency powers
10
Entry to prevent offence or respond to risk to life or safety
10
Case law
10
No power of detention
10
Entry and search for evidential material (serious offences)
11
Entry and search of places to find and avoid loss of evidential material
11
Searching people in public place for evidential material
11
Entry and search of vehicles in a public place for evidential material
11
Warrantless searches associated with arms
12
Arms in places or vehicles
12
Approval for arms-related searches of places and vehicles
12
Searching people associated with arms
12
Warrantless searches associated with drugs
13
Search of places and vehicles
13
Approval for drug related searches under sections 20 and 21
13
People found in or on places or vehicles
13
Searches of people associated with drugs
13
Police and Customs powers relating to delivery of drugs
13
Warrantless searches for offensive weapons
15
Searching vehicles for offensive weapons
15
Definitions
15
Searching people for offensive weapons
15
Searching vehicles for stolen property
16
Warrantless search of vehicle for stolen property
16
Case law
16
Warrantless searches if offence against s 78 or 78AA of Crimes Act 1961 suspected
17
Warrantless search of place, vehicle or thing
17
Entry and search of places and vehicles incidental to arrest
18
Entry and search of places after arrest
18
Entry and search of vehicles after arrest
18
Case law
18
Tracking stolen property
19
Acting on tracking information
19
Powers under the Search and Surveil ance Act
19
Is tracking stolen property surveil ance or search?
19
Warrant or warrantless power?
19
Determining time and delay for tracking stolen property
19
Reporting warrantless searches of places, vehicles and things
21
Reporting warrantless searches to the Commissioner
21
Quick reference guide: warrantless use of powers notifications and reporting
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Part 3 - Warrantless powers to search places, vehicles and things
Executive summary
Key points to note:
Police may exercise
warrantless powers to enter and search places, vehicles and things in a number of situations
including:
to effect arrest or incidental to arrest
in emergency situations
to search for evidential material in serious offences
to search for arms, drugs or offensive weapons.
If you have a warrantless power to search places, vehicles and things you may also
seize anything that is the subject of
the search or that may lawful y be seized.
Warrantless search powers have a number of associated general powers (s110) that can be used when exercising a
particular search power, e.g. to enter, request assistance, or use force if necessary (property only).
Obtain approval from a sergeant or above before exercising any warrantless search powers in relation to arms or drugs,
unless impracticable in the circumstances.
It is normal y not necessary for a tracking device warrant to be obtained, when a victim provides tracking
information/intel igence on the whereabouts of their stolen property (e.g. mobile phone) to Police. Depending on the
circumstances and urgency, a search warrant or warrantless search power may be exercised instead.
See
‘Searching people’ for when people may be searched without warrant.
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Part 3 - Warrantless powers to search places, vehicles and things
Overview
Purpose
This part of the
‘Search’ chapter outlines the powers Police may exercise
without warrant to enter and search places,
vehicles and things under the
Search and Surveil ance Act 2012.
Search hierarchy
Remember, you should always consider obtaining a search warrant first before exercising a warrantless search power. This
may entail posting a guard to secure the scene while obtaining a warrant under section
117 of the Act. If this is not practicable,
consider using a warrantless search power.
See:
Search warrants for guidance on seeking a search warrant authorising the searching of places, vehicles and things
Law Notes:
R v Bailey [2017] NZCA 211 relating to
direction to stop car so as to identify occupants and warrantless
search of vehicle
McGarrett v R [2017] NZCA 204 relating to
stopping a car on drug run using the Land Transport Act and
warrantless search of vehicle.
Warrantless powers to search people
Warrantless powers to search people are outlined in Part 8 -
Searching people. These include searches of a person:
in custody and who is or is about to be locked up (s
11)
found in a public place for evidential material (s
16)
for arms (
s18)
in relation to drugs offences (ss
21,
22 &
23)
for knives, offensive weapons and disabling substances (s
27)
after arrest or detention (ss
85 &
88).
Seizure and other powers incidental to powers of search
Al of the powers to search places, vehicles and things outlined in this
'Search' part have:
the associated power
to seize anything that is the subject of the search or anything else that may lawful y be seized
a number of other associated general powers that can be used when exercising a particular search power.
(s
110)
Case Law
The
Aranguiz v Police [2019] NZHD 1765 case demonstrates the importance of the timing of seizures when operating under
warrantless powers. In this case the officer seized a cel phone in a public toilet to search for intimate visual recordings before
the person had been arrested for an offence of making such recordings, despite their being ample evidence to do so.
These other powers are described in 'Powers incidental to search' in
'Carrying out search powers (with or without a warrant)'.
That part of the ‘Search’ chapter also outlines procedures for:
conducting searches of places, vehicles and things
giving owners / occupiers notices about the search and an inventory of what was seized fol owing a search.
Warrantless search on CheckPoint
The warrantless search application on CheckPoint application informs constabulary employees of their powers and obligations
under the
Search and Surveil ance Act 2012. The application provides pathways to fol ow when using warrantless powers in
various categories:
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Part 3 - Warrantless powers to search places, vehicles and things
persons
vehicles
places.
The application leads the user through a range of potential scenarios to meet the fast-changing frontline situations.
Written report to the Commissioner on exercise of warrantless search power
A written report to the Commissioner must be prepared as soon as practicable whenever a warrantless search power is
exercised (
s169). Police policy requires this is completed before the end of shift. Failing to prepare a report wil not on its own
render a search unlawful but could lead to judicial criticism. Record the use of powers in the ‘OnDuty’ application for
warrantless notifications.
See ‘Part 14 – Reporting’ in the ‘Search’ chapter for further guidance with the reporting requirements under the Search and
Surveil ance Act 2012.
References to the Act
Al statutory references in this chapter are to the
Search and Surveil ance Act 2012 unless otherwise stated.
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Part 3 - Warrantless powers to search places, vehicles and things
Entry and search to effect arrest
Entry to arrest person unlawfully at large
If you have reasonable grounds to...
you may…
suspect that a person is
unlawful y at large,
enter the place or vehicle without warrant to search for and arrest the
and
person.
believe that the person is in a place or vehicle
(s
7)
When entry to premises required to execute warrant to arrest
‘
Unlawful y at large’ under section
7 includes the situation where an arrest warrant is in force for that person. Sectio
n 162 of
the Criminal Procedures Act 2011 (CPA) sets out the procedures that must be fol owed when a constable executing a warrant
issued under the CPA needs to enter onto premises to make the arrest.
It is sufficient to show a copy of the warrant, which can include a copy on a Police mobility device. This requirement applies
regardless of whether the occupier is also the subject of the arrest warrant.
The operational practicalities of showing an electronic copy of an arrest warrant rather than providing a physical copy should
be considered. For example, a constable may:
in the particular circumstances, not be comfortable handing their device over to al ow the occupier to view a copy of the
warrant
need to stand with the occupier scrol ing through their device, enlarging or reducing parts of the warrant as necessary so
that the occupier can read it
need to take time to explain the contents of the warrant to the occupier, if they have difficulty reading or understanding
the on-screen text.
Showing an electronic copy of a warrant to arrest on a device wil suffice when executing a warrant under sectio
n
162 of the
CPA. However, it remains best practice for Police to have the original warrant or a copy of the warrant in their physical
possession, especial y if the matter is not urgent, before entering premises.
Note: Section
162 of the CPA has more specific requirements than section
7 of the Search and Surveil ance Act (S&SA) for
warrants issued under the CPA. The legal principle if that the specific (section
162 CPA) overrides the general (section
7
S&SA). This means that where an arrest warrant is issued under the CPA, the constable must fol ow the specific process set
out in section
162.
See ‘Warrants to arrest and 162 of the Criminal Procedure Act – showing an electronic copy to the occupier where entry to
premises is required’ for further guidance from Legal Services.
Unlawfully at large defined
"Unlawful y at large" means that the person:
has an arrest warrant (excluding a fines warrant)
has escaped from prison or is absent without leave
has escaped from lawful custody, e.g. Police cel s or Police car
is a special or restricted patient and has escaped or failed to return from leave
is a care or special care recipient (with an intel ectual disability) and has escaped or failed to return from leave
is a young person who is the subject of a Youth Court "Supervision with residence" order and they are absconding from
Oranga Tamariki custody.
(This definition is adapted from the definition in section
3 of the Act).
Entry to avoid loss of offender or evidential material
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Part 3 - Warrantless powers to search places, vehicles and things
If you have reasonable grounds to...
you may...
suspect that a person has committed an
enter that place or vehicle without warrant,
and
offence punishable by imprisonment and
search for and arrest the person you suspect has committed the offence.
for which they may be arrested without
warrant,
and
Note: You
may not search for evidential material unless an arrest is made and
believe that the person is in a place or a search incidental to that arrest is undertaken under sections
83-88.
vehicle,
and
believe that if entry is not effected
See
Round v Police [2020] NZHC in relation to admissibility of evidence
immediately, either or both of the
obtained under section
8 in drink driver matter. The findings confirm Police may
fol owing
may occur:
only enter a property under section
8 for the purposes to search for and arrest a
the person wil leave the place or person.
vehicle to avoid arrest
evidential material relating to the
offence for which the person is to
be arrested wil be destroyed,
concealed, altered or damaged
(s
8)
Applying section 8
Section
8 only empowers police to search for and arrest a person. That must be the officer’s intention at the time of entry.
Section 8 only applies where:
Police have reasonable grounds to suspect (i.e. think it is likely) that a suspect has committed an imprisonable offence
for which they can be arrested without warrant;
Police have reasonable grounds to believe (i.e. are confident it is the case - merely thinking it possible or likely is not
sufficient) the suspect is in the vehicle or property;
Police have reasonable grounds to believe if entry is not immediately effected either:
the person wil leave there to avoid arrest; or
evidential material relating to the suspected offence wil be destroyed, concealed, altered or damaged.
The observed behaviour of the suspect just before entry, but also their prior behaviour may be relevant to assessing whether
they wil leave to avoid arrest. For example, it wil be relevant if the suspect has failed to stop when legal y required; are
ignoring Police communication; or are known to be actively trying to evade Police.
The effect of outside forces on evidential material, such as the natural dissipation of alcohol in a person’s blood stream, may
justify the belief that evidential material wil be destroyed etc. – the feared harm need not be harm caused by the suspect or
another person.
Because of the warrant preference rule, if it is practicable for Police to obtain a warrant, they must not exercise a warrantless
power, even if the requirements for such a search/entry are made out.
If immediate entry is not required because the person is unlikely to leave the address to avoid arrest, but there are reasonable
grounds to believe immediate entry is required to prevent the loss of evidential material relating to the offence for which the
person is to be arrested, as part of the assessment Police should consider whether:
the oral application process (section
100) which may enable a warrant to be obtained without a written application,
including over the phone, would enable a warrant to be obtained without compromising the entry/search; and/or
the ability to secure a scene while a warrant is obtained (sectio
n 117), thereby preserving evidential material, would
enable a warrant to be obtained without compromising the search:
factors such as whether it is realistic and practical to place a security guard at a scene given resourcing/ time of
day/ court availability wil be relevant when determining whether this is a viable option.
Also consider whether it is practicable to seek an arrest warrant (section
s 34 and
34A of the Criminal Procedure Act refer).
If it is not practicable to obtain an arrest warrant or search warrant (if applicable for evidential material), sectio
n 8 enables
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Part 3 - Warrantless powers to search places, vehicles and things
Police to enter a property or vehicle to arrest the person. Having entered the address it may be possible to also seize
evidential material relating to the offence where items are in plain view (section
123); or fol owing arrest to search the arrested
person and seize evidential material (section
88); or to search for evidential material that there are reasonable grounds to
believe wil be destroyed, concealed, altered, or damaged, if entry is delayed (sections
83 and
84).
See law note, ‘
Applying section of the Search and Surveil ance Act 2012’ for further information about:
warrantless entry to avoid loss of offender or evidential material
at the time of entry, the intention must be to effect an arrest of the person
the belief of suspicion required for the exercise of the power
relationship with drink driving (EBA) offences.
Case law
See the fol owing case law relevant to section
8:
Round v R [2020] NZCA 557 for the Court of Appeal’s emphasis that “intention to arrest the suspect is central to the
power”
Harris v Police HC Wel ington AP18/97, 12 March 1997 in relation to the officer’s intention to arrest the person involved
in an assault was not negated by the fact that Police spoke to other party-goers to identify the person before arresting
them
for determining the objective standards of reasonable suspicion and the higher standard of reasonable belief:
Wild v Police [2017] NZHC 1344
Police v Orupe [2016] NZDC 3984
Hawkes v R [2015] NZCA 49
R v Sione Malafiu Falala [2013] NZHC 1686.
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Emergency powers
Entry to prevent offence or respond to risk to life or safety
If you have reasonable grounds to…
you may...
suspect, in relation to a place or vehicle:
enter the place or vehicle without a
warrant,
and
an offence is being, or is about to be committed, that would be likely to cause
take any action you have
injury to any person, or serious loss of or serious damage to any property,
or
reasonable grounds to believe is
there is risk to the life or safety of any person that requires an emergency
necessary to:
response
prevent the offending from being
committed or continuing, or
avert the emergency.
Note: 'Take any action' means any action that is reasonable in the circumstances.
(s
14)
Case law
The scope of powers under sections 10 and
14 of the Act are demonstrated in
R v The Queen [2020] NZCA 125. The Court
found that the persons whose life or safety is at risk so as to require an emergency response under section
14 of the Act may
include police officers.
This case possibly broadens the scope of s
14 of the Act; it provides that an officer may take action under that section in order
to respond to risks to the safety of police officers engaged in high risk duties.
No power of detention
Section
14 carries no power of detention. In
‘Lessons Learnt – Unlawful detentions and arrests; three case studies’ a case
study explains the lesson learnt from detaining and transporting a man to the custody hub with the intention of having a mental
health assessment.
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Entry and search for evidential material (serious offences)
Entry and search of places to find and avoid loss of evidential material
If you have reasonable grounds to...
you may…
suspect an offence punishable by 14 years imprisonment or more has been, is being, enter and search the place
or is about to be committed,
and
without a warrant.
believe that:
evidential material relating to the offence is in a place,
and
if entry is delayed in order to obtain a search warrant, the evidential material wil be
destroyed, concealed, altered or damaged
(s
15)
Section
15 is about urgency. Once that urgency has passed and the scene is secure (assuming it is not a simple case of
seizing an exhibit with no further interest in the scene) a warrant should be obtained. The timing wil depend on the
circumstances.
The ability to secure a search scene when an application for a warrant is pending strengthens the ‘warrant preference rule’.
Unless there is some urgency to conduct the search or a concern that the securing of the scene may not be sufficient to
preserve the evidential material, it may be appropriate to have to resort to section
117 rather than exercise a warrantless
power.
Searching people in public place for evidential material
If you have reasonable grounds to...
you may...
believe that a person in a public place is in possession of evidential material relating to an offence
search that person
punishable by 14 years imprisonment or more
without a warrant.
(See
'Searching people').
(s
16)
Entry and search of vehicles in a public place for evidential material
If you have reasonable grounds to ...
you may...
believe that evidential material relating to an offence punishable by 14 years imprisonment
enter and search that vehicle
or more is in or on a vehicle in a public place
without a warrant.
(s
17)
Note: If a vehicle is parked in a place other than a public place, use sectio
n 15 to enter and search that vehicle.
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Part 3 - Warrantless powers to search places, vehicles and things
Warrantless searches associated with arms
Arms in places or vehicles
If you have reasonable grounds to...
you may...
suspect that there are arms in any place or vehicle:
without a warrant:
in respect of which a category 3 or 4 offence (means an indictable offence until
enter the place or vehicle
Criminal Procedure Act 2011 comes into effect) or an offence against the Arms Act
search it
1983 has been, is being, or is about to be committed, or
seize and detain any arms
that may be evidential material in relation to a category 3 or 4 offence or an offence
or licence under the Arms
against the Arms Act 1983
Act 1983 found there.
(s
18(3))
Approval for arms-related searches of places and vehicles
Unless impracticable in the circumstances, obtain approval from a sergeant or above before exercising any of the warrantless
powers outlined above in relation to arms.
Searching people associated with arms
See
'Searching people' for information on the power to search people associated with arms.
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Part 3 - Warrantless powers to search places, vehicles and things
Warrantless searches associated with drugs
Search of places and vehicles
If you have reasonable grounds to...
you may...
believe that in or on a place or vehicle:
without a warrant:
there is a control ed drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part
enter and
1 of Schedule 3 of the Misuse of Drugs Act 1975, or
search the
a precursor substance specified or described in
Part 3 of Schedule 4,
and
place or
that it is not practicable to obtain a warrant,
and
vehicle.
suspect that in or on that place or vehicle an offence against the Misuse of Drugs Act 1975 has
been, is being, or is about to be committed in respect of that control ed drug or precursor
substance,
and
believe that, if entry and search is not carried out immediately, evidential material relating to the
suspected offence wil be destroyed, concealed, altered, or damage
(s
20)
Approval for drug related searches under sections 20 and 21
Unless impracticable in the circumstances, obtain approval from a sergeant or above before exercising any of the warrantless
powers outlined above in relation to drugs.
People found in or on places or vehicles
If you are conducting a search of a place or vehicle under sectio
n 20, you may, without a warrant, search any person found in
or on the place or vehicle. (See '
Searching people' for procedures for searching people).
(s
21)
Searches of people associated with drugs
See
'Searching people' for information about warrantless powers to:
search a person for drugs if an offence is suspected
conduct an internal search of a person in connection with certain drug related offences and the effect of a refusal to
undergo an internal search on an application for bail.
Police and Customs powers relating to delivery of drugs
This table outlines Police powers when, during a control ed delivery, a Customs Officer has exercised their powers under
section 12 of the Misuse of Drugs Amendment Act 1978:
If you or the Customs Officer has reasonable grounds
to...
you or the Customs Officer may without a warrant...
believe the person is in possession of, or the place, craft, or
search a person involved in a delivery under section 12 of
vehicle contains, any 1 or more of the fol owing:
the Misuse of Drugs Amendment Act 1978
enter and search any place, craft, or vehicle
a
control ed drug
seize anything you or the Customs officer have
a
precursor substance
reasonable grounds to believe is a:
a package in relation to which the Customs officer has
a control ed drug
replaced al or a portion of any control ed drug or
a precursor substance
precursor substance
a package in relation to which the Customs officer
evidential material in relation to the commission of an
has replaced al or a portion of any control ed drug or
offence under section
6(1)(a) or
12AB of the Misuse of
precursor substance
Drugs Act 1975
evidential material.
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(s
81)
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Part 3 - Warrantless powers to search places, vehicles and things
Warrantless searches for offensive weapons
Searching vehicles for offensive weapons
If you have reasonable grounds to…
you may…
suspect that:
without a
warrant:
a person travel ing in a vehicle (or who has alighted from it) is committing an offence in a public place
against section
202A(4)(a) of the Crimes Act 1961,
and
search the
the vehicle contains a knife, offensive weapon, or disabling substance
vehicle.
(s
28)
Definitions
These meanings apply in section 28.
Term
Definition
Disabling
'Disabling substance' means any anaesthetising or other substance produced to use for disabling a person or
substance
intended for such use by the person who has it with them.
Offensive
'Offensive weapon' means any article made or altered to use for causing bodily injury or intended for such use
weapon
by the person who has it with them.
(s
26)
Searching people for offensive weapons
See also '
Searching people' for your power under section
27 to search a person when you suspect them of committing an
offence in a public place against section
202A (4)(a) of the Crimes Act 1961.
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Part 3 - Warrantless powers to search places, vehicles and things
Searching vehicles for stolen property
Warrantless search of vehicle for stolen property
If you have reasonable grounds to believe that any stolen property is in or on any vehicle, you may search the vehicle without
a warrant.
(
29)
Note: This section is intended to al ow you to search a vehicle in a public place. If the vehicle is on private property, you should
seek a search warrant or use an alternative warrantless power.
Case law
In
Nassery v R [2020] NZCA 511, the Court of Appeal:
held it was not a search for Police to observe things that would be visible to any onlooker (looking into a van when the
door was opened by the driver)
reiterated the warrant preference rule:
Section
29 can be engaged unreasonably where a warrant could readily have been obtained without jeopardising a
successful search. Whether obtaining a warrant is open to police depends on the practicalities in each situation.
In this case, the need to search the van arose late in the evening and made it impractical to pursue the availability
of an Issuing Officer. The officer was entitled to take the view that it would not be practical to guard the scene or
move and store the vehicle while a warrant was sought. The fact a warrant was sought and obtained the next
morning for further searches did not negate the validity of this decision.
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Part 3 - Warrantless powers to search places, vehicles and things
Warrantless searches if offence against s 78 or 78AA of Crimes Act 1961
suspected
Warrantless search of place, vehicle or thing
If the circumstances are that there are reasonable grounds to suspect that…
you may…
an offence against section
78 (espionage) or
78AA (wrongful communication, retention, or
without a warrant:
copying of classified information) of the Crimes Act 1961:
has been, or
carry out a search
of the place,
is being, or
vehicle or thing.
wil be
committed and that the case is one of great urgency and requires immediate action,
and
to believe that there is evidence in any place, or in or on any vehicle or other thing, as to the
commission of that offence or evidence of a thing that is intended to be used for the purpose of
committing that offence
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Entry and search of places and vehicles incidental to arrest
Entry and search of places after arrest
If you have arrested a person for an offence:
and have reasonable grounds to...
you may...
believe that:
enter the place to search for evidential material relating to the
offence (whether or not the person was arrested there) without a
evidential material relating to the offence is at a
warrant.
place,
and
if entry is delayed to obtain a warrant, evidential
material wil be concealed, altered, damaged or
destroyed (CADD)
(s
83)
Entry and search of vehicles after arrest
If you have arrested a person:
and have reasonable grounds to …
you may...
believe that evidential material relating to the offence for which they were arrested is enter and search that vehicle without
in a vehicle
warrant.
(s
84)
Case law
In
R v Cameron [2018] NZDC 16448 the Court considered how long after an arrest a search must commence of a vehicle for
evidential material to the offence for which the person was arrested. The Court inferred that a warrantless search should take
place as soon as practicable wil depend on the circumstances. In this case the circumstances included that the arresting
officer was working alone.
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Part 3 - Warrantless powers to search places, vehicles and things
Tracking stolen property
GPS (Global Positioning System) tracking capability and other location services means police can potential y locate stolen
property (e.g. devices such as mobile phones, iPads etc) very quickly.
Be aware that the property may not be stolen. It is not uncommon for people to inadvertently leave phones in taxis or at
businesses. Therefore, care should be taken in assessing the complaint and deciding what action may be appropriate in the
circumstances.
See
‘GPS Tracking and the Search & Surveil ance Act’ for the legal opinion related to tracking stolen property.
Acting on tracking information
View the information provided by the victim. Typical y, devices wil show an accuracy measurement around where the device
may be located. This is normal y done with a circle which means that the device may be anywhere within that radius.
Note: The circle indicates the device is somewhere within the circle and not in the centre.
Powers under the Search and Surveillance Act
The main powers under the Act that apply are:
section
6 – Issuing officer may issue search warrant
section
8 – Entry without warrant to avoid loss of offender or evidential material
section
15 – Entry without warrant to find and avoid loss of evidential material relating to certain offences
section
16 – Searching people in public place without warrant for evidential material relating to certain offences
section
17 – Warrantless entry and search of vehicle for evidential material relating to certain offences
section
29 – Power to search vehicles without warrant for stolen property
section
46 and
53 – Activities for which a surveil ance device warrant required and who may issue a surveil ance device
warrant
section
83 – Entry without warrant after arrest
section
84 – Warrantless entry and search of vehicle after arrest
section
88 – Warrantless search of arrested or detained person
section
117 – Special powers where application for search warrant pending.
Is tracking stolen property surveillance or search?
Section
46(1)(b) of the Act requires a surveil ance device warrant to be obtained before police use a tracking device. A
tracking device includes any device that may be used to help ascertain the location of a thing or person. However, the same
restrictions do not apply to a victim, and they may provide tracking information/intel igence. Where this occurs, it is normal y
not necessary for a tracking device warrant to be obtained, but an assessment is always required of the information provided.
In particular, an assessment is required of how accurate the information is in the circumstances.
Warrant or warrantless power?
While it is always preferable to obtain a search warrant, it is recognised that even large items of property can be easily moved
or disposed of and signal ing information may only be available for a short period of time. For this reason, consideration should
be given to al the circumstances in determining whether a with/without warrant power under the Act should be exercised. If a
without warrant power is used, the reasons for this should be wel documented in notebook form as you may be required to
justify that decision in Court.
Determining time and delay for tracking stolen property
Take the fol owing procedural steps with determining time and delay for tracking stolen property.
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Part 3 - Warrantless powers to search places, vehicles and things
Step Action
1
Satisfy yourself that the property has been stolen.
2
Obtain location information from the victim. Find out:
when the last signal from the stolen property occurred
whether the property was moving or stationary at the time.
Note: Be aware that at the time of the last signal, or perhaps prior to the battery going flat or the device being powered
off, the stolen property may have been on the move. An impression that it is/was located at the nearest address at the
time of the last signal may be misleading.
3
If there has been a delay between the provision of signal information and police acting on it, updated information should
be sought.
4
If the stolen property is on the move, then:
check with the victim how often the location is being refreshed (some devices refresh every few minutes, other
devices may only refresh every 10-30 minutes
updates should be manual y done by the victim to ensure that the most accurate data is being obtained
location information should be acted upon urgently, as it is likely the person in possession of the property is either
the thief or receiver and the signal could cease transmitting at any time.
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Part 3 - Warrantless powers to search places, vehicles and things
Reporting warrantless searches of places, vehicles and things
Reporting warrantless searches to the Commissioner
See
‘Reporting’ for details of when you must report warrantless searches of places vehicles and things.
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Part 3 - Warrantless powers to search places, vehicles and things
Quick reference guide: warrantless use of powers notifications and
reporting
Step Action
1
Obtain prior approval from a sergeant or above where applicable (e.g. arms search under sectio
n 18).
2
Provide a written notice to the person present during execution of the warrantless power (POL1275) and an inventory if
items are seized. If no-one was present complete form POL1275 and leave in a prominent place.
Note: To locate written notice forms go to Police Forms > Search and Surveil ance > Warrantless:
Notice to person present during warrantless search
Notice to person not present during warrantless search.
3
Make a record of your decision to use a warrantless power and the reasons for it (i.e. reasonable grounds to suspect /
reasonable grounds to believe) in your notebook.
4
Record the use of powers in the ‘OnDuty’ application for warrantless notifications.
5
Where applicable, complete a notification Ten One> Home>
Notifications to notify relevant groups about drugs, firearms,
children, etc.
Printed on : 08/06/2021
Printed from :
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Part 4 - Consent searches
Table of Contents
Table of Contents
2
Executive summary
3
Search hierarchy
3
Application of rules about consent searches
3
Under the ‘Act’
3
Common law
3
Implied licence to enter not affected
3
Purposes for which consent search may be undertaken
3
Advice that must be given before searching
4
Withdrawal of consent
4
Circumstances where search by consent is unlawful
4
Restrictions on persons under 14 years to consent
4
Exceptions to consent search rules
4
Implied licence
4
Carrying out consent searches
5
Extent of consent searches of persons
5
Disadvantages of using consent searches
5
Part 4 - Consent searches
Executive summary
Key points to note:
Before using a consent search, first consider using a search warrant, or if that’s not practicable, a warrantless search
power.
You must have a reason to justify asking a person to consent to a search and the search must not be used to go on ‘a
fishing expedition’.
You must advise the reason for the search and that they can refuse consent or withdraw it at any time.
A person under 14 years of age cannot consent to the search of a place, vehicle, or other thing — unless they are found
driving a vehicle and there is no passenger 14 years or over with authority to consent to the vehicle’s search.
Exceptions to consent search rules include:
search conducted as a condition of entry to any public or private place
search conducted under a power conferred by an enactment
entry to property under an
implied licence.
Search hierarchy
If you are considering a consent search, observe the general principle relating to "
search hierarchy" – i.e. first consider using
a search warrant and if that isn’t practicable, a warrantless search power. See "
General principles applying to searches" in the
Search introduction chapter.
Application of rules about consent searches
Under the ‘Act’
Section
91 codifies the rules and restrictions applying to consent search by an enforcement officer, where a warrant or
warrantless power would have been available if the officer held a particular belief or suspicion of one of the purposes outlined
in section
92. See ‘
Purposes for which consent may be undertaken’.
Common law
At common law a consent search in other circumstances (that is, where the search is being undertaken for a purpose for which
a power would not have been available even with a reasonable suspicion or belief) wil be lawful whenever voluntary and
informed consent is provided by a person with the capacity and authority to give it. See Wanoa v R NZCA 33 at [25] and R v
Rodgers CA65/06, 29 May 2006 at [19]-[21]. The consent wil be ineffective and the search unlawful, if the consent is obtained
by deception or misrepresentation. See
R v Hjelmstrom (2003) 20 CRNZ 208 (CA) at [15] and
R v Anderson (1997) 4 HRNZ
165(CA).
Implied licence to enter not affected
If an enforcement officer, having entered property under an
implied licence, then wishes to undertake a consent search in
circumstances that fal within the ambit of subpart
2 of Part 4, the restrictions in sections 92-95 apply.
Purposes for which consent search may be undertaken
You may ask a person to consent to undergo a search, or a search being made of a place, vehicle, or other thing apparently in
the person's control for one or more of these purposes:
to prevent the commission of an offence
to protect life or property, or to prevent injury or harm
to investigate whether an offence has been committed
any purpose in respect of which you could exercise a power of search conferred by an enactment, if you held a particular
belief or suspicion specified in the enactment.
(s
92 )
You must have a reason to justify asking for the person's consent to a search in any of the above situations. You cannot
randomly conduct a consent search and must not use a consent search to go on a 'fishing expedition' to see what might be
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Part 4 - Consent searches
located.
Advice that must be given before searching
Before conducting a search by consent, you must:
determine that the search is for a purpose listed in section 92
advise the person from whom consent is sought:
of the reason for the proposed search
that they may consent or refuse to consent to the search.
(s
93)
See
Wilkie v R [2019] NZCA 62 for commentary about consent searches undertaken under section
93 requiring officers to
advise the person that they may withhold consent to a search. A failure to comply with this requirement is likely to render the
search unlawful. The case also demonstrates, there is likely to be flow on consequences for any evidence obtained in relation
to the admissibility of text messages obtained via unlawful search of third party.
You are not exercising a search power when searching by consent s
o subpart 4 of Part 4 does not apply. Good practice is to
identify yourself by name, give the reason for your search and if not in Police uniform produce evidence of your identity.
Withdrawal of consent
A person who consents to a search of themselves or a place, vehicle or thing in their control may withdraw their consent at any
time. In this situation, stop the search immediately, unless a warrantless search power can be invoked to continue the search.
See
Warrantless powers to search places, vehicles and things and
Searching people for your warrantless powers to search
people.
Circumstances where search by consent is unlawful
A search by consent is unlawful if:
it is not for a
purpose set out in section 92, or
you fail to give the
required advice set out in section 93, or
you undertake a search relying on consent given by a person who does not have authority to give that consent.
(s
94)
Restrictions on persons under 14 years to consent
A person under 14 years of age cannot consent to the search of a place, vehicle, or other thing. An exception is when they are
found driving a vehicle and there is no passenger of or over the age of 14 years with authority to consent to the vehicle's
search.
(s
95)
Section 95 does not prevent a person under 14 years from consenting to a search of themselves or anything in their immediate
possession or control. (See
Extent of consent searches of persons for what can be included in a search).
Exceptions to consent search rules
Consent search rules do not:
apply to a search conducted:
as a condition of entry to any public or private place (e.g. a condition of entry to a sporting fixture or concert), or
in accordance with a power conferred by an enactment, or
affect the rule of law relating to the
implied licence to enter property.
(s
96)
Implied licence
It is assumed that members of the public, including police officers, can enter private property (e.g. go to the door of private
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Part 4 - Consent searches
premises) so far as is necessary to make an inquiry of an occupier, for any reasonable purpose or in the course of any lawful
enquiry. Such an implied licence can be revoked by the occupier at any `time.
Carrying out consent searches
When carrying out a consent search, you should carry it out in the same manner as when using a search power.
See
Carrying out search powers (with or without a warrant) for procedures relating to searches of places, vehicles and things
and
Searching people.
Extent of consent searches of persons
If a person consents to a search of themselves, you may extend the search to any item that:
the person is wearing or carrying, (e.g. a bag), or
is in the person's physical possession or
immediate control
provided the person consents to these items being searched.
Disadvantages of using consent searches
If you have a particular belief or suspicion that is sufficient to exercise a warrantless power or to obtain a search warrant, you
must exercise the power or obtain a warrant rather than rely on a consent search.
The disadvantages of using a consent searches are:
the person being searched by consent can withdraw their consent at any time, which means the search must stop
immediately, unless a search power can be invoked to continue the search
if a search power is invoked after withdrawal of consent, the initial request may be seen to be token and meaningless
the existence or validity of any consent given may be chal enged in court.
Printed on : 08/06/2021
Printed from :
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Part 5 - Carrying out search powers with or without
warrants
Table of Contents
Table of Contents
2
Policy statement and principles
5
What
5
Why
5
How
5
Powers incidental to search
6
Police actions authorised by search powers
6
Powers when conducting remote access searches
6
Limitations on exercising search powers
6
Using assistants during searches
7
Powers of persons cal ed to assist
7
Powers of persons cal ed to assist remote access search
7
Powers of constables who assist
7
Special powers when an application for search warrant is pending
7
Powers of detention incidental to searches of places and vehicles
7
Determining a connection
8
Detention for the shortest period practicable
8
Powers to search persons at a place or vehicle
8
Powers of search when suspect pursued
8
Risk assessment when planning searches
9
Maximising safety and minimising risk
9
Planning searches of places, vehicles or things
9
Required risk assessments for searches
9
Conducting your risk assessments
9
Additional risk assessments for search warrants
9
Urgent situations and re-assessing change
9
Planned Action Risk Assessment and CARD Prompt, and ‘OnDuty Noting’
9
Do not disclose planned action risk assessment without advice
10
Procedure for planning searches
11
Planning for searches
11
Examples of risks associated with searches
12
Safety options to mitigate search risks
13
Separating individuals posing risk from premises to be searched
15
Tactical arrest or interception in public place
15
Planning to separate individuals from premises
15
Execution of searches and mandatory notifications to COMMS and DCCs
16
Notification procedures to COMMS and DCCs
16
Warrantless searches
16
Executing search warrants
16
Covert searches
17
COMMS and DCCs responsibilities
17
Steps to fol ow after execution phase
17
Entry, announcement and identification requirements
19
Powers of entry
19
Search warrants to enter and search vehicles
19
Identification and announcement requirements on entry
19
Exceptions to announcing entry and giving reasons for the search
19
Securing the scene to be searched
20
Case Law
20
Using force on entry and detaining people at the scene
20
Being "in uniform"
20
Use of force against persons and property
21
Using reasonable force to enter property
21
Announced forced entry
21
Unannounced forced entry
21
Entry with firearms
21
Ensuring the safety of Police and others
21
Detaining people at searches of places or vehicles
22
Options prior to using force on a person
22
What can be searched and seized?
23
What can you search?
23
Searching people at the scene
23
What can you seize during the search?
23
Items of uncertain status
23
Case law
23
Seizure of items in plain view
24
Case Law Roskam v R [2019] NZCA
24
Case law: Smith v Police [2019] NZHC 2111
24
Seizing privileged materials
24
Searching for and seizing computer material
25
What computer material can be searched and seized?
25
Intangible material on, or accessible from cel phones or computers
25
Definitions related to computers
25
Search of a computer under warrant
26
Search of a computer without warrant
26
Carrying out a search of a computer
27
Carrying out a search of a cel phone
27
Extraction process used to retrieve intangible data from cel phones
27
Remote access searches authorised by warrants
28
Additional powers when conducting remote access searches
28
Principles for data evidence gathering
28
Procedures for accessing computers, securing evidence and creating forensic copies
29
Securing evidence
29
Disposal of forensic copies
29
Information tending to incriminate
30
Privilege and confidentiality
30
Cloud computing
31
Information in the cloud
31
Advantages and disadvantages of cloud computing
31
How to get information out of 'The Cloud'
32
Notice and inventory requirements after search or seizure
34
Notice requirements
34
Form of written notice when exercising a search power
34
Case Law
35
Postponing compliance with notice and inventory requirements of items seized
35
Procedure for recording seized items and providing required notice
35
Limits on who can be treated as occupiers or people in charge
36
Notice requirements for remote access search
37
Duty to give notice to owners of things that are seized
37
Notice and inventory requirements relating to production orders
37
Procedure when seizing items for non-payment of fines
37
Further information
38
Postponing compliance with notice requirements
39
Application to postpone compliance with providing notices
39
Timeframes
39
Application for further postponement or dispensation
39
Restrictions on postponing compliance relating to seized things
39
Search warrants, production orders and examination orders involving media organisations
40
Background
40
Procedural guidelines (search warrants, production orders and examination orders)
40
Notice to Crown Prosecutor
41
Protection of journalists' sources
41
Part 5 - Carrying out search powers with or without warrants
Policy statement and principles
What
The
Search and Surveil ance Act 2012 brings together most Police and law enforcement search, seizure, surveil ance and
related powers. The Act sets out detailed rights, powers and obligations in relation to exercising those powers. The powers in
the Act are designed to make it easier to detect and apprehend offenders committing serious criminal offences.
This part of the
Search chapter details procedures for Police employees carrying out search powers with or without warrant
and provides guidance on associated rights, powers and obligations that arise when searching places, vehicles or things.
Searches by way of warrant or warrantless powers have inherent safety risks and because of their intrusive nature have the
potential to cause harm to Police employees and the public. Police employees planning and undertaking searches must
therefore mitigate these risks as much as possible while enforcing the law.
Why
Key functions of the Police are law enforcement, crime prevention and the maintenance of public safety. As an employer,
Police has a responsibility to ensure that its employees are safe when they undertake their duties.
Compliance with the guidance and procedures in this chapter when carrying out search powers wil :
ensure compliance with the
Search and Surveil ance Act, and other enactments like the New Zealand Bil of Rights Act
1990
maximise safety and eliminate or minimise the potential harm that executing a search warrant or exercising a search
power may have
increase the chance of successful prosecutions.
How
To meet its objectives and obligations when carrying out searches with or without warrants, Police wil :
ensure it has a lawful authority to search and exercise any other incidental power in relation to that search, including the
use of force
conduct risk assessments when planning searches and take action to mitigate risks to protect the safety of the public and
of staff carrying out the search
only seize what it is lawful y entitled to seize
provide appropriate announcements and identification on entry
satisfy the notice and inventory requirements detailed in the Act after search or seizure.
Note: Searches of persons subsequent to arrest, are not covered in this chapter.
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Part 5 - Carrying out search powers with or without warrants
Powers incidental to search
Police actions authorised by search powers
Every search power (with or without a warrant) authorises you to:
Action
You may…
Enter and search
Enter and search the place, vehicle, or other thing you are authorised to enter and search, and any
item(s) found in that place, vehicle or other thing.
You can do this at any reasonable time.
Request assistance Request assistance from any person with the entry and search (including a member of a hapū or an iwi if
the place to be entered is of cultural or spiritual significance to that hapū or iwi).
Use reasonable
Use reasonable force on property only to carry out the search and lawful seizure.
force in respect of
Note: This power does
not authorise the application of force to any person (
s115(3)). (Section
125
property only
covers use of force against a person for search purposes - see
Searching people).
Seize
Seize anything that is the subject of the search or anything else that may be lawful y seized.
See
What can be searched and seized in this chapter for more information.
Bring and use
Bring and use any equipment or use any equipment found on the place, vehicle or other thing.
equipment
You may also use electricity from the place, vehicle, or other thing to operate equipment that it is
reasonable to use in the circumstances for the entry and search.
Bring and use dog
Bring and use a trained law enforcement dog and its handler in or on the place, vehicle, or other thing
being searched.
Copy documents
Copy any document, or part of a document, that may lawful y be seized.
Access a computer Use reasonable measures to access a computer system or other data storage device located (whol y or
system or other
in part) at the place, vehicle or other thing if any intangible material that is the subject of the search may
data storage device be in that computer system or device.
Copy intangible
Copy intangible material accessed as above or which may otherwise be lawful y seized. This includes
material
previewing, cloning, or using other forensic methods before or after removal for examination. See
Searching for and seizing computer material in this chapter for more information.
Take photographs, Take photographs, sound and video recordings, and drawings of the place, vehicle, or other thing being
and recordings
searched and anything found there,
if you have reasonable grounds to
believe they may be relevant to
the purposes of the entry and search.
(s
110)
Powers when conducting remote access searches
If you are executing a search warrant authorising a remote access search, you may:
use reasonable measures to gain access to the thing to be searched
copy intangible material in the thing being searched or that may otherwise be lawful y seized (this includes previewing,
cloning, or other forensic methods).
(s
111)
Limitations on exercising search powers
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Part 5 - Carrying out search powers with or without warrants
The search powers listed
above are subject to:
any conditions imposed by an issuing officer when issuing a search warrant
the privilege and confidentiality provisions in the Act.
(s
115)
They are also subject the requirements of "reasonableness" under section 21 New Zealand Bil of Rights Act 1990.
Using assistants during searches
If you cal on a person to assist you to exercise a search power, or a person has been required to assist you as a condition of a
warrant, they are subject to your control and the overal responsibility for exercising the power rests with you.
You must, (unless they are another constable):
accompany them when they first enter the place, vehicle, or other thing to be searched,
and
provide reasonable supervision of them.
(s
113)
Powers of persons called to assist
Any person cal ed to assist you exercise a search power may enter the place, vehicle or other thing to be searched, but can
only exercise the power of assistance and other powers listed in the table
above as directed by you. For example, an assistant
can only search places you determine are lawful to search, take photographs, or bring in and use equipment or electricity that
you determine may lawful y be taken or used.
(s
113)
Powers of persons called to assist remote access search
A person cal ed to assist you execute a search warrant authorising a remote access search, has the same powers as you to:
use reasonable measures to access the thing to be searched
copy intangible material that is the subject of the search or that can be lawful y seized.
However, they can only exercise these powers under your control and supervision.
(s
114)
Powers of constables who assist
Other constables assisting you with searches may exercise any power ordinarily exercisable by them, without direction or
supervision from you.
Special powers when an application for search warrant is pending
See Part 2-
Search warrants for information about your power to enter and secure a place, vehicle or other thing when a
search warrant application is about to be made or is awaiting the issuing officer's decision.
Powers of detention incidental to searches of places and vehicles
If you are exercising a search power in relation to a place or vehicle, you (or a person assisting you) may
detain any person to
determine whether there is a connection between them and the object of the search if the person:
was there at the start of the search, or
arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out.
You may use reasonable force (e.g. handcuffing) to effect and continue the detention.
The detention:
may be for any
reasonable period but no longer than the duration of the search
starts when you direct the person to remain and ends when you tel them they are free to go.
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Part 5 - Carrying out search powers with or without warrants
(s
118)
Determining a connection
As soon as you have detained a person under section 118, you must take active steps to determine whether there is a
connection between them and the search. The detention can only be for the shortest period practicable in the circumstances to
determine this.
You cannot simply detain the person for the duration of the search and then on completion, consider the matter of connection.
In essence, once people have been excluded and cleared of suspicion, they should be informed that they are free to go about
their business.
Detention for the shortest period practicable
Endeavour to al ow occupants back into a place or vehicle as soon as it has been secured and where it is physical y practicable
(e.g. sufficient room available) for them to be present and where they are not likely to hinder or obstruct the search.
If it is not practicable, you should assist the occupants to find alternative locations such as relatives’ or friends’ houses to stay
while the search is completed.
Powers to search persons at a place or vehicle
If you are searching a place or vehicle, you may:
search any person...
if you have reasonable grounds to …
found at the place or in or on the
believe that evidential material that is the object of the search is on that person,
vehicle,
or
or
who arrives at the place,
or
suspect the person is in possession of a dangerous item that poses a threat to
who stops at, or enters, or tries
safety
and you believe that immediate action is needed to address that threat.
to enter or get into or onto the
Exception: An exception to the above is when the search is for drugs - you can then
vehicle
search any person at the scene as a matter of course under section
19 or
21.
(s
119)
Note: If you
seize any item posing a threat to safety, then it must,
unless possession constitutes an offence, be returned to the
person:
once your search has been completed, or
when you are satisfied there is no longer any threat to safety.
Powers of search when suspect pursued
If you intend to search a person or vehicle, but that person or vehicle leaves before you are able to start or complete the
search:
you may...
if you have…
apprehend the person or
been freshly pursuing the person from the intended search location until
enter any place to apprehend the
apprehended,
and
person or vehicle
you have reasonable grounds to
believe that relevant evidential material is stil
on the person or in or on the vehicle.
(s
120)
Note: You can effect the apprehension or undertake the search
only if you are the officer in fresh pursuit,
unless you are
acting as that officer's assistant under section
113 and under their direct supervision and control.
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Part 5 - Carrying out search powers with or without warrants
Risk assessment when planning searches
Maximising safety and minimising risk
Maximising safety and eliminating or minimising risk when searching is the responsibility of al Police employees and those
requested to assist with the search. Safety and risk reduction is met by adherence to police policies designed to manage safety
and comply with obligations under the Health and Safety at Work Act 2015. A key enabler is the application of the TENR-
Operational threat assessment in the workplace.
Persons planning and conducting searches must take reasonable care to ensure their acts or omissions do not adversely
affect the health and safety of other persons. Searchers must comply as far as practicable with any reasonable instruction
given to enhance the safety and wel -being of those involved in the search and with the
Health and Safety at Work Act 2015 or
associated regulations. Investigative considerations are secondary to the safe execution of a search.
Planning searches of places, vehicles or things
Al searches of a place, vehicle or thing by way of warrant or warrantless power must be treated as a critical incident involving
risk with the potential to cause harm. Planning must be undertaken to:
assess any threats arising, manage exposure, determine the necessity to intervene and decide the proportionate
response
identify issues that may impact on community trust and confidence in Police
problem solve and apply decision-making.
Obtain a search warrant unless it is impracticable to do so (e.g. due to the fluidity and urgency of the situation) and apply
contingency management and response arrangements into your operational planning and prepare operation orders.
Required risk assessments for searches
When planning and executing
any search you should undertake:
an
Operational threat assessment (TENR)
a Planned Action Risk Assessment and CARD prompt
a
critical incident appreciation.
Conducting your risk assessments
When conducting your assessments, fol ow detailed guidelines in:
the ‘
TENR-Operational threat assessment’, and
‘Community Impact Assessments (CIAs)’ chapters
‘Community impact assessment for establishing road blocks’, in Search Part 6 – Roadblocks and stopping vehicles for
search purposes
‘Critical incident appreciation process’ in
‘Control and command overview’
Additional risk assessments for search warrants
Before any search warrant is executed, use the
Planned Action Risk Assessment and CARD Prompt to guide your TENR
assessment. The CARD prompt then provides a template for the information that must be entered as a CARD event (via iNet
—using a mobility device) before the search warrant is executed. (The CARD event should be entered between five and 30
minutes before the search warrant is executed.)
Urgent situations and re-assessing change
If the situation is urgent, requiring a warrantless search power to be exercised, you may carry out a mental TENR (rather than
formal) assessment, and a mental community impact assessment. (The
Planned Action Risk Assessment and CARD Prompt
provides a useful aid to assist this). You should also carry out ongoing mental TENR and community impact assessments as
the situation changes during execution of the search.
Planned Action Risk Assessment and CARD Prompt, and ‘OnDuty Noting’
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Pre-search warrant risk and community impact assessments must be made using the ‘Planned Action Risk Assessment and
CARD Prompt’ for guidance.
After executing a search warrant, use a mobility device to submit an
‘OnDuty Noting’ to provide intel igence information
(related to either the subject/s or location) that might be useful to inform future activities.
Do not disclose planned action risk assessment without advice
Do not disclose the planned action risk assessment or
‘OnDuty Notings’ without legal advice. A refusal to disclose the
assessment can be made under section
16(1)(a) and (c)(i i) of the Criminal Disclosure Act 2008.
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Procedure for planning searches
Planning for searches
Use this table as a guide when planning searches of places, vehicles and things prior to execution.
Step Action
1.
Unless circumstances make it impractical, avoid using warrantless powers. Take time to obtain a search warrant.
Note: If a search requires access via adjoining properties, ensure this information is included in the search warrant
application.
Section 6(c) Official Information Act 1982
3.
Undertake thorough risk and community impact assessments applying
TENR.
Note: Use the
Planned Action Risk Assessment and CARD Prompt to provide a helpful guide to TENR, risk and
community impact assessment thinking.
See
Examples of risks associated with searches (list is not exhaustive) below.
4.
Undertake a critical incident
appreciation
5.
Apply for search warrant using the online Search and Surveil ance system, fol owed by an appearance before an issuing
officer.
6.
O/C Search Warrant assesses the
response level and
assesses the safety options associated with the response level.
(Refer to the
Planned Action Risk Assessment and CARD Prompt to help guide decision-making).
Response level may include deployment of specialist groups such as:
AOS (see steps 7 to 9),
Dogs,
Clan Lab, SSG,
STG.
7.
If AOS is to be involved, have the AOS supervisor check the OC search warrant’s risk assessment, safety options and
recommended response level. If the risk justifies using AOS, they may need to undertake a reconnaissance to develop:
a concept of operations
detailed pre-deployment briefing.
AOS wil advise if the operation is beyond their capability.
See the
AOS – Pre-planned operation guide to assist with planning if AOS is to be involved and the information the AOS
supervisor requires.
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8.
The O/C AOS:
reviews the risk assessments and, if prepared, any concept of operations and pre-deployment briefing document
approves any deployment of AOS members (partial or ful ) and signs off the documents.
Note: This includes identification and consideration of principal tactics to be adopted and assets to be used (weapons,
breaching, less lethal options, dogs, impact rounds etc.) within the context of identifiable operational limitations.
9.
If AOS is to be used to execute the search warrant, execution is commanded by the AOS O/C.
Note: The timing and tactical approach is AOS’s responsibility. Investigative considerations are secondary to the AOS
mission of ‘safe execution of the search warrant’.
10. Execution team conducts pre-execution briefing. The
Planned Action Risk Assessment and CARD Prompt provides
helpful guidance for final pre-execution risk and community impact assessments.
11. O/C Search Warrant or a designate enters a CARD event via iNet Viewer between 5–30 minutes before executing the
search warrant.
Note:
This provides essential information for Comms and DCCs to support the safety of executing staff.
The
Planned Action Risk Assessment and CARD prompt provides a template for the information required in the
CARD event.
Note: These same instructions apply to a warrant to arrest assessed when a search of a place is required to locate the
suspect. See the ‘
Arrest and detention’ chapter for further information.
Examples of risks associated with searches
Al searches have inherent risks for employees, those being searched and the community to be factored into planning. Some
examples are:
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Occupier(s):
May be armed with (or access to) firearms, weapons, explosives, disabling substances
Involved in manufacture or supply of firearms
Have history of violence, disorderly behaviour, resisting arrest, assaults Police, escaping and/or
showing signs of aggression
Have aggressive pet(s)
Have history of growing, manufacturing, sel ing, supplying, consuming or believed to be under the
influence of alcohol, drugs and/or psychoactive substances
Are gang members or have association with gangs
Suffering from psychological disorders, depression, suicidal symptoms and medical conditions (e.g.
deafness)
Persons being searched may resist.
Place/vehicle:
Fortified (e.g. gang premises), booby trapped or has security features (e.g. alarms, surveil ance
cameras)
Occupied by gang members
Dangerous and hazardous substances present or in immediate vicinity (e.g. petrol, chemicals)
Premises with potential hazards (e.g. internal access to adjoining premises, renovations without
electrical, plumbing or building consent, open fire operating)
Equipment/machinery present that could be used as a weapon.
Section 6(c) Official Information Act 1982
Other factors
Children, vulnerable people and public are present or nearby
Supporters of occupier(s) may intervene and be obstructive
Neighbours placed at risk of harm/retaliation.
Safety options to mitigate search risks
Safety options to mitigate risk include:
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Option
Description / consideration
Surveil ance of the
Can be with or without a surveil ance device. If a device is required, the surveil ance regime in the
target before
Search and Surveil ance Act 2012 applies – see the ‘
Surveil ance’ chapter
execution
Section 6(c) Official Information Act 1982
Covert search
Conducting a covert search (approval required from a Detective Senior Sergeant or above – see
‘Covert searches’ in the ‘
Search warrants’ chapter)
Entry to other
Entry to adjoining or neighbouring properties to the place being searched (see ‘Safe execution of
properties
warrants – entry to adjoining or neighbouring properties’ in ‘
Search warrants’ chapter)
Risk mitigation
Other options to mitigate risk may include:
strategies
employees being clearly identifiable as police and Police label ing wel displayed
use of uniform patrol vehicles, flashing lights and sirens
path of approach to be taken
having ambulance/medics available near search scene.
Note: See the
Community Impact Assessments (CIAs) chapter for generic community impact considerations to mitigate
community risks.
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Separating individuals posing risk from premises to be searched
Tactical arrest or interception in public place
One tactical option available in some circumstances, is separating an extreme risk individual from the premises to be
searched. This is commonly referred to as a tactical arrest or interception. This tactical option needs to be lawful y undertaken
and if detention or search of any kind is involved, it must be based on a specific power.
If an occupant of the address to be searched is an extreme safety risk (e.g. thought to have access to firearms or other
weapons and/or be prepared to use them against Police), consideration must be given to separating that individual from their
environment. This may involve:
surveil ance of the individual to ensure absence from the target address
intercepting (searching/arresting) the individual in a safer location (e.g. public place).
Planning to separate individuals from premises
Careful consideration is required before separating an individual posing a risk from premises to be searched. Consider these
key factors in relation to planning a tactical arrest or interception.
Factors Description
1
Conduct a comprehensive
TENR assessment.
Note: The overriding principle of TENR is “Safety is Success”. The safety of Police employees, the public, occupiers
and suspects must take priority over other matters (even, if necessary, including potential loss of evidence).
2
Contemplate arresting the person before executing the search warrant (if there is sufficient evidence to arrest prior to
the search).
3
Consider applying for both a warrant to arrest and for a search warrant if there is sufficient evidence available.
Note: A warrant to arrest issued in conjunction with a search warrant better enables the interception and arrest in a
public place; and at the same time execution of the search warrant.
4
In the absence of grounds to arrest the person, determine:
Are there grounds for a warrantless search (particularly if the warrant is for drugs or weapons that could be
concealed on the person)?
Does the warrant include the individual’s mode of transportation and power to search his vehicle away from the
target address?
5
Effect a traffic stop or interception away from premises to be searched and obtain individual’s cooperation to
voluntarily attend search premises.
6
Consider advice from Legal Advisor on the viability/justification/legality of a tactical arrest or interception type
operation.
7
In some circumstances the tactical arrest or interception maybe considered a safer option, but may also potential y
introduce significant risk to the public, police or suspect.
CIA assessment may be necessary for the tactical arrest or
interception phase of the search warrant operation.
8
A tactical arrest or interception should never be considered a default option but rather a tactic for consideration.
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Execution of searches and mandatory notifications to COMMS and
DCCs
Al searches carry inherent dangers and risks for Police employees and others. Notification must be done in a prescribed 4X
CARD event.
Notification procedures to COMMS and DCCs
Warrantless searches
If you are exercising a
warrantless search on a place, vehicle, or thing you
must notify COMMS,
unless:
impracticable in the circumstances (e.g. out of radio and phone contact);
your safety or the public’s safety, or evidential considerations requires that the search be conducted immediately.
Using your radio (consider who might be scanning the Police radio) or mobile phone advise COMMS:
your cal sign(s), identity and the number of col eagues accompanying you
event location where search is to be conducted
time and date search are to commence
units attending and units carrying firearms
occupants' details
contact information for O/C
target(s) / occupant(s) (PRN / DOB if known)
of threats, exposure, necessity/authorisation, response/tactics from
TENR mental assessment
any tactical/additional information relevant to potential escalated response from COMMS.
Note: Ensure a 4X CARD event has been notified.
Executing search warrants
If you are executing a search warrant:
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Step Action
1
Review the
‘Planned Action Risk Assessment and CARD Prompt’ risk assessment. Give special attention to
TENR,
community impact and staff safety.
2
Ensure al employees are involved in securing a safe environment and those conducting the search are briefed before
effecting entry/search
3
Notify COMMS and DCCs of impending search through a 4X CARD event via:
INet Viewer
Mobile Responder
The CARD event should contain the fol owing information:
4X –Search Warrant
event location
time and date to be executed
your identity and the number of col eagues accompanying you
units attending
units carrying firearms
target(s)/occupant(s) details (PRN/DOB if known)
contact information for O/C
any
TENR (threat, exposure, necessity/authorisation, response/tactics and additional information and also for
exercising warrantless search powers when risks have been identified relevant to potential escalated response from
COMMS.
Note: The 4X CARD event ensures the (mandatory) notification of pending searches authorised by search warrant to
both COMMS and DCCs. Remember, this must be carried out between 5–30 minutes before executing the search
warrant.
Covert searches
If you are
executing a covert search approved by a supervisor (sergeant or above) instead of carrying out the notification
procedures for search warrants general y, notify the Shift Commanders at COMMS and DCCs by phone with the confidential
details of the pending search covering the points identified for advising warrantless searches.
COMMS and DCCs responsibilities
Shift commanders at COMMS and shift supervisors at DCCs are responsible for:
advising only those subordinates on a ‘needs to know’ basis for safety to monitor the execution of overt search warrants
keeping sensitive information, particularly involving covert searches, confidential, but stil maintain a monitoring role
responding to and taking command of any emergency that may arise from the execution of the search warrant -
Note:
Comms shift commander wil take command of any emergency that may arise from the execution of the search warrant
until such time as the District has appropriate resource and people in place to take command of the emergency.
ensuring risks that are not mitigated are identified and acted upon.
Note: Planning, command and control of the execution phase remains with officer in charge executing the search warrant.
Steps to follow after execution phase
Fol ow these steps after executing a search warrant:
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Step Action
1
As soon as possible after the warrant is executed, the
executing officer (or designate) completes and submits the
electronic ‘
OnDuty Notings’ notification on their mobility device. Note in the Police file that the noting has been done.
2
Learning for the future
Notings should provide information obtained while executing searches that might be relevant to future risk assessments.
This wil improve our ability to assess risks to the safety of employees executing future responses, and identify measures
to reduce the risk of harm to police and others.
If you think there might be a potential risk to other staff conducting search warrants not necessarily connected to your
warrant (e.g. through criminals sharing man-trap ideas), notify Comms of the issue so they can pass on emerging trends
to other staff in the field and notify
Lessons Learnt to ensure the knowledge can be shared.
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Entry, announcement and identification requirements
Powers of entry
Every search power authorises the person exercising it, to enter and search the place, vehicle or other thing they are
authorised to enter and search, and any item(s) found in that place, vehicle or thing, at any reasonable time.
(s
110)
Search warrants to enter and search vehicles
If a search warrant authorises the search and entry of a vehicle, you may enter any place where you have reasonable grounds
to believe the vehicle is to locate and search it.
(s
127)
Identification and announcement requirements on entry
If you exercise a search power, you must
before your initial entry:
announce your intention to enter and search the place, vehicle, or other thing under a statutory power
identify yourself (by name or ID)
if not in Police uniform produce evidence of your identity.
You must also, either
before or on initial entry provide the occupier of the place or the person in charge of the vehicle or
other thing:
a copy of the search warrant, (if it is not possible or practicable to have this in your possession, you may execute:
a facsimile or a printout of an electronical y generated copy of the warrant, or
a copy which is endorsed to that effect)
(s
131(1))
or
for a warrantless search or securing a scene under section 117 when a warrant is pending, (if requested by any person
affected) state the name of the enactment under which you are searching or propose to search and the reason for the
search, unless impracticable to do so in the circumstances.
(s
117)
Note: Where a warrant covers separate units of occupancy, an occupier of each unit searched should be provided with a copy
of the warrant. If in doubt, take multiple copies of a warrant to a search scene to distribute if necessary. See Law Note - Copies
of search warrants to be given to al occupiers at properties with multiple dwel ings
See
Notice and inventory requirements after search or seizure in this chapter for information about what to do if the occupier or
person in charge of the vehicle is not present during the search.
Exceptions to announcing entry and giving reasons for the search
You do not have to announce your entry, identify yourself and give a copy of the warrant or notice of the reasons for a
warrantless search if you have reasonable grounds to believe that:
no person is lawful y present in, or on the place, vehicle, or other thing to be searched, or
compliance with the requirements would:
endanger the safety of any person, or
prejudice the successful exercise of the entry and search power, or
prejudice ongoing investigations.
(s
131(2))
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Securing the scene to be searched
If you are carrying out a search, you may, in a manner and for a duration that is reasonable to carry out the search:
secure the place, vehicle, or other thing searched (scene), or any area within that scene, or any thing found within that
scene
exclude any person from the scene or area, or give them any other reasonable direction, if you have reasonable grounds
to believe they wil obstruct or hinder you.
If requested by any person affected by the search, you must:
identify yourself by name or ID
state the name of the enactment under which the search is taking place and the reason for the search, unless it is
impracticable in the circumstances
if not in Police uniform, produce evidence of your identity.
(s
116)
Case Law
Securing the scene to be searched was considered by the Court i
n Mahmand v R [2019] NZCA 307. In terms of section
116
powers, what is a reasonable manner and duration to secure a place being searched wil depend on al the circumstances.
The Court noted that even if their view that the application of section
7 of the Act al owed police officers to invoke the section
116 provisions is wrong, they were satisfied that the common law provides adequate authority for police officers to maintain the
security of a property being searched.
Further the Court of Appeal has previously held that the section
117 powers where the application for a search warrant is
pending do not preclude authority to take any steps necessary to secure the property and ensure the safety of searchers.
Consideration of section
117 when exercising warrantless powers was given by the Court of Appeal i
n Mehrtens v R [2018]
NZCA 446. The Court stated that in some situations, it would be appropriate for an officer to use the less intrusive powers of
section 117, instead of resorting to a warrantless search. However, the Court held that it was not practicable in this case for
the officer to obtain a warrant and exercising the powers of section
117. The powers in section 117 do not extend to securing a
person.
G & B v R [2019] NZCA 32 deals with a col ateral purpose and safety concerns/procedures when executing a search warrant
on an address linked to gang activity. In this case the Court considered the safety measures taken were genuine and
reasonable. The property had connections with a gang and there were multiple connections of the gang to the particular road.
In respect of this, the Court stated: “This context justifies the police taking extra steps when carrying out enforcement tasks on
a property.”
Having a dual purpose for executing a search warrant does not invalidate the search, provided that any actions taken in the
pursuit of either purpose do not exceed the scope of the warrant.
Using force on entry and detaining people at the scene
See Use of force against persons or property in this chapter.
Being "in uniform"
Uniform is "distinctive clothing or equipment issued by the Commissioner to be worn by Police employees while on duty and
having a colour scheme, pattern or style that enables the person wearing it to be readily identifiable as a Police employee". (s4
Policing Act 2008)
The wearing of SRBA as the only uniform item by plain clothed employees conducting searches is not sufficient to meet the
criteria for being "in uniform". They must produce identification when exercising search powers.
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Use of force against persons and property
See also
Entry, announcement and identification requirements in this chapter in association with this section.
Using reasonable force to enter property
When exercising any search power, you (and any assistant under your direction) may use any reasonable force in respect of
any property to carry out the search and any lawful seizure.
(s
110(c) and s
113(2)(b))
You may also use reasonable force against any property or person to effect entry where this is justified under section 131(3),
e.g. when entry is resisted or refused.
When deciding whether to force entry, you must consider the possibility that such entry may present a danger to:
the Police party
the occupants of the premises, including children or other vulnerable people present
members of the public.
Section 6(c) Official Information Act 1982
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Detaining people at searches of places or vehicles
See
Powers of detention incidental to searches of places and vehicles (
s118) in the "Powers incidental to search" section of
this chapter.
Options prior to using force on a person
If a person obstructs or resists you exercising an entry, search, stopping, detention or seizure power, consider these options.
Option Action
1
Explain that their continued resistance or obstruction is an offence of resisting/obstructing Police against section 23 of
the Summary Offences Act 1981.
2
Warn them, if practicable, that they wil be arrested for the offence of resisting/obstructing Police if they do not desist
immediately.
3
Arrest them for resisting/obstructing Police if:
impracticable to warn the person, or
they continue to resist or obstruct you.
4
For further information, see the
Arrest and detention or
Use of force chapter.
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What can be searched and seized?
What can you search?
You can only search for items specified in a search warrant or which are permitted under a warrantless power, and only in
places that could contain them. For example, you could not search a drawer for a large television set - although you could for
documents relating to it.
A vehicle can be searched if it is on the premises, but a vehicle parked on the street must be specified in the warrant.
Searching people at the scene
If you are searching a place or vehicle, you may search any person found there, or who arrives at the place or stops at, enters
or tries to enter the vehicle, if you have reasonable grounds to believe:
evidential material that is the object of the search, is on the person, or
the person is in possession of a dangerous item that poses a threat to safety, and that immediate action is necessary to
address that threat.
You can seize any such evidential material or dangerous item from the person.
(s
119)
Note: In the case of searches for drugs, you may search any person at the scene as a matter of course under sectio
n
19 or
21.
What can you seize during the search?
Every search power authorises you to seize anything that is the subject of the search or that may lawful y be seized.
(s
110(d))
If you find evidence of an offence other than the one specified in the warrant or covered by your warrantless power, you cannot
seize it unless:
you obtain another warrant, or
you exercise
plain view seizure under section
123.
Items of uncertain status
If you are not certain if something can lawful y be seized and it is not reasonably practicable to determine that where the
search takes place, you may remove the item for examination or analysis to determine whether it may be lawful y seized.
(s
112)
This removal power is limited to when you are exercising a search power to find an item but are not sure if the item found is
the actual item you are searching for and therefore whether it may lawful y be seized. For example, if you are exercising a
search power to locate cocaine and find a package containing white powder, you may remove the package under section 112
for the purpose of examination or analysis to determine whether or not the powder is cocaine and can then lawful y be seized.
The section 112 removal power could not be used, if for example, the purpose of your search is to find cannabis, but you find a
television and are uncertain whether it is stolen or not. You would need to consider whether the circumstances are appropriate
to exercise a plain view seizure under section
123 or to secure the place, vehicle or other thing being searched while an
application for a search warrant is pending under section 117. (See 'Special powers when search warrants are pending'
in '
Search warrants' for more information).
Case law
The case
Police v Topia [2018] NZDC 20607 considered sections
112 (items of uncertain status) and
123 (seizure of items in
plain view) with the seizure of a laptop found during a search warrant for other items and examination of an open Facebook
account without warrant.
The Court’s findings confirmed that items cannot be seized without warrant simply for convenience, where it is practicable to
make basic enquiries about them on the spot. Further, the opportunistic searching of a laptop and the contents of a Facebook
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page represent a significant intrusion into the owner’s privacy— which, if not wel -justified, wil likely be unreasonable and may
result in the exclusion of evidence.
Seizure of items in plain view
If you are exercising a search power or are lawful y in a place as part of your duties, you may seize any item(s) you find in the
course of carrying out the search or as a result of observations at that place, if you have reasonable grounds to believe you
could have seized the item(s) under:
any search warrant obtained under the Search and Surveil ance Act or another enactment, or
any other search power exercisable by you under the Search and Surveil ance Act or another enactment.
If you seize an item(s) in circumstances where you are not already exercising a search power, you may exercise any
applicable power conferred by s
110 in relation to the seizure of the items. (See
Powers incidental to search in this chapter).
(s
123(3))
Case Law Roskam v R [2019] NZCA
In
Roskam v R [2019] NZCA items were seized under section
123 of the Act after items subject to the warrant had been
seized. In the Court’s view it was sufficient that the officers saw the basket containing the electronic equipment and formed a
view that its contents may include stolen items and could legitimately be the subject of an application for a second search
warrant. Seizure of those items did not overreach into an il icit invasion of privacy, and unlawful y extended search, because
the existence of the basket and contents had already been noted. Section 123(2) does not require the police to form an instant
view as to criminality. The items were therefore capable of being seized, and fel within the purview of section 123(2).
Section 123 would not have entitled the officers to take a renewed or extended search of the room itself, for example the
entering of closed spaces such as wardrobes. The basket and the bags were discrete, portable items. They were capable of
being seized, and therefore fel within the scope of section 123(2).
The Court noted that the scene could have been further secured against interference in the meantime under section 117.
However, ultimately this second warrant was not needed as the items could be legitimately seized pursuant to section 123.
Case law: Smith v Police [2019] NZHC 2111
The case
Smith v Police [2019] NZHC 2111 highlights the importance of obtaining a further warrant where evidential material
not covered by the warrant authorising entry/search is identified and further searches are required. In particular, s 123 (seizure
of items in plain view) of the SSA is a seizure power, not a search power. The officers in this case were not able to
satisfactorily address/explain the prerequisite in s
20(c) that if the “search is not carried out immediately, evidential material
relating to the suspected offence wil be destroyed, concealed, altered, or damaged.”
Seizing privileged materials
Special rules apply in relation to the search and seizure of privileged or confidential materials held by lawyers, ministers of
religion, medical practitioners, or clinical psychologists relating to clients or journalists relating to their sources. See 'Privilege
and immunities under the Act'.
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Searching for and seizing computer material
What computer material can be searched and seized?
The Search and Surveil ance Act 2012 explicitly provides for the search and seizure of "intangible data" held in data storage
devices such as computers and cel phones. See
Ruru v R [2020] NZCA 64 where a search warrant authorises the search of
devices, Police may search communications found on that device (assuming such searches are within scope of the warrant or
search power), even if the information at issue was downloaded from an internet server located overseas.
A search of a place, vehicle or thing also extends to the search of any computer system or data storage device located in
whole or in part at the place, vehicle or thing.
A search of a business' computer network is therefore permitted even though the server is at premises other than those being
searched. A search of any internet data accessible by the computer's user on the premises being searched is also permitted.
Thus emails on Gmail or Hotmail or data held in the "Cloud" may be accessible, whether or not the data is downloaded, and
whether or not the computer automatical y logs on to the internet site when it is switched on. In the event that a password is
required, the user may be required to provide the password under section
130.
You are not permitted to obtain the password, by way of example, to a Gmail account from the user of the computer that is
located in a place being searched and then to conduct a subsequent search of that account from the enforcement agency's
computer. That may only be done by way of a
warrant to conduct a remote access search.
See
Cloud computing in this chapter for information about cloud computing and how to get information out of "the cloud".
Intangible material on, or accessible from cell phones or computers
Make sure to identify what intangible material is being sought in warrants for cel phones and computers.
Tupoumalohi v R [2020] NZCA 117 is an important reminder about specifying in warrants what type of intangible material they
are seeking when seizing cel phones or computers. It is insufficient to state that Police wish to seize a particular cel phone. It
is necessary to specify in the warrant that intangible material on, or accessible from, the device is also sought. Al that was
required here was for the search warrant to be issued in terms that expressly al owed the Police to access data,
communications and images from the cel phone.
Searching a cel phone after a search warrant has been obtained
When searching a cel phone that has been seized through the lawful and successful execution of a search warrant, it is not
necessary to obtain a further warrant for each search that is conducted in accordance with the original search warrant. In order
to preserve data, police should adhere to standard practices when seizing cel phones. If a search for other purposes is
needed, an additional warrant may be required. See
R v R [2018] NZCA 341 for searching a cel phone after a search warrant
has been obtained.
Definitions related to computers
These meanings of terms relating to computers apply in relation to search powers unless the context otherwise requires.
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Term
Definition
Access
Access in relation to any computer system means instruct, communicate with, store data in, receive data from,
or otherwise make use of any of the resources of the computer system (
s3).
Access
Access information includes codes, passwords, and encryption keys, and any related information that enables
information access to a computer system or any other data storage device (s3).
Computer
Computer system:
system
means:
a computer, or
2 or more interconnected computers, or
any communication links between computers or to remote terminals or another device, or
2 or more interconnected computers combined with any communication links between computers or
to remote terminals or any other device, and
includes any part of the items described above and al related input, output, processing, storage, software,
or communication facilities, and stored data (s3).
Remote
Remote access search means a search of a thing such as an Internet data storage facility that does not have a
access
physical address that a person can enter and search (s3).
search
User
A user is a person who
owns, leases, possesses, or controls the system, device, or site, or
is entitled, by reason of an account or other arrangement, to access data on an Internet site, or
is an employee of one of the above (
s130(5)).
Specified
A specified person is:
person
a user of a computer system or other data device or an Internet site who has relevant knowledge of that
system, device or site
a person who provides an Internet service or maintains an Internet site and who holds access information
(s
130(5)).
Search of a computer under warrant
If you are obtaining a warrant and know at the time of application that the search is likely to include the search of a computer,
you should:
be as specific as possible in the application about the material that you are looking for
where practicable, specify the procedures you wil adopt to locate the material (e.g. use keywords to identify relevant files
or locate the required material), although it is important to do this in a way that maintains the flexibility to undertake the
search effectively.
A warrant that is too general and does not adequately spel out what is being looked for may subsequently be held to be
invalid.
Search of a computer without warrant
If you are searching a computer under a warrantless power, you should:
conduct the search in a way that most effectively targets the material you are looking for
distinguish between material that may come within the scope of the search and material which is clearly irrelevant
information.
You must not conduct a "fishing expedition" and should avoid appearing to others you are.
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Carrying out a search of a computer
If you are authorised to search a computer (or other data storage device), you may:
use any reasonable measures to access a computer system or other data storage device located (in whole or in part) at
the place, vehicle, or other thing if intangible material that is the subject of the search may be on that computer system or
device (s
110(h))
remove the computer for further examination if it is not practicable to search it on the premises (
s112)
take a forensic copy of the hard drive to preserve the evidential integrity of the material (
s110(i)) and if you find the
material that you are looking for, maintain possession of that data
require a person who owns, leases, possesses or controls the computer device or system, or an employee of such a
person, to provide access information (e.g. password) or other information (e.g. de-encryption information) that is
reasonable and necessary to al ow you to access the data (s130). (Any person who fails, without reasonable excuse, to
assist you exercising the search power when requested to do so, commits an offence (s178)).
Carrying out a search of a cell phone
The fol owing is general guidance about searching cel phones:
If a cel phone is seized pursuant to arrest in reliance upon section 88 of the S&S Act or some other without warrant
search power, and there is no urgency in respect of its examination, apply for a search warrant to retain and search the
cel phone and relevant contents. Urgency may arise where evidential material on the phone or accessible from the
phone may be erased or no longer accessible if there is a delay in conducting the search e.g. some applications can be
deleted or inactivated remotely. A delay in accessing information may also hinder a Police investigation. The reason for
the search and what was searched on the cel phone should be documented.
When seeking a warrant to seize and search a cel phone, it is necessary to specify in the warrant that intangible material
on, or accessible from, the cel phone is also sought (
Tupoumalohi v R [2020] NZCA 117). If possible, the type of
intangible material that needs to be searched should be listed. For example, text messages, emails, communications in
applications such as Facebook Messenger or similar types of applications and photographs/videos. Likewise, date
ranges could be identified in appropriate cases. Remember, intangible material that is accessible from the cel phone
should be captured (synchronised) during the termination of the warrant or execution of the search power.
Although it may be impossible to anticipate the exact nature and location of data held on a cel phone, it does not fol ow,
however, that it is always impossible to limit the scope of the warrant to data/information/communications of a specified
type and/or to named applications or classes of applications, instead of simply authorising the search of a cel phone for
a specified purpose (
Ruru v R [2020] NZCA 64).
When a cel phone application is lawful y connected to a remote server or the internet, the cel phone becomes part of the
computer system. Therefore, if Police are authorised to search the cel phone pursuant to a with or without warrant
power, this extends to searching apps if they are within the lawful purpose of the search. A search of internet applications
on a seized cel phone does not require a remote access warrant
(Ruru v R [2020] NZCA 64).
Section 6(c) Official Information Act 1982
Subject to the parameters of a warrant or search being conducted, any search of a phone should extend only so far as is
necessary to investigate the offence for which it was seized. If evidence of other/unexpected offending is identified in
plain sight and searches are specifical y required for the purpose of investigating that new offending, a new search
warrant should be obtained. Section
123 (seizure of items in plain view) of the Search and Surveil ance Act may apply,
but this section is not a search power. For example, if objectionable publications are identified during a search of a cel
phone for drug offending and additional searches of the phone are required to investigate the objectionable publication
offending, a new warrant should be obtained.
See
Douglas v Police [2019]] NZHC 2672 for case law guidance on cel phone (computer) searches.
Section 6(c) Official Information Act 1982
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Section 6(c) Official Information Act 1982
Remote access searches authorised by warrants
A search warrant may authorise a "remote access search", of a thing such as an internet data storage facility. The issuing
officer must be satisfied that the thing is not situated at a physical address that is capable of being entered and searched (s
103
(6)).
Section 6(c) Official Information Act 1982
The warrant application should specify why the applicant believes that the data is not held at an accessible location. The
warrant must specify with sufficient particularity the access information that identifies the thing to be searched remotely, such
as the email address or the logon information relating to the site to be searched.
Note:
You
can not obtain a remote access search warrant merely because a server with web-based material is inaccessible in that
particular circumstance, e.g. because it is overseas or its location has not been researched. In this event, you should:
seek the cooperation of the organisation that hosts the server, or
obtain a production order under s74, or
seek mutual assistance through the Mutual Assistance in Criminal Matters Act 1992.
Additional powers when conducting remote access searches
If you are executing a search warrant authorising a remote access search, you may:
use reasonable measures to access the thing to be searched, and
copy any intangible material from the thing searched if it is the subject of the search or may otherwise be lawful y seized.
(s
111)
Note: There are technical and cross border issues that may arise with "remote access searches" and both the Electronic
Crime Laboratories and Legal Services must be involved in the preparation of these search warrants. The applications wil
require careful scrutiny by both groups.
Principles for data evidence gathering
The general principles of gathering data as evidence are:
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Step Principle description
1
No action taken by law enforcement agencies or their agents should change data held on a computer or storage media
which may subsequently be relied upon in court.
2
Any person accessing original data held on a computer or on storage media must be competent to do so and able to give
evidence explaining the relevance and the implications of their actions.
3
An audit trail or other record of al processes applied to computer-based electronic evidence should be created and
preserved. An independent third party should be able to examine those processes and achieve the same result.
4
The person in charge of the investigation (O/C case) has overal responsibility for ensuring that the law and these
principles are adhered to.
Procedures for accessing computers, securing evidence and creating forensic copies
Fol ow the procedures in
Preservation and recovery of electronic evidence in the 'Crime scenes and forensics' section of the
Police Manual when accessing computer systems and making copies of any intangible material found there to ensure the
integrity of the evidence is preserved.
See
Cloud computing in this chapter for information about cloud computing and how to get information out of "the cloud".
Note: Al remote access search warrant applications and searches must be forwarded to the ECL. Specialist knowledge with
remote access searches in this process is required to ensure national and international laws are observed.
Securing evidence
Section 6(c) Official Information Act 1982
Disposal of forensic copies
If you make a forensic copy, deal with it as fol ows:
If the copy…
you…
does not contain any
must ensure that the forensic copy is "deleted, erased or otherwise destroyed in a way that
"evidential material" (i.e.
prevents retrieval" (s
161(1)). In practical terms, this means that you must delete it so that it is
material that may be seized)
not normal y accessible on the hard drive.
contains a mixture of evidential may retain the forensic copy in its entirety (
s161(2)).
material and non-evidential
material
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Information tending to incriminate
A specified person may not be required to give any information tending to incriminate themselves. However, this does not
prevent you from requiring them to provide information or assistance that is reasonable and necessary to al ow you to access
data held in, or accessible from, a computer system or other data storage device that contains or may contain information
tending to incriminate the person.
Privilege and confidentiality
Powers requiring a person to provide access, information or assistance are subject to the privilege and confidentiality
provisions of the Act. (See Part 13 -
Privilege and immunities under the Act for more information).
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Cloud computing
Information in the cloud
Cloud computing has been around for a long time, but the term is relatively new. Applications, such as Hotmail, Facebook,
Gmail and Dropbox are cloud based applications, because they reside in the cloud, i.e. not on your computer.
Section 6(c) Official Information Act 1982
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Section 6(c) Official Information Act 1982
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Section 6(c) Official Information Act 1982
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Notice and inventory requirements after search or seizure
Notice requirements
There are strict notice requirements under sections
131 and
132 of the Act to be fol owed by persons exercising a search
power or who conduct a remote access search.
Form of written notice when exercising a search power
The form of notice given before or after a search and seizure varies depending on whether the search was conducted with or
without a warrant and whether or not the occupier or person in charge of the vehicle was present during the search.
For
you must:
searches conducted when occupier or
give that person before or on initial entry:
person in charge of vehicle or thing
is
copy of the warrant and attached privilege information contained in the
lawfully present
'Notice to occupier, or the person in charge of vehicle or other thing present
during search', or
if a warrantless search, a copy of the 'Notice to person present during
warrantless search' (POL1275).
Note:
The exception to this requirement is when you have reasonable grounds to
believe an unannounced forced entry is justified in the fol owing circumstances:
a person is not lawful y present (e.g. a burglar), or
compliance would:
endanger the safety of any person
prejudice the successful exercise of the entry and search power, or
prejudice ongoing investigations.
(
s131(1))
searches conducted when occupier or
on completion of the search, leave in a prominent position at the place, or in or on
person in charge of vehicle or thing is
not the vehicle or other thing:
present
a copy of the warrant and attached privilege information contained in the
'Notice to occupier, or the person in charge of vehicle or other thing not
present during search', or
if a warrantless search, a copy of the 'Notice to person not present during
warrantless search' (POL1275).
(s131(4))
searches resulting in things seized
at the time the thing is seized, or as soon as practicable after the seizure and no
later than 7 days after that seizure, provide:
to the occupier of the place, or the person in charge of the vehicle or other
thing, and
to every other person you have reason to believe is the owner of the thing
seized
the fol owing:
an inventory of items seized (POL 268) and the accompanying 'Notice to
owners and others in relation to things seized,
and
a copy of the authority (i.e. a copy of the warrant, POL1275) if the owner is
different from the occupier or person in charge and has not previously
received he relevant form
(
s133)
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Note:
When a search warrant prints off the Search and Surveil ance System it wil have two attachments, one to be used if the owner
is present, the other when they are not. Both attachments have appropriate headings to distinguish them.
Case Law
Section
131(1)(b) of the Search and Surveil ance Act provides mandatory requirements of identification and notice for a
warrantless search. R v Norling [2018] NZDC 3979 is a reminder to constabulary employees that the notification requirements
in section 131(1) of the Act must be complied with. A failure to do so may result in a finding that the search is unlawful.
Postponing compliance with notice and inventory requirements of items seized
See
Application to postpone compliance for information about when compliance with the requirements to provide written
notices about the exercise of a search power and of things seized during the search may be deferred.
Procedure for recording seized items and providing required notice
Fol ow these steps if you execute a search warrant or exercise any warrantless search power resulting in the seizure of items.
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Part 5 - Carrying out search powers with or without warrants
Step Action
1
Distinguish whether the search is conducted with or without a warrant and whether or not the occupier or person in
charge of the vehicle is present or not present during the search. Then fol ow the appropriate guidelines in the table
'
Form of written notice when exercising a search power' above.
2
Complete a property record sheet (POL 268), sometimes referred to as an
inventory of items, in triplicate including:
from whom the things were seized and the location
a ful description of what was seized
whether seized under a search warrant or warrantless search power.
Ensure the chain of custody of seized items is properly recorded on the reverse side of the
POL 268.
(If no items were seized, this wil have been noted on the warrant or the POL1275 in a warrantless search).
3
Give the original of the completed POL 268 to the occupier of the place, or person in charge of the vehicle or other thing.
The second page of the POL 268 contains the information required under section
133(1) about the authority for the
seizure and rights of access to the items and to
claim privilege.
If it is not practicable to complete and leave the POL 268 and a copy of the authority for the search at the time of seizure,
you must provide them to the occupier of the place or the person in charge of the vehicle or other thing
within 7 days or
seek
postponement under section 134.
Note: You
do not have to provide this information to the occupier of the place or person in charge of the vehicle or other
thing from which the seizure took place, if you are satisfied that none of the items seized are owned by that person.
(s
133(2))
4
If the owner, occupier of the place, or person in charge of vehicle or other thing is
not present when things are seized,
leave the:
completed POL 268 (i.e. the inventory of items seized and notice to owners and others)),
and
the search warrant and appropriate attached notice
or POL1275 'Notice to person not present during warrantless
search'
at the address or in the vehicle in a prominent place.
If it is not practicable to complete and leave the documentation, you must provide it to the occupier of the place or the
person in charge of the vehicle or other thing
within 7 days or seek
postponement under section 134.
(s
131(4))
5
If you have conducted a remote access search, e.g. of an internet data storage facility, fol ow the notice requirements for
remote access searches below.
6
Retain the duplicate copy of the POL 268 on the file and the triplicate copy remains with the seized property.
Limits on who can be treated as occupiers or people in charge
No person:
under 14 years of age (unless found driving a vehicle with no passenger of or over the age of 14 years with authority to
consent to the vehicle's search), or
who you have reasonable grounds to believe is not the occupier of the place or person in charge of the vehicle or other
thing.
can be treated as the occupier of the place or the person in charge of a vehicle or other thing for the purposes of sectio
n
131
and sections
133 to
135.
(s131(6))
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Part 5 - Carrying out search powers with or without warrants
Notice requirements for remote access search
After completing a remote access search, you must send an electronic message to the email address of the thing searched:
attaching a copy of the search warrant, and
setting out:
a description of the thing remotely accessed during the search
the date and time of the commencement and completion of the search
the name and ID of the person who had overal responsibility for the search
the address of the office to which inquiries should be made.
If you are unable to deliver the required electronic message (or it is returned undelivered), you must take al reasonable steps
to identify the user of the thing searched and to send the required information to them.
(s
132)
Duty to give notice to owners of things that are seized
In addition to providing the occupier of a place or the person in charge of the vehicle or other thing notice of what is seized,
section 133(1) requires you to provide to
any person you have reason to believe is the owner of the thing seized:
written notice specifying what was seized and information about the person's right to have access to the thing or claim
privilege in respect of the thing seized,
and
a copy of the authority for the search (i.e. the search warrant or for warrantless searches, the name of the enactment
under which the search took place.
The section also provides that this information must be provided as soon as practicable after the seizure and, in any case,
within 7 days.
You must take care when providing this information to owners fol owing seizure. Search warrants or advice of the exercise of a
warrantless power and inventory of items seized (POL 268) al contain details of the location from where the items were seized
and except for notices fol owing warrantless searches, the identity of the person from whom they were seized. A POL 268 may
also contain details of property belonging to a number of owners. Providing this personal information to the owner(s) of stolen
property which is recovered, may pose a threat to the safety of the person from whom it was seized, e.g. the owner of a stolen
item may be a gang member wanting retribution.
There are two courses of action available to you if you have concerns about the disclosure of identity information when
complying with section
133:
Option Action
1
Delete or mark out the identity and location on the inventory (POL 268) copy and the location of the search on the
search warrant copy or the warrantless search power notice copy before providing to the owner.
Seek advice from Legal Services if the owner disputes the deletions from the documents.
2
Apply to a Judge for postponement of notice and inventory requirements under sectio
n 134.
This option has limitations in that the application must be made within 7 days after the warrant is final y executed or the
warrantless search power is exercised.
Notice and inventory requirements relating to production orders
Use the POL 268 to record items produced pursuant to a production order with appropriate amendments. However,
do not
give the Notice to Owners and Others in Relation to Things Seized on the back of the POL 268 to the person producing the
items(s) and others who may have a legal or equitable interest in the item(s). The relevant notice information is contained in
the Production order itself and a copy of this must be provided.
Procedure when seizing items for non-payment of fines
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Part 5 - Carrying out search powers with or without warrants
After seizing items, you must immediately deliver to the defendant, or leave in a conspicuous place on the premises:
a list identifying the items seized, and
a notice directing the defendant or the substitute for the defendant to notify the Registrar, within 7 days after the date of
the seizure, whether the defendant or the substitute owns or has an interest in the property and to give the Registrar the
name and address of any other person who owns or has an interest (including a lease or security interest) in the
property.
Note: If you use the 'Property Sheet' (POL 268) to list the item(s) seized, then the 'Notice to Owners and Others in Relation to
Things Seized' accompanying the form is not appropriate for use in these circumstances. Seek guidance from a Legal adviser
with preparing an appropriate notice.
Deliver al seized items to the registrar.
(s99(5)&(6) Summary Proceedings Act)
Further information
For further information about seizing property, see also:
Accessing and seizing computer material in this chapter
Postponing compliance with notice requirements in this chapter
the
Procedures applying to seized and produced things chapter
the
Privilege and immunities under the Act chapter.
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Part 5 - Carrying out search powers with or without warrants
Postponing compliance with notice requirements
Application to postpone compliance with providing notices
If you exercise a search power, you may apply to a judge under sectio
n 134 for a postponement of the obligation to comply
with providing a copy of the search warrant or other authority or a written notice about the search and seizure on the grounds
that compliance would:
endanger the safety of any person, or
prejudice ongoing investigations.
If the judge is satisfied these conditions exist, they may postpone the obligation to provide a copy of the search warrant,
authority or written notice for a specified period not exceeding 12 months.
Timeframes
An application must be made in the case of:
a search warrant, at the time of the initial application or until the expiry of 7 days after the warrant is final y executed, or
any other entry and search power, until the expiry of 7 days after the search power is exercised.
Application for further postponement or dispensation
If you obtained a postponement order under section
134(3) of the Act, you may, before the expiry of that order, apply to a
District Court for a further postponement or dispensation on the grounds that compliance would:
endanger the safety of any person, or
prejudice ongoing investigations.
If the judge is satisfied these conditions exist, they may grant a further postponement for a further specified period not
exceeding 12 months, or order a permanent dispensation from the obligation to comply.
Note: An application for a further postponement may only be made once.
Restrictions on postponing compliance relating to seized things
A district court judge may not grant any postponement of or dispensation from, an obligation in respect of any thing that has
been seized, unless the thing seized is:
a copy or clone of any information taken or made, or
possession of a thing by the person from whom it was seized is unlawful under New Zealand law (e.g. a control ed drug
found in the possession of a member of the public in circumstances in which possession is an offence against the Misuse
of Drugs Act 1975).
(s
135)
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Part 5 - Carrying out search powers with or without warrants
Search warrants, production orders and examination orders involving
media organisations
Background
From time to time, news media organisations have information about or record the commission of offences on film, tape,
photographs or sound recordings while they are covering newsworthy events. Such media material can be important to
subsequent Police enquiries or in judicial proceedings and the Police may be duty bound to obtain:
an examination order for the purpose of seeking information, or
a search warrant or production order for the purpose of seizing or having produced such film, tape, photographs, sound
or digital recordings.
However, news media organisations are very sensitive to the Police having recourse to their information or material for any
reason and consider such access to be a potential threat to media freedom. Their principal concern is that reporters, film crews
and photographers may be at risk if they are ever perceived by offenders as being gatherers of evidence for Police.
To minimise the risk of complaints when the Police execute search warrants on the premises of media organisations or serve
production orders or examination orders, and to ensure compliance with the Search and Surveil ance Act 2012 you must fol ow
the procedures below.
Procedural guidelines (search warrants, production orders and examination orders)
Act
only where the offence is serious enough to warrant the obtaining of:
a search warrant, or production order and cannot be otherwise resolved without the seizure of any film, photographs,
tape, sound or digital recordings, or
an examination order and cannot be otherwise resolved without obtaining the information.
Fol ow these general steps (not necessarily in order) in addition to other requirements detailed in the Search chapter for
exercising search, production and examination powers general y.
Step Action
1
Before you apply for a search warrant or production order obtain the authority of:
a Police Executive member in the case of Police National Headquarters, or
a District Commander in the case of a district matter.
If you wish to apply for an examination order you must have the approval of:
a Deputy Commissioner, or
an Assistant Commissioner, or
the District Commander (other than an acting District Commander) of the Police district in which the constable is
stationed.
2
Make an application to a Judge unless in the circumstances this is impractical.
3
Maintain close liaison with the "manager" of the particular news media premises prior to the execution of the search
warrant, production order or examination order.
Note:
The exception being where the manager is a suspect or is otherwise involved in the subject matter of the search
warrant.
If the manager is a suspect, seek a search warrant rather than a production order.
The reasons for the execution of a search warrant, production order or examination order should always be explained
where it is reasonably practical to do so.
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Part 5 - Carrying out search powers with or without warrants
Step Action
4
Be aware that journalists have rights conferred on them under section
68 of the Evidence Act 2006 to protect certain
sources.
If you are serving a production or examination order, or intend to exercise a search power under a search warrant on the
manager of a news media outlet and you believe they may be able to claim rights to protect certain sources or other
privilege, then you:
must give the manager or their lawyer, a reasonable opportunity to claim a privilege recognised under Subpart 5 of
Part 4 of the Search and Surveil ance Act 2012, and
may, if you are unable to identify or contact the manager or their lawyer, within a reasonable period:
apply to a Judge of the High Court (in relation to journalist's rights to protect certain sources) or to a Judge of
the District Court (in respect of al other privileges) for a determination as to the status of the thing, and
do any thing necessary to enable the court to make that determination.
(s
145)
5
If you receive or expect to receive a claim of privilege and are unable to search a thing pending resolution of the privilege
claim, then fol ow the 'Procedures when searches involve privileged material' (steps 4 to 9) in the chapter "Part 13 -
Privilege and immunities under the Act".
Note: You may stil secure the thing to be searched, but must not search it, and deliver the thing or copy of it to the court
to enable a determination of a privilege claim.
6
Where you use any seized material to facilitate interviews of suspects, you should not disclose the source of the material
to the persons being interviewed.
7
Avoid cal ing news media personnel, such as reporters, film crews or photographers as witnesses. If this is not
practicable, serve a witness summons that describes the seized material being produced in evidence, to preserve the
impartiality of the witness.
8
In accordance with normal Police practices of evidential disclosure, provide defence counsel with access to seized film,
photographs, tape, sound or digital recordings prior to any judicial hearing.
9
You should notify an authorised person who represents the particular news media organisation involved of any film, tape,
sound or digital recording or photograph that is copied. The notification should include the reasons and the authorisation
for doing so, either under the Search and Surveil ance Act 2012 or with consent from that authorised person.
10
Advise the Manager: Brand and Media at PNHQ as soon as possible where a search warrant is executed on the
premises of a media organisation or a production order or examination order is undertaken, so that any media questions
directed to the Commissioner can be quickly dealt with.
Notice to Crown Prosecutor
The
procedural guidelines must be brought to the notice of the Crown Prosecutor in any case where it is intended to cal a
member of the news media to give evidence relating to any film, photograph, tape, sound or digital recording seized by Police.
Protection of journalists' sources
Note the provision under section
68 and
69 of the Evidence Act 2006. The privilege conferred on journalists under section 68 is
recognised for the purposes of the Search and Surveil ance Act 2012 (see section 136). See the section 'Procedural
guidelines (search warrants, production orders and examination orders involving media organisations' in this chapter.
Printed on : 08/06/2021
Printed from :
https://tenone.police.govt.nz/pi/part-5-carrying-out-search-powers-or-without-warrants
41/41
Part 6 - Road blocks and stopping vehicles for search
purposes
Table of Contents
Table of Contents
2
Summary
3
Introduction
3
Definition
3
Related information
3
Stopping and moving vehicles to search
4
Stopping vehicles with or without warrant to search
4
Stopping vehicles under the Land Transport Act 1998
4
Moving vehicle for purpose of search or safekeeping
4
Duty to remain stopped
4
Duty to provide information to vehicle's driver
5
Stopping vehicles without warrant to effect arrest
5
Powers and duties after vehicle stopped
5
Procedures for stopping vehicles
5
Power of arrest
5
Establishing a road block for purpose of arrest
6
Obtaining authorisation for a warrantless road block
6
Duration and record of warrantless road block authorisation
6
Powers under authorised road blocks implemented without warrant
6
Power of arrest
6
Procedures for establishing road blocks
7
Community impact assessment for establishing road blocks
8
Use of Police checkpoints and conducting traffic stops
9
Primary purpose of checkpoints and traffic stops
9
Taking photographs of people at road blocks
10
Lawful grounds to photograph people
10
Legislation regulating the taking of photographs of people
10
Search and Surveil ance Act 2012
10
Policing Act 2008
10
Privacy Act 2020
10
Rules and obligations on Police photographing people at road blocks
10
Rules and obligations with obtaining consent
10
Rules and obligations under the Privacy Act 2020
11
How can photographs of people be used
11
Storage and destruction of photographs
11
Part 6 - Road blocks and stopping vehicles for search purposes
Summary
Introduction
This chapter outlines powers under the
Search and Surveil ance Act 2012 to stop and move vehicles and to establish road
blocks
for the purpose of search and/or to effect arrest.
Powers to stop and move vehicles or to close roads under th
e Land Transport Act 1998 or under other legislation for
emergency purposes (e.g. in a civil defence emergency)
must not be used for the purpose of search.
Definition
Curtilage means an area attached to a dwel ing house and forming one enclosure with it. In an urban area it would include the
area within a dwel ing's fenced boundary.
Related information
See:
these
Road Policing chapters for information about stopping and moving vehicles in relation to traffic enforcement and
management:
‘
Power to stop vehicles and powers once stopped’ in the
'Traffic Patrol Techniques' chapter
‘
Policing Outlaw Motorcycle Gang Runs'
the
Perimeter control chapter for information about:
Police powers to close roads, stop vehicles and establish road blocks in response to critical incidents under other
enactments; and
good practice for:
selecting the location for the road block or checkpoint
setting up a road block or checkpoint
operating a roadblock or checkpoint
stopping vehicles at roadblocks/checkpoints.
the
Community Impact Assessments (CIAs) chapter for information about community impact assessments.
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Part 6 - Road blocks and stopping vehicles for search purposes
Stopping and moving vehicles to search
Stopping vehicles with or without warrant to search
You may stop a vehicle to conduct a search:
under a power to search…
if you are satisfied that…
without a warrant
grounds exist to search the vehicle
with a warrant
the warrant has been issued and is in force.
On the request of any person (includes not only the driver, but also any passenger) affected by the exercise of a power to stop
a vehicle for the purpose of search under section 121, you must:
identify yourself either by name or by unique identifier
state the name of the enactment under which the search is taking place and the reason for the search, unless it is
impracticable in the circumstances
if not in Police uniform, produce evidence of your identity.
(s
121)
Stopping vehicles under the Land Transport Act 1998
The
Land Transport Act 1998 (LTA) cannot be used as an excuse to stop a vehicle for an unrelated purpose.
Note: If police are interested in a vehicle or its occupants for some non-LTA purpose, this wil not disqualify police from
stopping the vehicle for a legitimate LTA reason should one arise. Once the legitimate purpose is spent, however, the vehicle
is free to go as a matter of law. To delay the vehicle longer than is necessary may amount to unlawful detention.
See the fol owing case law for further guidance:
Tahapehi v Police [2018] NZHC 2666: Section
114 of the Land Transport Act 1998 (LTA) – Vehicle stop for genuine LTA
purpose was lawful though police’s initial interest in vehicle was for non-LTA reasons.
McGarrett v R [2017] NZCA 204: Stopping a car on drug run using the Land Transport Act and warrantless search of
vehicle.
Baylis v R [2018] NZCA 271: Incorrect exercise of powers when stopping a vehicle under the Land Transport Act 1998.
Moving vehicle for purpose of search or safekeeping
You may move a vehicle to another place:
if...
and you have...
you find or stop the vehicle
lawful authority to search the vehicle, but it is impracticable to do so at that place, or
reasonable grounds to believe it is necessary to move the vehicle for safekeeping.
(s
122)
Duty to remain stopped
You may require the vehicle to remain stopped for as long as is reasonably necessary for the exercise of any powers in
respect of:
the vehicle, or
the occupants of the vehicle.
(s
128)
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Part 6 - Road blocks and stopping vehicles for search purposes
Duty to provide information to vehicle's driver
Immediately after stopping the vehicle, you must:
identify yourself to the driver
state the name of the enactment under which the search is taking place and the reason for the search, unless it is
impracticable in the circumstances
if not in Police uniform, produce evidence of your identity.
(s
129)
Stopping vehicles without warrant to effect arrest
You may stop a vehicle without warrant to arrest a person if you have reasonable grounds:
to suspect that a person:
is unlawful y at large, or
has committed an offence punishable by imprisonment, and
to believe the person is in or on the vehicle.
(s
9)
Note: "Unlawful y at large" includes:
a person for whose arrest a warrant is in force, except when it is a fines warrant issued unde
r Part 3 of the Summary
Proceedings Act 1957
anyone who has escaped from lawful custody
a special or restricted mental health patient who is absent without leave.
Powers and duties after vehicle stopped
If you stop a vehicle under section
9 you may:
require any person in or on the vehicle who you have reasonable grounds to suspect is unlawful y at large or has
committed an offence punishable by imprisonment to supply their name, address, other contact details and date of birth
search the vehicle to locate the person, if you have reasonable grounds to believe they are in or on the vehicle
search the vehicle to locate property that is evidential material in relation to any offence in respect of which the vehicle
was stopped, if the person:
has been arrested, or
is seen fleeing from the vehicle before they can be arrested.
Before searching, you must tel the driver the object of the proposed search if they are not the person suspected of being
unlawful y at large or of committing an offence.
(s
10)
Procedures for stopping vehicles
Fol ow the procedures for stopping vehicles in the
Traffic patrol techniques Police Manual chapter.
Note in particular that Police policy requires that when stopping a vehicle you
must:
be wearing a Police uniform or distinctive cap, hat or helmet with a badge of authority affixed to that cap, hat or helmet,
or
be fol owing immediately behind the vehicle, and displaying flashing blue lights or flashing blue and red lights,
and/or
sounding a siren.
Power of arrest
If you are exercising a power to stop and search a vehicle, you may arrest the person if they fail to stop when required or to
comply with a requirement under section 128 to remain stopped.
(s
177)
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Part 6 - Road blocks and stopping vehicles for search purposes
Establishing a road block for purpose of arrest
Obtaining authorisation for a warrantless road block
If you are a
senior constable (holding or acting in a position level of sergeant or above) you may authorise the establishment
of a road block (oral y or in writing) if you have reasonable grounds to:
believe that in or on a vehicle there is a person who you have reasonable grounds to suspect:
has committed an offence punishable by a term of imprisonment or
is unlawful y at large, and
suspect the vehicle wil travel past the place where it is proposed the road block be established.
You must be satisfied that, as far as is reasonably practicable, the safety of al road users wil be ensured in the area where the
road block wil be established.
(s
30)
Duration and record of warrantless road block authorisation
An authorisation to establish a road block:
is valid for an initial period not exceeding 24 hours specified by the person giving the authorisation, and
may be renewed from time to time by a district court judge for a single further period not exceeding 24 hours specified in
writing by the judge.
If you authorise a road block, you must keep a written record of:
the location
the period(s) for and grounds on which authorisation was granted or renewed.
(s
31)
Powers under authorised road blocks implemented without warrant
Any constable may do any or al of these things when a road block is authorised.
Powers
Establish Establish a road block at the place specified in the authorisation.
road block
Stop
Stop vehicles at or in the vicinity of the road block.
vehicles
Require
Require any person in or on any vehicle stopped by the road block who you have reasonable grounds to suspect
particulars has committed an offence punishable by imprisonment to state their name, address, and date of birth.
Search
Search the vehicle for the purpose of locating a person who has committed an offence (punishable by
vehicle
imprisonment) or is unlawful y at large (excluding non-payment of fines warrant), if you or any other constable has
reasonable grounds to believe the person is in or on the vehicle.
(s
32)
You may also require that a vehicle
remain stopped for as long as is reasonably necessary to enable you to exercise any of
the powers above in respect of the vehicle or its occupants.
(s
128)
Power of arrest
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Part 6 - Road blocks and stopping vehicles for search purposes
You may arrest the person if they fail to stop when required or to comply with a requirement under section 128 to remain
stopped.
(s
177)
Procedures for establishing road blocks
Fol ow the procedures for establishing road blocks and checkpoints in th
e Perimeter control chapter.
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Part 6 - Road blocks and stopping vehicles for search purposes
Community impact assessment for establishing road blocks
Road blocks can be intimidating to vulnerable people and innocent members of the community, particularly if carried out by
armed Police in ful operational uniform. Executing road blocks for the purpose of searches should avoid compromising or
undermining wider community support, confidence and reassurance.
The rationale for establishing a road block must be lawful and reasonable. To assist with gauging reasonableness, a
community impact assessment (CIA) must be undertaken of the adverse impact of establishing road blocks:
where vulnerable people are present
on the community and interest groups.
Community impact assessments must be a routine part of al risk assessments and should be conducted in writing during the
planning stage before establishing a road block. Use the Community Impact Assessment form on Police Forms for this
purpose. Be prepared to carry out an ongoing mental CIA as the situation changes during execution of the road block.
Community impact assessments may be done mental y, if it is impracticable due to situations of emergency or urgency. In
these circumstances, record the considerations and decisions later in a notebook or a CIA form.
See the
Community Impact Assessments (CIAs) chapter for guidance about how to carry out a community impact assessment.
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Part 6 - Road blocks and stopping vehicles for search purposes
Use of Police checkpoints and conducting traffic stops
Primary purpose of checkpoints and traffic stops
Police cannot establish a checkpoint outside of a particular location, or undertake stopping a vehicle, for the purpose of
obtaining identifying details, unless the primary purpose is to enforce transport legislation.
The use of Police checkpoints or conducting traffic stops under the
Land Transport Act must be for genuine and proper Land
Transport Act enforcement purposes.
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Part 6 - Road blocks and stopping vehicles for search purposes
Taking photographs of people at road blocks
A person must not be detained at a roadblock for the purpose of having their photograph taken without a lawful ground for
doing so.
Lawful grounds to photograph people
Police can take photographs lawful y in public when people are not detained, consent is given or when authorised by
legislation. The common law power to photograph citizens is subject to strict limits. In particular, photographs can only be
taken by Police for proper law enforcement purposes, such as the prevention and detection of crime, the investigation of
al eged offences and the apprehension of suspects or persons unlawful y at large. The common law power must also be
considered alongside legislation governing the taking of photographs of people.
Legislation regulating the taking of photographs of people
The legal basis and justification for Police taking photographs of people is regulated by the:
Search and Surveil ance Act 2012
Policing Act 2008
Privacy Act 2020.
Search and Surveillance Act 2012
Taking photographs involves the use of a camera which is a "visual surveil ance device" under the Act. It may be lawful without
warrant to use a visual surveil ance device to take photographs at a road block if the activity does not involve:
a trespass on land or goods, or
the observation of private activity on private premises or the curtilage of private premises for a period longer than 3 hours
in a 24 hour period, or 8 hours in total.
Policing Act 2008
Section
32 of the Policing Act 2008 provides Police with the power to take identifying particulars of a person at a place (road
block) being used for Police purposes who is in lawful custody of the Police and is detained for committing an offence.
Identifying particulars include the person's photograph. Identifying particulars must be taken in a manner that is reasonable in
the circumstances, for example, consider the suitability of the location in terms of privacy and potential risks to the safety of the
person and Police.
Privacy Act 2020
The Privacy Act 2020 governs the way in which Police col ect, use and disclose personal information about identifiable
individuals. The taking of photographs is a col ection of personal information. Accordingly, Police employees must ensure that
their actions comply with these relevant privacy principles.
Privacy Explanation
Principle
Principle Personal information must not be col ected unless the information, connected with a function or activity of the
1
agency (in the case of Police), is col ected for a lawful purpose, and necessary for that purpose.
Principle Requires that Police take reasonable steps to ensure that the individual is aware they are being photographed, of
3
the purpose of Police taking the photograph, and whether it is authorised, required by law, or voluntary.
Rules and obligations on Police photographing people at road blocks
Rules and obligations with obtaining consent
If a person gives their consent to being photographed, you should record the consent in writing or on a Police mobility device.
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Part 6 - Road blocks and stopping vehicles for search purposes
Note: The rules and obligations for consent searches under Subpart 2 of Part 4 of the Search and Surveil ance Act 2012 do
not apply but provide a useful reference for obtaining informed consent in accordance with the Privacy Act.
See
Part 4 - Consent searches for information about:
purposes for which a consent search may be undertaken
advice that must be given before searching
withdrawal of consent
circumstances where search by consent is unlawful
restrictions on persons under 14 years to consent
disadvantages of using consent searches.
Rules and obligations under the Privacy Act 2020
Under Privacy
Principle 3 of the Privacy Act 2020, Police must take reasonable steps when photographing a person to ensure
that the person is aware:
that the photograph is being taken
of the purpose for which the photograph is being taken
whether taking the photograph is authorised, required by law or voluntary
of who wil receive and hold the photograph
their rights of access, and
of where the photograph wil be held.
How can photographs of people be used
If photographs of people have been lawful y and reasonably obtained, they may be used for the fol owing purposes:
the maintenance of the law, or
prevention, detection, investigation, and prosecution of offences,
or
preventing or lessening a serious threat to public safety.
(
Privacy Principle 10, Privacy Act 2020)
Storage and destruction of photographs
Photographs must be stored and destroyed under these relevant instructions:
Search chapter,
Part 12 - Procedures applying to seized and produced things in relation to evidential material
Photography (Forensic imaging) in relation to prisoners' photographs and photographs for Police operations.
Printed on : 08/06/2021
Printed from :
https://tenone.police.govt.nz/pi/part-6-road-blocks-and-stopping-vehicles-search-purposes
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Part 7 - Methods for searching places and vehicles
Table of Contents
Table of Contents
2
Executive summary
3
Overview
4
Purpose
4
Examples of when the search methods can be applied
4
Related information
4
Planning and conducting a search
5
General search processes outlined
5
Defining the objective
5
Making a reconnaissance
6
Making an appreciation
6
Briefing
6
Ensuring evidence is not overlooked
7
Specialist Search Group
7
Search methods (mainly outdoors)
8
Introduction
8
Sweep
8
Team leader's role
8
Contact searches
9
Paral el lane
9
Grid
10
Double strip
10
Roadside searches
10
Marking boundaries
10
Searching premises
11
Preparing to search
11
Searching for items
11
The interior
11
The exterior
12
Searching for suspects
13
Entering and searching buildings
13
Searching open areas
15
Searching for items
15
Searching water
15
Searching for suspects
15
Searching for missing persons
15
Searching motor vehicles, ships and aircraft
17
Searching motor vehicles
17
Search areas
17
Searching procedures
17
Searching ships
18
Searching aircraft
18
Part 7 - Methods for searching places and vehicles
Executive summary
Key things to note:
When planning searches, define the objective(s) and consider al known factors to decide on the best course of action.
Be careful, methodical and tidy, so that you do not overlook items or make mistakes in recording and label ing them.
Have respect for the premises and property - remember that you are dealing with someone else’s personal possessions.
If you have to search at night, make a further examination in daylight.
When appropriate, (e.g. when the search may change or damage the appearance of the area) photograph / video the
area before beginning the search. Photograph the scene again when the search is complete.
Clearly mark or sign areas that have been properly searched.
Accurately mark the position of seized things on a map (sketch plan) and label the item with identifying details.
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Part 7 - Methods for searching places and vehicles
Overview
Purpose
This part of the ‘
Search’ chapter describes various methods that can be used for carrying out searches of:
outdoor spaces, including open areas, roadsides, water
the interior and exterior of premises
vehicles and transport facilities.
It also outlines general procedures for planning searches (mainly outdoor searches) including:
defining objectives
making a reconnaissance and/ or appreciation
briefing searchers.
See related information below for links to more specific procedures involving search powers and evidential searches.
Examples of when the search methods can be applied
The methods described can be used for any type of search and for any purpose, including searches:
carried out by way of search warrant or warrantless search powers under th
e Search and Surveil ance Act 2012
of crime scenes and other evidential searches
for missing persons, suspects etc.
Related information
More specific information and procedures is found in in these chapters:
Carrying out search powers with or without warrant includes information about:
risk assessment when planning searches
separating individuals posing risk from premises to be searched
procedure for planning searches
mandatory notifications
entry procedures
Crime scene examination (covers such things as preserving evidence and evidence integrity and decontamination zones)
Searching people
Improvised explosive devices and bomb threats
Control and command
‘
Search (for bodies of homicide victims)’ in the
‘Homicide and serious crime investigations’ chapter.
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Part 7 - Methods for searching places and vehicles
Planning and conducting a search
General search processes outlined
The process outlined in this table applies general y to al searches. However, some modifications may be required depending
on the nature and purpose of the search, e.g. when search powers (with or without warrant) are being exercised, or the search
is to locate evidential material at crime scenes or a missing person.
Step Action
1
Define the objective when assigning the task.
2
Make a reconnaissance unless time is critical. If there is no time for a reconnaissance, obtain advice and guidance from
a person familiar with the area.
3
Make an appreciation considering al known factors to decide on the best course of action.
4
Make a plan which must include an organisation chart. It must also specify the method of search. See Search methods
(mainly outdoors).
If the search involves the exercise of search powers, see
‘Carrying out search powers with or without warrant’ for
information about:
risk assessment when planning searches
separating individuals posing risk from premises to be searched
procedure for planning searches
mandatory notifications
entry procedures.
5
Ensure that you have sufficient tools and equipment.
6
Brief searchers and support staff. They must know the background to the search, what is happening, and what is
required of them.
See ‘Operations Orders’ in
‘Part 2 – Planning, control and command’ of the ‘Control and command’ chapter.
Note: Except during searches for dangerous escapees or offenders, formal Orders Groups are seldom held.
7
When the team leaders arrive at the search scene, brief them on the search area, topography and boundaries. Team
leaders then assemble their sections, draw the necessary equipment and move to their search areas.
8
Depending on the method of search, the team may, on reaching its position, start searching, lay out boundary markers or
await the search control er's instructions.
As each team searches, the team leader must record the areas searched, and who has searched them.
9
If necessary, consider whether the services of the
'Specialist Search Group' should be deployed.
Defining the objective
When assigning the task, tel the operation commander or O/C scene:
the reason for the search
exactly what things or people are sought
the time-lapse, and any causes of delay
the location, area and boundaries of the search
limitations in human resources, time, security or logistics.
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Part 7 - Methods for searching places and vehicles
Making a reconnaissance
Unless time is critical, make a reconnaissance to establish:
size of the area
type of terrain
obstacles or features requiring specialist personnel or equipment, such as cliffs, rivers, swamps or caves
hazards requiring safety precautions
possible sites for observation points, search headquarters and base
access for transport
any security problems.
Establishing a radio listening post wil enable you to act quickly on information gained.
The reconnaissance can be on foot, or in a vehicle or aircraft
. Helicopters are especial y useful because they can hover, carry
out low-level reconnaissance and land almost anywhere. If you are working on foot, you can use dogs. They may rapidly find
evidence that wil remove the need for a ful -scale search. Choose the method that best meets the needs of the operation and
the availability of time.
Making an appreciation
Consider:
the location
the thing or person sought
terrain and any hazards
priorities
time factors, such as:
if you are searching for a person, how long they have been in the open
daylight hours available
whether temporary lighting is possible
the time available for the search
travel time to the scene
the time required for briefings and Orders Groups (See ‘Operations Orders’ in ‘Part 2 – Planning control and
command’ of the ‘Control and command’ chapter)
climatic conditions and weather forecast
human resources required, and their level of expertise
water and toilet facilities
safety and security
morale
administration and logistics, including:
communications
accommodation
catering
transport
maps
equipment
any other operational requirements.
Briefing
The briefing provides an opportunity for the search control er to motivate the search teams and should include:
reason for the search
the item or person sought
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Part 7 - Methods for searching places and vehicles
search method
what to do on finding the item or person
degree of confidentiality
expected duration of the search
composition of the search teams
command structure
hours of duty
what to wear
logistics, such as catering, accommodation and transport.
Ensuring evidence is not overlooked
This table provides guiding principles for searches general y to ensure evidence is not overlooked.
Step Action
1
Be careful, methodical and tidy, so that you do not overlook items or make mistakes in recording and label ing them.
Have respect for the premises and property - remember that you are dealing with someone else's personal possessions.
2
For more effective control and results, use a minimum number of enforcement officers or assistants. This wil minimise
distractions and help to prevent evidence being overlooked.
3
Do not search at night. If this is unavoidable, make a further examination in daylight.
4
In appropriate situations, consider photographing the area before beginning the search. This is particularly important
when the search may change or damage the appearance of the area. Ensure that everything is photographed, and
consider using a video camera. When the search is complete, photograph the scene again.
5
Once the search is finished, consider repeating it, al ocating different areas to different enforcement officers or assistants.
6
When supervisors are satisfied that an area has been properly searched, they should withdraw their team, mark the area
with a sign or other mark such as emergency tape or chalk, and advise the assigned officer in charge of 'Search Control'.
7
When a thing is found and is to be seized, mark its position on a map (sketch plan) by recording its distance from a fixed
point. The thing can then be accurately re-placed for any reconstruction. When it is moved or seized, it must be label ed
with:
its description
where it was found
who found it
the date and time of discovery.
Specialist Search Group
Specialist Search Teams forming part of the Specialist Search Group (SSG) have been established in Auckland, Wel ington
and Christchurch to provide specialist support to general police.
The teams' primary role is to search for improvised explosive devices and other dangerous items or substances. However,
their training and equipment enable them to be deployed in other contexts, such as crime scene examinations, exhibit recovery
and 'booby-trapped' cannabis plantations. They are experienced in searching vehicles, aircraft and vessels.
To achieve maximum efficiency, ordinary Police employees must first, where practical, fol ow the procedures in this chapter.
For detailed information about when specialist search teams may be deployed and the services they can provide, refer to the
Specialist Search Group chapter.
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Part 7 - Methods for searching places and vehicles
Search methods (mainly outdoors)
Introduction
The information in this topic focuses mainly on outdoor searches. See also the
'Crime scene examination' chapter, particularly
for indoor searches.
Section 6(c) Official Information Act 1982
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Section 6(c) Official Information Act 1982
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Section 6(c) Official Information Act 1982
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Part 7 - Methods for searching places and vehicles
Searching premises
Preparing to search
Obtain information about the layout of the premises. If you are searching a large building, ask maintenance personnel, janitors
and supervisors. Also obtain building and utilities plans, and keys to locked areas, rooms and facilities.
For crime scene searches:
When a detailed search of a total area is not required, consider starting the search from the outside boundary of the
property, and fol owing the offender's route, working systematical y and methodical y towards the point of entry.
Remember that searching for evidence can destroy other evidence. Set priorities and determine the sequence that the
search wil take.
Searching for items
Section 6(c) Official Information Act 1982
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Part 7 - Methods for searching places and vehicles
Section 6(c) Official Information Act 1982
The exterior
Fol ow these steps when searching the exterior.
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Section 6(c) Official Information Act 1982
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Section 6(c) Official Information Act 1982
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Searching open areas
Searching for items
Section 6(c) Official Information Act 1982
Searching water
Section 6(c) Official Information Act 1982
Searching for suspects
Section 6(c) Official Information Act 1982
Searching for missing persons
Conduct a
reconnaissance search in the area where the missing person might be found, including main tracks and routes,
peaks, ridges, val eys, rivers, camp sites and huts. Any evidence of the person's whereabouts wil indicate an "area of
probability" for a general search.
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Section 6(c) Official Information Act 1982
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Searching motor vehicles, ships and aircraft
Searching motor vehicles
This topic applies the same meaning of 'motor vehicles' as in sectio
n 2 of the Land Transport Act 1998, namely it means:
a vehicle drawn or propel ed by mechanical power; and
includes a trailer; but
does not include a:
vehicle running on rails; or
trailer (other than a trailer designed solely for the carriage of goods) that is designed and used exclusively as part of
the armament of the New Zealand Defence Force; or
trailer running on one wheel and designed exclusively as a speed measuring device or for testing the wear of
vehicle tyres; or
vehicle designed for amusement purposes and used exclusively within a place of recreation, amusement, or
entertainment to which the public does not have access with motor vehicles; or
pedestrian-control ed machine; or
vehicle that the LTA has declared under section
168A is not a motor vehicle; or
mobility device.
Search areas
Section 6(c) Official Information Act 1982
Searching procedures
Fol ow these steps to search a motor vehicle.
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Section 6(c) Official Information Act 1982
Searching ships
Section 6(c) Official Information Act 1982
Searching aircraft
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Section 6(c) Official Information Act 1982
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Part 8 - Searching people
Table of Contents
Table of Contents
2
Policy statement and principles
4
What
4
Why
4
How
4
Powers for searching people
5
When can people be searched?
5
Warrantless search powers
5
Searching items under a person's control
5
Warrantless searches of people in public places for evidential material
5
Warrantless searches of people in possession of arms
5
Approval for arms related searches
6
Warrantless searches of people in relation to drugs
6
People found in or on places or vehicles
6
Warrantless searches of people suspected of drug offences
6
Approval for drug related searches
6
Internal search of a person arrested for certain drug offences
6
Police and Customs powers relating to delivery of drugs
7
Warrantless searches of people for offensive weapons
7
Searches of arrested or detained people
8
Which power should be used for searching arrested or detained persons
8
Searching people who are, or are to be, locked up in Police custody
8
What does "locked up" mean?
8
Searching people after they are locked up
8
Timing of searches under section 11
8
Rub‐down searches of arrested or detained people
9
Warrantless searches for evidential material
9
Seizing samples as evidential material from a person's external body under section 88
9
Examples of when samples from a person's external body may be seized
10
Penile swabs
10
Searches must be lawful, reasonable and approved
10
Restrictions on the application of sections 85‐88
11
Rules and obligations when searching people
12
Other general powers associated with the power to search people
12
Complying with the New Zealand Bill of Rights Act 1990
13
Planning and assessing risk
14
Dignity and privacy versus safe police work
14
Search risk assessment
14
Mobility device / notebook records
14
Who can conduct and be present at searches?
15
Who can search people in Police custody?
15
Assistants during a search
15
Searchers
15
Selecting searchers
15
What type of searches are searchers permitted to conduct?
16
Gender identity of people conducting searches
16
Exceptions to same sex people conducting searches
16
Transgender people
16
Sexual orientation and gender identity of Police employees conducting searches
16
Rub‐down searches
18
What is a rub‐down search?
18
Rubdown search may include visual examination
18
Things that can be done to facilitate a rub‐down search
18
Rub‐down searches of arrested or detained persons
18
Searches after arrest or detention to be conducted as soon as practicable
18
Rub‐down search of all prisoners unless unjustified in circumstances
18
Using metal detectors
19
Prisoners taken into custody at court
19
Conducting a rub‐down search
19
Preparing for the search
19
Carrying out the search
20
Completing the search
21
Strip searches
22
What is a strip search?
22
When can strip searches be conducted?
22
All strip searches must be justified
22
Justification by necessity
22
Justification by risk assessment
22
Customary strip searching must not be authorised
23
Conducting a strip search
23
Preparing to conduct a strip search
23
Carrying out the search
23
Reporting strip searches of people who are in Police custody
24
Police guidelines about strip searching to be publicly available
25
Internal searches
26
What is an internal search?
26
What is not an internal search?
26
Who may conduct an internal search?
26
When can an internal search be required?
26
Restrictions on internal searching
26
Effect of not permitting internal search on bail application
26
Police employee presence at internal search
27
Reporting exercise of power to require internal search
27
Searching transgender and intersex people
28
Who are trans (transgender) and intersex people?
28
Who should search transgender and intersex people?
28
Establishing who should conduct a search when gender is unclear
28
Surprises during searches
29
Internal searches
30
Search positions and personal safety
31
Deciding on a search position
31
Standing position
31
Wall position
31
Kneeling position
31
Prone position
32
Keeping yourself safe during searches
32
Protecting your health
32
Property removed or seized during a search
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Part 8 - Searching people
Policy statement and principles
What
Searching people may be necessary to:
‑ locate and preserve evidence
‑ remove weapons or means of escape
‑ remove and care for a prisoner’s property
‑ locate and remove articles or substances that could impact on the safety of that prisoner or that of other prisoners, members of
the public or Police employees
‑ ensure the safety of a prisoner considered to be at risk of attempting suicide or self harm.
There are three main types of personal searches which have increasing levels of justification and requirements:
‑ rub‐down searches
‑ strip searches
‑ internal searches.
This chapter outlines Police powers under the Search and Surveillance Act 2012 to search people, and the statutory rules that apply. It
also details Police policies and procedures relating to searches of people including who can conduct and be present at searches;
planning searches and assessing risks; and for conducting searches of people.
The chapter applies to all Police searches of people, wherever they are conducted.
Why
Searches must be both lawful and reasonable.
Section
21 of the New Zealand Bill of Rights Act 1990 provides that ‘Everyone has the right to be secure against unreasonable search or
seizure, whether of the person, property, or correspondence or otherwise’. If the search complies with section
125 of the Search and
Surveillance Act 2012, it is likely to be reasonable under section 21 of the New Zealand Bill of Rights Act. However, there is still an
overriding requirement of reasonableness such that if the search is carried out in a manner unreasonable in the circumstances, it may
breach section 21 even if authorised by the provisions of the Search and Surveillance Act 2012.
How
Police will apply these general principles to all searches:
‑ The search must be lawful, i.e. you must be authorised by the Search and Surveillance Act 2012 or another enactment to conduct
a search, or conduct it with the person's informed consent.
‑ People being searched must be treated with such dignity, privacy, respect and sensitivity that the individual situation and the
safety of employees dealing with them will permit.
‑ Any force or restraint used on a person being searched must always be reasonable in the circumstances.
‑ Generally searches should be carried out by constables, authorised officers or searchers of the same gender identity as the
person being searched. Some exceptions apply when employees of the same gender identity as the person being searched are
not available.
‑ Where practicable, any search and/or removal of property from the person being searched must be witnessed by another Police
employee.
‑ All property removed or seized from a person searched must be appropriately documented and accounted for.
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Part 8 - Searching people
Powers for searching people
When can people be searched?
Police can search people when they are authorised by legislation to do so.
You must search a person lawfully by always:
‑ exercising a warrantless power, or
‑ executing a warrant power, or
‑ conducting a search with the person's consent.
Note: When a statutory power exists to search a person, you should use that power rather than relying on a consensual search, as
consent may be withdrawn by the person at any time. (See the
'Consent Searches' Police Manual chapter).
When making a decision to search, you must consider your tactical options and work within the principles of
TENR (Threat, Exposure,
Necessity, Response).
Warrantless search powers
The statutory powers to search people are contained in the
Search and Surveillance Act 2012. They include warrantless powers to
search a person:
‑ in custody and who is or is about to be
locked up (s
11)
‑ found in a public place for
evidential material (s
16)
‑ for
arms (s
18)
‑ in relation to
drug offences (ss
21,
22 &
23)
‑ for
offensive weapons (s
27)
‑ after
arrest or detention (ss
85 &
88).
Searching items under a person's control
Searching people can include searching anything:
‑ they are wearing or carrying, or
‑ that is in their physical possession or immediate control ‐ this could include a place, vehicle, wig, prosthetic limb, or false teeth.
Under section
86 of the Search & Surveillance Act 2012, a prosthetic limb may be considered as “an item carried by the person” and
may be removed for the purpose of the search. Section
125 of the Act broadly lays out the legal procedure about searching a person. A
prosthetic limb may be considered as something the person is wearing under section 125(1)(i). Particular care should be taken when
removing a prosthetic device (125(3)). If a person is wearing a prosthetic limb that needs to be searched, they may require assistance
from a medical practitioner or a personal attendant (s125(1)(g).
Warrantless searches of people in public places for evidential material
You may search a person in a public place without a warrant if you have reasonable grounds to
believe that they are in possession of
evidential material relating to an offence punishable by 14 years imprisonment or more.
(s
16)
Warrantless searches of people in possession of arms
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Part 8 - Searching people
If you have reasonable grounds to...
you may...
suspect a person is carrying
arms, or is in
do
any or all of the following without a warrant:
possession of them, or has them under their control,
and:
‑ search the person
‑ search any thing in their possession or under their control (including a
‑ the person is in breach of the
Arms Act 1983,
vehicle)
or
‑ enter a place or vehicle to carry out one of the above
‑ the person, by reason of their physical or
‑ seize and detain:
mental condition:
‑ any arms found
‑ is incapable of having proper control
of the arms,
or
‑ any licence under the Arms Act 1983 that is found.
‑ may kill or cause bodily injury to any
Note: Arms are "in a person's possession or under their control" if they have
person,
or
access to them. They do not need to be in the person's immediate possession.
‑ that, under the
Domestic Violence Act 1995:
‑ a protection order or Police safety
order is in force against that person,
or
‑ there are grounds to apply for a
protection order against them
(s
18(1)&(2))
Approval for arms related searches
Unless impracticable in the circumstances, obtain approval from a sergeant or above before exercising any of the warrantless powers
outlined above in relation to arms.
Warrantless searches of people in relation to drugs
People found in or on places or vehicles
If you are conducting a search of a place or vehicle under section 20 (relates to some Misuse of Drugs offences ‐see the Warrantless
powers to search places, vehicles and things chapter) you may, without a warrant, search any person found in or on the place or
vehicle.
(s
21)
Warrantless searches of people suspected of drug offences
You may search a person without a warrant if you have reasonable grounds to:
‑
believe a person is in possession of:
‑ a controlled drug specified or described in
Schedule 1,
Part 1 of Schedule 2, or
Part 1 of Schedule 3 of the Misuse of Drugs
Act 1975, or
‑ a precursor substance specified or described in
Part 3 of Schedule 4,
and
‑
suspect that an offence against the Misuse of Drugs Act 1975 has been, is being, or is about to be committed in respect of that
controlled drug or precursor substance.
(s
22)
Approval for drug related searches
Unless impracticable in the circumstances, obtain approval from a sergeant or above before exercising this warrantless search power.
Internal search of a person arrested for certain drug offences
If a person is under arrest for an offence against section
6 or
7 or
11 of the Misuse of Drugs Act 1975 and:
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Part 8 - Searching people
you have reasonable grounds to...
you may...
believe that they have secreted within their body any property:require the person to permit a medical practitioner nominated by you,
to conduct an internal examination of any part of the person's body by
‑ that may be evidence of the offence with which they
are charged, or
means of:
‑ the possession of which by the person constitutes any
‑ an X‐ray machine or other similar device, or
other offence against section
6 or
7 or
11 of the Misuse
‑ a manual or visual examination (whether or not facilitated by
of Drugs Act 1975
any instrument or device) through any body orifice.
(s
23)
See "Internal searches" in this chapter for more information about:
‑ the
restrictions on a medical practitioner conducting an internal search
‑ the
effect of not permitting an internal search on a bail application.
Police and Customs powers relating to delivery of drugs
See Warrantless powers associated with drugs in Part 3 ‐
Warrantless powers to search places, vehicles and things for your power to
search a person involved in a delivery under section 12 of the Misuse of Drugs Amendment Act 1978.
Warrantless searches of people for offensive weapons
You may search a person without a warrant if you have reasonable grounds to
suspect the person is committing an offence against
section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances).
(s
27)
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Part 8 - Searching people
Searches of arrested or detained people
Which power should be used for searching arrested or detained persons
There are two alternative search powers that might be appropriately exercised immediately upon arrest or when detained under a
statutory power of detention. These are:
‑ a rubdown search, under sections
85‐87, and
‑ a warrantless search under section
88.
A search may be carried out under one of these provisions before the search conducted under section
11 when
people are locked up.
Any search undertaken pursuant to section
11(1) & (2), should only be completed by custodial or watchhouse staff before the person is
placed into a cell, unless the circumstances are such that an urgent search under section 11 is required. The primary purpose of the
section 11 search is not to look for or seize evidential material but to protect the detained person’s property and remove items that
might be used to harm themselves or others.
Searching people who are, or are to be, locked up in Police custody
You may search a person who has been taken into lawful custody and is:
‑ at a Police station, or
‑ in other premises, or in, or about to be placed in a vehicle being used for Police purposes,
and
‑
is, or is to be, locked up (pending a decision on bail or for any other reason).
You may take any money or other property found during the search.
(s
11(4))
This power may be exercised
before the person is locked up.
(s
11(2))
What does "locked up" mean?
"Locked up" means a person taken into lawful custody and being placed behind a closed or locked door that prevents them from
leaving. Examples are a cell or charge room at a Police station or a vehicle used for Police purposes (other than being placed in a Police
vehicle only for the immediate purposes of transport).
Searching people after they are locked up
After a person has been locked up they can
only be searched if:
‑ they were not searched before being locked up, or
‑ since being searched before being locked up, they have been in, or are reasonably suspected of having been in, close proximity
to:
‑ a person who was not locked up in Police custody (other than an enforcement officer or a searcher), or
‑ another person who was eligible to be searched after being locked up but was not, or
there are reasonable grounds to believe the person is in possession of anything that may be used to harm themselves or others.
(s
11(3))
Timing of searches under section 11
Apart from an immediate
rub‐down search of an arrested or detained person under section
85, or a warrantless search under section
88, avoid searching people under section 11 immediately after their arrest. If you do so, a further search under section
11 cannot be
conducted after the person arrives at the police station unless one of the situations in section 11(3) exists (see above).
If it is necessary to search a person in transit to remove valuable items to prevent the property from being stolen or to prevent an
assault, then you should remove all property from the person.
Subsequent searches when prisoners are moved to another station
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If a prisoner undergoes a section
11 custodial search and is locked up, a further section 11 search can only be conducted if the
exceptions in section 11(3) apply.
If a prisoner has undergone a section 11 custodial search at one station and is later transported to another station (having previously
been "locked up"), a further section 11 search can only be conducted if the exceptions in section 11(3) apply. If you are certain that
another search is required, you should undertake that search under sections 85 or 88 (e.g. to ensure the prisoner is not carrying
anything that may be used harm any person, or facilitate their escape). The rationale for using the section 85 or 88 search power is the
power of detention that is being exercised at the destination station.
If not practicable to conduct the search under section 85 or 88 you may consider a second search under s11 on the grounds that while
the prisoner was in transit they are no longer considered to be "locked up" until they reach the next place of detention where they are
to be again "locked up". However, be aware that this rationale has not been tested in court and there is therefore a risk of the search
being found to be unlawful.
Any search must be reasonable in the circumstances.
Rub‐down searches of arrested or detained people
You may carry out a
rub‐down search of a person who is arrested or detained under any enactment, to ensure the person is not
carrying anything that may be used to:
‑ harm any person (including themselves),
or
‑ facilitate the person's escape.
(s
85)
This power may be used on every person who is arrested or detained.
Warrantless searches for evidential material
If you have arrested, or detained a person under a statutory power of detention you may search the person if you have reasonable
grounds to
believe that there is any thing on or carried by the person that:
‑ may be used to harm any person (including themselves), or
‑ may be used to facilitate the person's escape, or
‑ is evidential material relating to the offence for which the arrest was made or the person detained.
(s
88)
Note: The grounds authorising a search under this section will not apply to every person who is arrested or detained
. Rub‐down or
strip searches may be used under section 88 depending on the circumstances.
Seizing samples as evidential material from a person's external body under section 88
The definition of evidential material is broad and under section
3, means evidence of the offence, or any other item, tangible or
intangible, of relevance to the investigation of the offence.
Only where there are reasonable grounds to believe that evidential material is on a person's body does section 88(2)(c) authorise a
search and seizure of evidence from the external body of an arrested or detained person. The scope of the power to seize samples is
uncertain as the reasonableness of a specific search depends on the circumstances of the search assessed against an individual's
reasonable expectation of privacy from State intrusion in a law enforcement context protected by section
21 of the New Zealand Bill of
Rights Act 1990 (unreasonable search and seizure).
The more intrusive the search, the higher standard of justification that police will be required to meet. For example, a penile swab may
link the arrested person to the victim by DNA. However, where the person does not consent, the use of force could render the search
and seizure unreasonable, not because of the unreasonable manner in which it was carried out but because it occurred at all. This has
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yet to be tested in court.
The power to seize a sample as evidential material from the external body of the person under sectio
n 88 is independent of the powers
to take samples under the Criminal Investigations (Bodily Samples) Act 1995. Nevertheless, evidence should not be seized under
section 88 for the purpose of obtaining a suspect's DNA profile. See these chapters in the Police Manual:
‑
DNA Sampling for information about DNA sampling powers
‑
DNA at crime scenes for information about sources, preservation, recovery, packaging and storage of specimens.
Examples of when samples from a person's external body may be seized
Examples where samples may be seized from the external body of an arrested or detained person as evidential material include:
‑ a swab to remove blood from the victim of an assault on the arrested person's neck
‑ fingernail scrapings from the fingers of an arrested rape suspect that may link the offender to the victim by DNA
‑ a swab of an arrested person's skin for gunshot residue
‑ penile swabs as detailed below.
The Court of Appeal in M v R [2019] NZCA 203 found that there is no power under the SSA to authorise the seizure of bodily specimens
where a person is neither detained nor arrested and does not provide informed consent. The taking of the accused’s finger nail
clippings in this case was therefore not lawful.
Penile swabs
A swab of the arrested person's external genitalia may link that person to the victim by DNA or other biological material (e.g. blood,
saliva, hair or foreign material). The penile swab:
‑ must be taken within 24 hours of the alleged offence
‑ must be taken by a medical practitioner or nurse
‑ should be undertaken with the informed consent of the arrested person.
If consent is not given, then the justification for using force to obtain a penile swab would have to be of a high standard. The taking of
the penile swab must be conducted in a reasonable manner in the circumstances affording the degree of privacy and dignity consistent
with achieving the purpose of the search.
The power of Police to require a respondent to give a penile swab where the person does not consent is yet to be tested in the New
Zealand courts. The Canadian Supreme Court dealt with this issue in R v Saeed [2016] 1 SCR 518. The accused here was subject to the
search pursuant to arrest for sexual assault and was permitted to conduct the penile swab himself.
The majority of the Court found that a penile swab was less invasive than taking a bodily sample, as it was intended to seize the DNA of
the complainant, not the accused. It was therefore held that police in Canada have the power to compel suspects to give a penile swab,
provided that certain procedural safeguards are adhered to. Included in these procedural safeguards was giving the accused the option
to conduct the swab themselves.
Seek guidance from a Police legal adviser where necessary to appropriately assess the circumstances in any individual case.
Searches must be lawful, reasonable and approved
Searches under section
88 for the purpose of seizing samples as evidential material from the external body of an arrested or detained
person must be lawful, reasonable and
approved by a constable who is of or above the level position of sergeant.
Note: The Court of Appeal, in R v Williams [2007] 3 NZLR 207, (2007) 23 CRNZ 1 (CA), confirmed that the concepts of lawfulness and
unreasonableness were distinct. Searches that are lawful may nevertheless be unreasonable taking into account the manner, time and
place of the search.
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Restrictions on the application of sections 85‐88
Powers to search a person under sections 85‐88 may be used by any person who has exercised a power of arrest or detention, or both,
under any enactment except:
‑ Armed Forces Discipline Act 1971, or
‑ Defence Act 1990, or
‑ any regulations made under either of those Acts.
(s82)
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Rules and obligations when searching people
When exercising a power to search a person you
must:
‑ identify yourself
‑ state the name of the Act under which the search is taking place and the reasons for it unless it is impracticable to do so in the
circumstances
‑ produce evidence of your identity if you are not in Police uniform
‑ promptly provide the person with a copy of an inventory of any items seized during the search.
(s
125(1)&(4))
Other general powers associated with the power to search people
When exercising a power to search a person, you
may:
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detain
the person for as long as necessary to enable the search to be carried out
use
for the purposes of the search
reasonable
force
(You should first arrest for obstruction and then use force to complete the search)
use any
to facilitate the search (while conducting it), if it is used in a way that:
equipment or
aids, e.g.
‑ involves no or minimal contact, and
torch
‑ is reasonable in the circumstances
ask for
‑ a medical practitioner or nurse, and /or
assistance
‑ a parent, guardian, or other person responsible for the day‐to‐day care of the person to be searched
from
if you think it is in the interests of the person to be searched.
(See procedures for conducting
rub‐down and
strip searches in this chapter for more information)
ask for
another officer (from any law enforcement agency) who is also authorised to conduct a strip search and is of the same
assistance
gender identity as the person being searched, if you are undertaking a strip search.
from
search
any item:
‑ the person is wearing or carrying, or
‑ is in their physical possession or immediate control
seize
anything carried by the person or in their immediate possession or control
if:
‑ it is the subject of your search, or
‑ may otherwise lawfully be seized.
copy
all or part of a document carried by the person being searched or in their physical possession or immediate control if
that document is the subject of your search or may otherwise be lawfully seized
access using a computer system or other data storage device carried by the person being searched or that is in their physical
reasonable
possession or immediate control, if any intangible material that is the subject of your search may be in that computer
measures
system or other device.
copy
accessed as above that is the subject of your search or may otherwise be lawfully seized, (including by means of
intangible
previewing, cloning, or other forensic methods before or after removal for examination).
material
take
or make sound or video recordings, or drawings of any thing being carried or in the physical possession or immediate
photographs control of the person being searched
if you have reasonable grounds to
believe that the photographs or sound or video
recordings or drawings may be relevant to the purposes of the search
(s
125(1))
Complying with the New Zealand Bill of Rights Act 1990
Searches must be reasonable under section
21 of the New Zealand Bill of Rights Act 1990. If the search complies with section
125 of the
Search and Surveillance Act 2012, it is likely to be reasonable under section 21 of the New Zealand Bill of Rights Act. However, there is
still an overriding requirement of reasonableness such that if the search is carried out in a manner unreasonable in the circumstances,
it may breach section 21 even if authorised by the provisions of the Search and Surveillance Act 2012.
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Planning and assessing risk
Dignity and privacy versus safe police work
People being searched must be treated with such dignity, privacy, respect and sensitivity that the individual situation and the safety of
employees dealing with them will permit.
There will be situations when it is necessary to search a person immediately they are apprehended and/or detained, which may be in
public view. Many people will be uncomfortable with this, but your primary consideration must be the safety of Police employees and
the need to preserve evidence.
Use your search powers in a manner appropriate to the place and circumstances. Remember that the search may be contested in court
and the court will apply the "unreasonableness" test in terms of the New Zealand Bill of Rights Act 1990.
Search risk assessment
Always conduct a search risk assessment, taking into account the factors below, before searching a person. In most cases (unless the
search is authorised by search warrant) this will be a quick mental assessment. Apply TENR as part of your planning (for more
information, see the
TENR ‐ Operational Threat Assessment chapter).
Factors
When Timing of search. Can the search safely wait until the person is taken to another safe and private place (e.g. private premises out
of view of public, Police station)?
Consider:
‑ risk of weapons and firearms that may be carried and used
‑ risk of violence
‑ the person's demeanour (e.g. are they affected by drugs and/or alcohol, poor mental health)
‑ securing of evidential material
WhereLocation and environmental factors:
‑ lighting available to conduct the search
‑ hazards that may exist at location (e.g. dangerous chemicals present at a clan lab)
‑ presence of accomplices, gang members, intoxicated people, protesters or other potentially aggressive people who
may interfere with the search
How Type of search:
‑
Rub‐down search
‑
Strip search
‑
Internal search
Who Consider:
‑ appropriate gender for searchers and number of employees of that gender available to conduct search ‐ for example,
are there special considerations required as a consequence of transgender status of the person to be searched or of
Police employee searchers?
‑ whether reasonable force may be required and the impact that may have on the location of the search.
See also 'Risk assessment when planning searches', in Part 5:
Carrying out search powers with or without a warrant.
Mobility device / notebook records
Your mobility device/notebook records on the exercise of warrantless powers should, except for custody searches, include your
reasons for searching people.
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Who can conduct and be present at searches?
Who can search people in Police custody?
People in Police custody can only be searched by:
‑ Police employees:
‑ holding the office of constable
‑ authorised by warrant under section
24 Policing Act 2008 (authorised officers) to perform one of the policing roles set out
in Schedule 1 giving them the powers of a constable to search a person (i.e. Police jailers, escorts, guards or specialist crime
investigators)
‑
searchers requested by the Police employee in charge of the place or vehicle where the person is detained, to search a specific
person.
Assistants during a search
If it is in the interests of the person to be searched, these people may provide assistance during a search:
‑ medical practitioner or nurse, and / or
‑ parent, guardian, or other person responsible for the day‐to‐day care of the person to be searched
If the search is a strip search, you may also request the assistance of another officer (from any law enforcement agency) who is:
‑ authorised under any other enactment to conduct strip searches, and
‑ of the same gender identity as the person to be searched.
(s
125(1)(g)&(h))
Searchers
You may use a searcher to conduct a search of a person who is to be locked in Police custody:
if...
and you...
‑ the searcher is someone of the same gender identity as the are satisfied the searcher has received
appropriate training
person to be searched, or
before being used to conduct a search.
‑ the search must be carried out within a reasonable time of
the person being taken into custody
The searcher
must carry out the search as if they were a Police employee.
(s
12)
Note: Searchers can only be used to conduct a search under section 11 (when a person is, or is about to be, locked up). Searchers
cannot conduct searches for evidential material.
Selecting searchers
Examples of suitable searchers include respected citizens in the community, medical practitioners, nurses, existing community based
volunteers who assist Police with search and rescue, victim support etc.
Searchers must be people who:
‑ are mature, confident, reliable and trustworthy
‑ will maintain confidentiality
‑ have no conflict of interest with the person to be searched
‑ have no criminal convictions / adverse or suspect intelligence recorded.
The need to use searchers who are not Police employees is more likely to occur at smaller Police stations servicing remote rural areas.
Stations should consider maintaining a short list of trained searchers of both gender identities rather than relying on one person of
each gender identity.
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What type of searches are searchers permitted to conduct?
Searchers may only carry out rub‐down and strip searches.
Gender identity of people conducting searches
In general, searches should be carried out by constables, authorised officers or searchers of the same gender identity as the person to
be searched and any person not of the same gender identity should not be present during a search. (Note that gender identity is not
about sexual orientation but the gender (male or female) that a person being searched, or the searcher, identifies with).
Exceptions to same sex people conducting searches
Type of Exceptions
search
Rub‐
If a constable, authorised officer or searcher of the same gender identity is not available within a reasonable time and there is
down no practicable alternative, a constable, authorised officer or searcher of the opposite gender identity may conduct or assist in
search the search.
A medical practitioner, nurse, parent or guardian who provides assistance during a search under section
125(1)(g) does not
have to be of the same gender identity as the person being searched.
Strip
A strip search may
only be carried out by a person of the same gender identity as the person to be searched, and no strip
search search may be carried out in view of any person who is not of the same gender identity as the person to be searched.
(s
126(4))
In extreme and urgent situations where sufficient same gender identity constables, authorised officers or searchers are not
available, a constable, authorised officer or searcher not of the same gender identity may be out of view of the person
searched, but within immediate call of the person searching. The out of view person can respond and protect the person
conducting the search if the person being searched becomes violent.
Internal If a person voluntarily consents to an internal search by a medical practitioner, but not in the presence of a constable,
search authorised officer or searcher of the same gender identity as them:
then ...
if...
a constable, authorised officer or searcher of the same gender identity
‑ the medical practitioner does not feel safe
may be out of view, but within immediate call (e.g. behind a screen) to:
to be left alone with the person to be
searched, or
‑ protect the medical practitioner from violence, and
‑ there is an assessed risk that the person to
‑ restrain the person if they become violent
be searched may become violent.
In cases where you are required to search a transgender person of the same gender identity and are concerned about conducting the
search, bring the matter to the attention of your supervisor.
Transgender people
See the
Searching transgender and intersex people section in this chapter for information on determining the appropriate gender for
the person conducting the search.
Sexual orientation and gender identity of Police employees conducting searches
A Police employee's sexual orientation has no bearing on their suitability or otherwise to conduct a search of any person. Only
their gender identity (male or female) must be considered in determining suitability.
It should be remembered that in all cases of intrusive searching we take a detainee centric approach in respect of rights. Should an
objection be made to the search in respect of the use of a transgender Police employee, then the senior officer present should consider
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the continued appropriateness of using the transgender employee to conduct the search.
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Rub‐down searches
What is a rub‐down search?
A rub‐down search is a search of a clothed person in which you may:
‑ run or pat your hand over the body of the person being searched, whether outside or inside their clothing (other than the
underclothing)
‑ insert your hand inside any pocket or pouch in their clothing (other than the underclothing)
‑ for the purpose of permitting a visual inspection, require the person being searched to:
‑ open their mouth
‑ display the palms of their hands or the soles of their feet
‑ lift or rub their hair.
(s
85(2))
Rubdown search may include visual examination
A rubdown search may include a visual examination (whether or not facilitated by any instrument or device designed to illuminate or
magnify) of the mouth, nose, and ears, but must not include the insertion of any instrument, device, or thing into any of those orifices.
(s
87)
Things that can be done to facilitate a rub‐down search
To facilitate a rub‐down search you may require the person being searched to:
‑ remove, raise, lower, or open any outer clothing (including, without limitation, any coat, jacket, jumper, or cardigan) being worn
by them, except when they have no other clothing, or only underclothing, under that outer clothing, and
‑ remove any head covering, gloves, or footwear (including socks or stockings) being worn.
You may also search:
‑ any item carried by or in their possession, and
‑ any outer clothing removed, raised, lowered, or opened for the purposes of the search, and
‑ any head covering, gloves, or footwear (including socks or stockings) removed for the purposes of the search.
(s
86)
Rub‐down searches of arrested or detained persons
You may carry out a rub‐down search when a person is arrested or detained under a statutory power of detention, to ensure that they
are not carrying anything that may be used to:
‑ harm any person, or
‑ facilitate the person's escape.
(s
85(1))
Searches after arrest or detention to be conducted as soon as practicable
Conduct a rub‐down search for weapons or easily disposed of items as soon as practicable after a person's arrest or detention and
before placing them in a vehicle or secure area. If possible, do this out of the public's view to give the person privacy and avoid
interference from sympathisers and adverse public reaction.
If it is not practicable to complete a full rub‐down search immediately after arrest or detention:
‑ conduct a visual examination of their head, torso, arms and legs as a preliminary check for weapons and evidential material, and
‑ remain with them and closely observe them to prevent them from:
‑ using anything they may be carrying or have concealed to harm any person or facilitate their escape
‑ hiding or disposing of any evidence.
If the suspect is transported in a vehicle, check the seat and surrounding area (e.g. floor, door etc) of that vehicle afterwards.
Rub‐down search of all prisoners unless unjustified in circumstances
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All prisoners must undergo a rub‐down search as soon as they arrive at the custody area or station unless:
‑ it would be unjustifiable to search the person because, for example:
‑ it is a minor charge
‑ all evidence is located
‑ the prisoner is:
‑ not placed into a cell or left unsupervised and is being immediately bailed, or
‑ not at risk of harming any person or escaping before they are bailed, or
‑ there is justification in the circumstances to conduct a
strip search instead.
Using metal detectors
If available, all searches must include the use of metal detectors immediately upon arrival in the cell block, regardless of where the
detainee has come from.
Prisoners taken into custody at court
Follow these steps when people are taken into custody at court.
If the person is…
then…
waiting for a bail bond to be
‑ keep them separate from prisoners in custody being transferred to a custodial or health facility
completed
‑ carry out a risk assessment to decide whether they need to be searched (rub‐down search) to
remove weapons, cigarettes, lighters or other material that may cause damage to a cell or injury
to another person.
Note: If the person is unable to be kept separate from custodial prisoners, they must be rub‐down
searched as if they were a custodial prisoner.
remanded into custody for
‑ rub‐down search them before placing them into a cell (if possible, the search should be
transfer to a custodial or
witnessed by another constable, authorised officer or searcher), unless there is justification for a
health facility
strip search instead
‑ record any articles removed (use POL48 or your notebook)
‑ complete subsequent processing and documentation after the prisoner is returned to the
Police station.
Conducting a rub‐down search
Preparing for the search
Follow these steps to prepare for the rub‐down search and to satisfy the requirements of section
125(1)).
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StepAction
1
Identify yourself to the person being searched.
2
Advise the person of the name of the Act under which the search is taking place and the reason for it unless it is impracticable to
do so in the circumstances.
You may detain the person to enable the search to be carried out (at the place of initial detention or while they are travelling to or
at any other place where the search is carried out), but only for as long as necessary to conduct the search.
3
Obtain the assistance of:
‑ a medical practitioner or nurse
‑ a parent, guardian or other person for the time being responsible for the day‐to‐day care of the person to be searched
if you consider that is in the interests of the person being searched.
4
If practicable, conduct the rub‐down search and removal of any property:
‑ in the presence of another constable, authorised officer, searcher
‑ in view of any surveillance cameras or video monitoring systems.
Carrying out the search
Follow these steps to conduct the rub‐down search. (See also
Searching trans (transgender) and intersex people when applicable).
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Section 6(c) Official Information Act 1982
Completing the search
On completion of the search follow these steps.
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StepAction
1
Label and secure any property seized. Issue a Property Record Sheet (POL 268). If the person is placed in custody, follow the
procedures for receiving prisoners' property in the '
People in Police detention' Police Manual chapter.
If any property is seized as an exhibit:
‑
label and secure the exhibit and record it on a POL 268
‑
process it appropriately, e.g. by photography, fingerprinting, or scientific examination by ESR, a document examiner etc.
2
Consider whether you are required to report the rub‐down search to the Commissioner. This is
not required if the search is in
conjunction with the person's arrest, detention or being locked up in lawful Police custody. (See 'Notifying when people are
searched' in Part 14:
Reporting for more information about when reports to the Commissioner are required by section
169).
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Strip searches
What is a strip search?
'Strip search' means a search where the person conducting the search may require the person being searched to undress, or to remove,
raise, lower, or open any item(s) of clothing so that the genitals, buttocks, or (in the case of a female) breasts are:
‑ uncovered, or
‑ covered only by underclothing.
(s3)
When can strip searches be conducted?
A strip search may be carried out when there is a search power under the Search and Surveillance Act 2012 authorising a search for:
‑ arms
‑ offensive weapons
‑ drugs
‑ evidential material relating to offences punishable by imprisonment of 14 years or more
‑ evidential material in the course of an authorised search of a place or vehicle, when any person:
‑ is found at the place or in or on the vehicle, or
‑ who arrives at the place, or
‑ stops at, or enters, or tries to enter or get onto the vehicle
‑ thing(s) incidental to arrest or detention that may be used to harm any person, facilitate the person's escape or that is evidential
material relating to the offence in respect of which the arrest is made or the person is detained
‑ money or other property after a person is locked up.
All strip searches must be justified
The safety of the person to be searched and those conducting the search is of paramount importance. Strip searches must be justified
by either necessity or risk assessment.
Justification by necessity
Strip searches may be justified by necessity when you have reasonable grounds to believe:
‑ evidential material may be concealed on the person, or
‑ any thing is on the person who is arrested or detained that may be used to:
‑ harm any person
‑ facilitate the person's escape
and a less intrusive search may not be sufficient to locate the evidential material or thing that may be used to harm any person or
facilitate escape.
Justification by risk assessment
Strip searches may also be justified by an assessment of risk using principles of TENR (Threat, Exposure, Necessity and Response). This
includes the risk assessment required for everyone locked up in Police custody that is used to identify risks such as suicidal tendencies,
so that the care and safety of the person in custody can be appropriately managed.
A strip search may be carried out when a risk assessment gives you reasonable grounds to believe:
‑ things such as weapons may be concealed on the person, or
‑ any thing is on the person that may be used to:
‑ facilitate their escape, or
‑ harm any person
and a less intrusive search may not sufficiently reduce or remove that risk.
A strip search may also be undertaken following a formal risk assessment of someone to be locked up in police custody where their
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behaviour or previous incidents indicate that there is a risk of:
‑ harm to any person, or
‑ intentional damage to property
In this instance there need not be a reasonable belief that any item that may be used to injure themselves or others is on them. A strip
search may be undertaken.
Customary strip searching must not be authorised
Each case must be considered on its own merits. No general policy to strip search a certain person or class of person can be authorised
or adopted and there must be good reason(s) for such a search.
Conducting a strip search
You must carry out a strip search with decency and sensitivity and in a manner that affords to the person being searched the degree of
privacy and dignity that is consistent with achieving the purpose of the search.
Preparing to conduct a strip search
After deciding a strip search is justified, follow these steps to prepare for the search and comply with section
125.
StepAction
1
Obtain authority to conduct a strip search from a supervisor with the position level of sergeant or above. If a supervisor is not
available, contact your Communications Centre to obtain authority from a supervisor with the appropriate position level.
2
Plan who should be present during and conduct the search. It should be conducted if possible, in the presence of another
constable, authorised officer or searcher. You can also use an enforcement officer from another agency authorised under an
enactment to conduct strip searches (e.g. a prison or customs officer).
3
Note:
‑ The person conducting the search
must be of the same gender identity as the person being searched.
‑ Avoid having more than two people present at the search (though this may be unavoidable if the person being searched is
violently resisting ‐ see step 1 in the table "
Carrying out the search" below).
In extreme and urgent situations where sufficient same gender identity constables, authorised officers or searchers are not
available, a constable, authorised officer or searcher not of the same gender identity may be out of view of the person searched,
but within immediate call of the person searching. The out of view person can respond and protect the person conducting the
search if the person being searched becomes violent.
4
Identify yourself and the witness to the person to be searched. Advise them of the name of the Act under which the search is
taking place and the reason for it, unless it is impracticable to do so in the circumstances.
5
If you consider that it is in the interests of the person being searched, you may obtain the assistance of:
‑ a medical practitioner or nurse and/or
‑ a parent, guardian or other person for the time being responsible for the day‐to‐day care of the person to be searched.
You may also seek assistance from an officer from another law enforcement agency who is authorised to conduct searches.
6
Ensure the search place is out of view of:
‑ the public and Police employees (other than those involved in the search)
‑ any surveillance cameras or video monitoring systems.
Carrying out the search
Continue with these steps to conduct the strip search.
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StepAction
1
You may use reasonable force when necessary to conduct the search or take any money or property found on the person or in
their possession.
Do not attempt a strip search with only one person of the appropriate gender identity if the person to be searched is likely to
resist or be violent. Keep the person under observation until others of the same gender identity authorised to search are available
to assist. In extreme and urgent situations a second person not of the same gender identity may be out of view of the person
searched, but within immediate call of the person searching. The out of view person can respond and protect the person
conducting the search if the person being searched becomes violent.
2
If you intend to use any equipment or aid to facilitate the search, use it in a way that:
‑ involves no or minimal contact, and
‑ is reasonable in the circumstances
e.g. metal detectors.
3
Conduct the search in as seemly a manner as is consistent with the necessity of discovering any concealed item. The extent of the
search required, especially regarding the exposure of private parts, is a matter of careful judgement.
4
In most cases, where it is necessary to conduct a search which exposes the bare skin of breasts, genitals or buttocks, the search
should be carried out in sections. The upper part of the body should be stripped and re‐clothed before the lower part of the body
is examined or vice versa as appropriate.
A person should only be required to strip completely naked in exceptional circumstances.
5
Use the wall position to search the person thoroughly but
do not:
‑ deliberately touch the bare skin of breasts, genitals or buttocks
‑ require them to bend over, lie down or adopt any other position for a visual examination of lower body orifices. The
person may be required to squat so that any object clenched or hidden between the buttocks is released.
6
Search anything carried, worn or in the person's immediate possession.
7
If circumstances arise requiring a person of the opposite gender identity who is present but not in view of the search to intervene
to protect the person conducting the search, you must:
‑ stop the search, and
‑ before resuming, keep the person under observation until other authorised persons of the same gender identity are
available to assist with the search using reasonable force.
8
If the person is placed in custody, follow the procedures for receiving prisoners' property in the
'People in Police custody' Police
Manual chapter.
If any property is seized as an exhibit:
‑ label and secure the exhibit and record it on a POL 268
‑ process it appropriately, e.g. by photography, fingerprinting, or scientific examination by ESR, a document examiner etc.
Reporting strip searches of people who are in Police custody
If you exercise a warrantless search power involving a strip search of a person, you must report it unless the search was conducted
under section 11.
(s
169)
See the
'Reporting' chapter for more guidance on when strip searches must be reported, and how.
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Police guidelines about strip searching to be publicly available
The guidelines in this chapter concerning the circumstances under which a strip search may be conducted must be made publicly
available on the Police website.
A search of the person is not unlawful by reason only of failure by the person conducting the search to comply with a guideline issued
by the Commissioner.
(s
126)
Note:
Any changes made to this strip searching topic
must be immediately notified to Media & Communications by the
Police
Instructions Team and
Director: Capability to ensure the guidelines published on the Police website are up to date.
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Internal searches
What is an internal search?
An internal search is an internal examination of any part of the person’s body by means of:
‑ an X‐ray machine or other similar device, or
‑ a manual or visual examination (whether or not facilitated by any instrument or device) through any body orifice.
(s
23)
What is not an internal search?
A constable, authorised officer or searcher may conduct a visual examination (whether or not facilitated by any instrument or device
designed to illuminate or magnify) of the mouth, nose, and ears, but must
not insert any instrument, device, or thing into any of those
orifices.
A visual examination in these circumstances is not an "internal search" and is permitted as part of a
rub‐down search.
(s
87)
Who may conduct an internal search?
An internal search must be conducted by a registered medical practitioner.
When can an internal search be required?
A constable can only require a person to permit a medical practitioner to conduct an internal examination in circumstances listed in
section
23 of the Act. They relate to people under arrest for some offences against the
Misuse of Drugs ct 1975 and when the constable
has reasonable grounds to believe the person has certain property secreted within their body.
Section
23 does not limit or affect sections
13A to 13M of the Misuse of Drugs Amendment Act 1978. (See the
'Drugs' Police Manual
chapter for information about your powers under these sections).
Restrictions on internal searching
A medical practitioner must not conduct an internal examination if they:
‑ consider that to do so may be prejudicial to the person’s health, or
‑ are satisfied that the person is not prepared to permit an internal examination to be conducted. The person being searched
must
voluntarily consent to an internal examination.
(s
23(3))
The examination must be immediately discontinued if the person being searched changes their mind and withdraws their consent or
becomes violent.
Effect of not permitting internal search on bail application
If…
a court may...
‑ a person fails to permit an internal examination to be
‑ decline to consider the person's bail application, and
conducted, and
‑ order that the person continue to be detained in Police
‑ the court is satisfied the requirement to permit an internal
custody, until the earlier of the following occurs:
examination by a medical practitioner was properly made on
‑ the expiry of 2 days after the day on which they were
reasonable grounds
required to permit an internal examination by a medical
practitioner
‑ they permit the examination to be conducted.
(s
24)
Note: The effect of a person not permitting an internal search:
‑ does not limit a court's discretion to refuse bail
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‑ overrides any contrary provisions about bail in:
‑ the
Bail Act 2000
‑ the
Misuse of Drugs Act 1975
‑ the
Summary Proceedings Act 1957.
(s
24(3) & (4))
Police employee presence at internal search
A constable or authorised officer of the same gender identity as the person to be internally examined may be present if both the
medical practitioner and the person agree. Police employees not of the same gender identity, must
not be present during the search.
Reporting exercise of power to require internal search
The exercise of a warrantless power requiring a person to permit a medical practitioner to conduct an internal search must be
reported. See the '
Reporting' chapter for guidance about how to report the exercise of the power to require internal search.
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Searching transgender and intersex people
Who are trans (transgender) and intersex people?
A
trans person is someone whose gender identity (their sense of being male or female) differs from their physical body at birth. Many,
but not all, trans people take hormones or have surgeries to physically change their bodies. Some of the terms trans people use to
describe themselves include transgender, transsexual, MtF (male to female), FtM (female to male), whakawahine, fa'afafine or Queen.
In these guidelines, the term "
transgender" is used to cover all trans people.
An
intersex person is someone who is born with, or naturally develops, a body that does not fit typical biological definitions of male or
female. There is a wide range of differing intersex medical conditions and physical variations. The term 'hermaphrodite' was
historically used to describe intersex people. It should not be used by police as it is considered to be derogatory.
Transgender and intersex people often, but not always, have bodies that are different in some ways from other men and women. For
this reason:
‑ Respect the name, pronoun and sex / gender a transgender or intersex person uses to describe themselves. If you are not sure
whether someone prefers to be called 'he' or 'she', politely and discreetly ask.
‑ Do not automatically assume someone's sex / gender identity based on their genitals, breast / chest, or other physical features.
(Note also in this regard, that some transgender women wear breast implants, and some transgender men bind their chest or
wear a prosthetic in their pants. These might be felt during a rub‐down search).
Who should search transgender and intersex people?
In general, searches should be carried out by persons of the same gender identity as the person to be searched. In the case of strip
searches, they may
only be carried out by a person of the same gender identity and no strip search may be carried out in view of any
person who is not of the same gender identity as the person being searched.
These requirements can cause difficulty when the gender identity of the person to be searched is unclear.
Establishing who should conduct a search when gender is unclear
Follow these steps if you are aware that someone is transgender or intersex.
StepAction
1
Ask the person which gender identity they prefer. Most transgender and intersex people will identify simply as male or female and
will probably ask to be searched by someone of the same gender identity. For example, a trans woman (MtF) is likely to ask to be
searched by a female Police employee.
Have the person’s expression of preference witnessed by more than one Police employee (if practicable) and record their
preference in your notebook.
2
If the transgender or intersex person
does state their gender identity :
‑ select searchers of that gender identity to conduct the search. (Strip searches must be conducted by a person of the same
gender identity but if a searcher of the same gender identity is not available for a rub‐down search within a reasonable time
and there is no practicable alternative, a person of the opposite gender identity may conduct the search)
‑ follow standard procedures for conducting
rub‐down and
strip searches.
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3
If a
transgender person will
not state a preferred gender identity:
‑ make an assessment of their gender identity based on their gender presentation (e.g. preferred name, clothing)
‑ use a searcher of the same gender identity as you have determined for a rubdown search unless there is no practicable
alternative, or
‑ in the case of a strip search, explain that based on the information available to you, the strip search will be conducted by
two Police employees of the gender identity that the person presents.
Record your assessment and decision in the electronic custody module or custody/charge sheet, or if not available, in your
notebook.
4
If only one person of the
transgender person's preferred gender identity (or if they've not stated a preference, the gender
identity you've determined best matches their gender presentation) is available for a strip search, consider options where the
person is cooperative, for:
‑ conducting the search with a second searcher not of the same gender identity being within hearing but out of view of the
person being searched (the person conducting the search
must be of the preferred gender identity), or
‑ requesting the assistance of a:
‑ medical practitioner or nurse, or
‑ parent, guardian, or other person for the time being responsible for the day‐to‐day care of the person to be
searched.
5
If an
intersex person will
not state a preference for their gender identity, try to have a male
and a female constable, authorised
officer or searcher conduct the search. Note however, that one searcher will have to become the primary searcher, as it is never
appropriate to have a female search one half of a transgender or intersex person, and a male the other.
6
If searchers of both gender identities are not readily available for an
intersex person's search, choose what appears to be the
most appropriate gender identity to you (e.g. based on the person's name, clothing etc) and consider requesting the assistance of
a:
‑ medical practitioner or nurse
‑ parent, guardian, or other person for the time being responsible for the day‐to‐day care of the person to be searched.
7
Note when assistants are used for transgender and intersex person searches:
‑ their role is to assist with and witness the search, not to medically examine the person or to ascertain their gender identity
or whether they have had surgeries
‑ the medical practitioner, nurse or parent etc does not have to be of the same gender identity as a transgender person.
8
Follow standard procedures for:
‑ conducting searches once the gender of the person(s) to conduct the search is decided. Be mindful that many transgender
or intersex people will be particularly uncomfortable about having their body touched or viewed and may have previously
been ridiculed because of their body or gender identity
‑ reporting strip or internal searches of people in custody. (See the
"Reporting" chapter for further information).
Surprises during searches
If you only become aware that someone is transgender or intersex in the course of conducting a search:
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StepAction
1
Stop a strip search and ask the person which gender identity they prefer. The appropriate gender person should then conduct the
search. Follow the guidance in the table above depending on whether the person states a preference or not.
2
In the case of a rub‐ down search, complete the search limiting it to the extent necessary to eliminate danger or preserve
evidence.
3
Record what has occurred in the electronic custody module, custody / charge sheet or your notebook and any steps taken to
rectify any possible breaches of section
126(4) (i.e. strip searches must be carried out by someone of the same gender identity as
the person being searched and may not be carried out in view of any person not of the same gender identity).
Internal searches
Internal searches are only conducted by medical practitioners. They do not have to be of the same gender identity as the person being
searched.
Standard procedures and guidance in this chapter apply when considering
internal searches of transgender and intersex people.
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Search positions and personal safety
Deciding on a search position
The type of search position used depends on the person's compliance. Always make a
risk assessment before conducting a search.
When deciding which position to use, consider:
‑ how much space you have
‑ potential danger from the person being searched
‑ whether mechanical restraints should be used to mitigate any risk of assault or escape during the search
‑ amount of help you have
‑ number of suspects or people to be searched.
Standing position
StepAction
1
Have the person face you, with hands open over the head. This ensures that no weapon or evidence is concealed in them.
2
Tell the person to turn around and:
‑ interlock their fingers on top of the head
‑ spread their feet wide enough to ensure an uncomfortable position. The toes should be pointing outward, so that the
person is off balance.
3
Conduct the search.
Wall position
StepAction
1
Have the person face you, with hands open over their head. This ensures that no weapon or evidence is concealed in them.
2
Tell the person to stand against the nearest wall or vehicle with:
‑ hands above their head and spread apart
‑ feet back from the wall, and spread apart
‑ toes pointing outward, so they are off balance.
Make sure their hands and feet are sufficiently spread to prevent them making any sudden moves.
3
Conduct the search.
4
If the person makes an aggressive move, counter by kicking a leg out from under them, or knocking an arm down from the wall.
Kneeling position
The kneeling position offers a reasonable degree of safety to the searcher and is more practical than the prone position. Use the
kneeling position if you are in an open area, and there is more than one suspect.
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StepAction
1
Ensure the person is not holding a weapon.
2
Have the person face away from you, kneel, cross the legs and interlock the fingers on top of the head. This places the person in a
very uncomfortable position.
3
Conduct the search in a squatting position, keeping your eye on the person's neck at all times.
Prone position
The prone position offers a degree of safety to the searcher.
StepAction
1
Have the person lie face down on the ground with:
‑ feet spread apart
‑ arms straight out to the sides
‑ palms facing up.
In this position it is very difficult for a person to get up or throw dirt or debris at you.
2
Search the person on the opposite side to which the face is turned. Place your foot on the person's elbow to restrict movement.
3
When moving to the other side, walk around the person's body. Do not step between their legs, because you may be tripped.
Keeping yourself safe during searches
All searches are potentially dangerous. Follow these general guidelines to keep yourself safe:
‑ Take every precaution to protect yourself, e.g. get help from another employee.
‑ Remain behind the person, so they don't know where you are. Never turn your back on the person being searched.
‑ Squat instead of bending over, so you are in a more balanced position and not facing the ground.
‑ Be thorough, so you can confidently pass the person on to another employee. Conduct the search as quickly as possible.
‑ Be aware of any attempts by the person to stall the search.
‑ Always remain alert. Keep your attention on the person to prevent any attempt to dispose of evidence or escape. Watch their
shoulder, because this will move first.
Protecting your health
Always use safe searching practices to prevent your exposure to HIV or hepatitis B or C infections.
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Property removed or seized during a search
If you search a person under any provision in the Search and Surveillance Act 2012 or any other enactment, and remove or seize any
property from them, you must promptly prepare an inventory of what was removed or seized and provide the person with a copy.
(s
125(4))
When people are in custody, follow the procedures for receiving and recording 'detainees property' in the
People in Police custody
chapter. Note that if you take property and retain it as an exhibit for further investigation, you must complete a POL 268.
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Table of Contents
Table of Contents
2
Executive summary
3
Overview
4
Purpose
4
Definitions
4
Related information
4
About production orders
5
What are production orders?
5
Production order versus search warrant
5
Duration of production order
5
Setting duration of production order
5
Applying for a production order
6
Who may apply?
6
Approval to apply for production order directed at telecommunications provider
6
Matters to consider before granting approval
6
Approval to apply for production order directed at media organisation
6
Approval to apply for production order (other than media organisation and telecommunications provider)
6
Issues for corporate recipients of production orders
6
Stipulate reasonable delivery period for forward looking orders for Telco data
7
Requests from other agencies for Police to apply
7
Grounds for applying for a production order
7
How to apply
7
Oral applications for a production order
7
Applications without personal appearance or oral communication
8
Information required in production order applications
8
Using hearsay evidence
8
If further information about an informant is required
8
Which issuing officers should you approach?
9
Application procedure for production orders
10
Requestor’s procedure
10
Issuing production orders
11
Who issues production orders?
11
Is issuing officer’s signature required?
11
Form and content of production orders
11
Executing production orders
12
Execution without being in possession of the order
12
Documents produced under production order
12
Copy of retained document to be given
12
Custody of produced things
12
Responding to an assertion of privilege
12
When are orders invalid?
12
Document retention and reporting
13
Retention and security of production order documents
13
Reporting of production orders
13
Part 9 - Production orders
Executive summary
Key points to note:
‑ You have the choice whether a standard search warrant or production order should be sought in any given case. Businesses can
offset the costs of complying with a production order against the avoidance of the disruption that would otherwise occur by
physical entry and search of the premises under a search warrant.
‑ Using a production order should be an effective investigative tool and the offence(s) under investigation be sufficiently serious
to justify the resource.
‑ The information sought should not make unreasonable or unnecessary demands on a provider of information, whom the order
is against. Stipulate a reasonable delivery period (not less than a week). Otherwise in the case of a telecommunications provider
apply for a surveillance device warrant.
‑ Your
district approver must approve applications for production orders directed at a telecommunications provider for obtaining
call data information.
‑ A Police Executive member or District Commander must approve production order applications relating to news media
organisations.
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Overview
Purpose
This part of the 'Search' chapter provides information about production orders including:
‑ the effect of the orders and how they relate to other powers
‑ who may apply
‑ whose authorisation is required before applying
‑ the conditions to be met before applications can be made and orders issued or made
‑ the procedures for making applications
‑ the form and content of orders
‑ what can be done with documents seized under a production order
‑ requirements for reporting and document retention.
Definitions
This table details the meanings of terms used in this chapter.
Term
Meaning
Call
Call associated data has the same meaning as in section
3(1) of the Telecommunication (Interception Capability and
associated Security) Act 2013.
data
Document Document includes call associated data and the content of telecommunications in respect of which, at the time an
application is made under section
71 for a production order against a network operator, the network operator has storage
capability for, and stores in the normal course of its business, that data and content.
Network Network operator has the same meaning as in section
3(1) of the Telecommunication (Interception Capability and
operator Security) Act 2013.
(s
70)
Related information
See also:
‑ 'Offences relating to orders' in Part 1:
Search introduction
‑ Part 10 ‐
Examination orders.
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About production orders
What are production orders?
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.
Production orders are issued by issuing officers. (These are the same people as for search warrants).
Production order versus search warrant
You have the choice whether a standard search warrant or production order should be sought for use in any given case. While
compliance costs are incurred by a business issued with a production order, these costs are offset against the avoidance of the
disruption that would otherwise occur by physical entry and search of the premises under a search warrant. Very often production
order powers will be less intrusive and involve less cost, than using search warrants as an alternative.
Duration of production order
A production order is in force for the period specified in the order (not exceeding 30 days after the date on which the order is made).
(s
76)
Setting duration of production order
Ensure application time periods under section
76 are reasonable when seeking a production order.
In
Makaea v R [2018] NZCA 284 the Court of Appeal found a high level of care is required by enforcement officers when determining
whether the duration of a production order can be justified, particularly with the intrusion of privacy associated with cell phones.
Note: A shorter period may be desirable, with the option of obtaining a further order if circumstances warrant it.
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Applying for a production order
Who may apply?
Any constable may apply to an issuing officer for a production order. (See further information about
making applications in this
chapter).
(s
71(1))
Approval to apply for production order directed at telecommunications provider
You must seek prior approval from your
district approver before making an application directed to a telecommunications provider
seeking information such as call associated data, or content.
Matters to consider before granting approval
Before granting approval to apply for production orders, the district approver must take these matters into account and be satisfied:
‑ the grounds for applying for a production order are met
‑ the resource benefit of making an application is advantageous to Police and the investigation (i.e. the use of a production order
is an effective investigative tool and the offence(s) under investigation are sufficiently serious to justify the resource)
‑ the information sought does not make unreasonable or unnecessary demands on the telecommunications provider, whom the
order is against, particularly if those documents sought are forward looking (i.e. documents and call associated data coming
into the control of the person etc whom the order is against while the order is in force). See the 'Issues for corporate recipients of
production orders' below for further information about the issues confronting individuals and organisations.
See ‘Issues for corporate recipients of production orders’ for further information about the issues confronting individuals and
organisations.
Note: The issuing officer will also apply external oversight of the grounds, reasonableness and necessity of the application when
deciding whether or not to issue a production order.
Approval to apply for production order directed at media organisation
If your application relates to a news media organisation, you must:
‑ obtain approval from a Police Executive member in the case of PNHQ or a district commander for a district matter, and
‑
follow the guidance on ‘Search warrants, production orders and examination orders involving media organisations’ in ‘Carrying
out search powers with or without a warrant’.
Approval to apply for production order (other than media organisation and
telecommunications provider)
Where practicable obtain written authority to make an application for a production order from a constable of or above the position
level of sergeant where practicable.
Issues for corporate recipients of production orders
All corporate organisations are confronted with these issues when they receive production orders:
‑ Rejecting production orders for want of accuracy and form.
‑ Seek an order for the full 14 days or 30 days where appropriate as the recipient needs time to action your request.
‑ Stipulating an unreasonable time period. Do not seek an order requiring delivery of the results within a short period of time. For
example, delivery in 2 days. The delivery of the response should be every seven days, unless the circumstances dictate that it is
important for a shorter time to be requested. See ‘Stipulate reasonable delivery period for forward looking orders for Telco data’
for
call associated data (CAD) from Telco agency teams for information about what is reasonable, alternative action and
situations of urgency or emergency.
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‑ The production order should be addressed to the corporate name of the organisation e.g. ‘2 Degrees Mobile Limited’ etc. and
not a named employee at that organisation unless there are special reasons to depart from this standard. Note that named
employees will be concerned about their legal risks should they not comply within the required timeframes.
‑ In relation to telecommunication providers, requests for call associated data, content, subscriber details etc. that cannot be
covered by an information request should be sought using a production order not a search warrant.
Note: Should an
information request form be acceptable for the type of information sought, then they are available on Police Forms > Reports.
Note: Seek advice, if you have not previously made application for a production order.
Stipulate reasonable delivery period for forward looking orders for Telco data
When seeking forward looking production orders for
call associated data (CAD) from a telecommunications provider (e.g. Spark,
Vodafone) ensure you stipulate a reasonable delivery period.
The period that you want the data delivered to you should be at least every week and not less. Shorter delivery periods cause
considerable pressures for stretched Telco agency teams. If you seek daily data extractions, then apply for a surveillance device
warrant. See the
'Surveillance' chapter for making application for a surveillance device warrant.
If your case involves urgency or an emergency, then consult with the agency team who will endeavour to comply with your need.
Requests from other agencies for Police to apply
Other agencies with investigative functions but without enforcement powers may request Police to obtain and execute a production
order on their behalf. In these cases, follow the procedures in ‘Government agency requests for assistance with search warrants and
production orders’.
Grounds for applying for a production order
You may apply for a production order if you have reasonable grounds to:
‑
suspect that an offence has been, is being, or will be committed (it must be an offence for which you could apply for a search
warrant), and
‑
believe that the documents sought by the proposed order:
‑ constitute evidential material in respect of the offence, and
‑ are in the possession or under the control of the person against whom the order is sought, or will come into their
possession, or under their control while the order is in force.
(s
72)
How to apply
You must apply for a production order in writing along with a personal appearance before, or communication orally with, the issuing
officer unless it is impracticable to do so in the circumstances. In this situation you may apply to:
‑ make an application
orally, e.g. by telephone or personal appearance,
or
‑ have your application considered
without a personal appearance or oral communication.
(ss
73) &
100)
All applications for production orders
must be made using prescribed forms available in Police Forms > Search and Surveillance >
Production Orders.
Oral applications for a production order
An issuing officer may allow an application for a production order to be made orally (e.g. by telephone or by personal appearance) and
excuse the applicant from putting all or part of the application 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
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personal appearance,
and
‑ all required information is supplied to them (orally, or partly orally and partly in writing).
(s
100(3))
If an oral application is allowed:
‑ 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.
(s
100(4))
Applications without personal appearance or oral communication
An issuing officer may allow an application for a production order without a personal appearance or oral communication if satisfied
that:
‑ the question of whether the order should be issued can be properly determined on the basis of the applicant's written
communication, and
‑ the information required for the application has been supplied to the issuing officer, and
‑ there is no need to ask any questions of, or seek any further information from, the applicant.
(ss
73 &
100)
Information required in production order applications
Applications for a production order must include:
‑ the applicant's name
‑ the provision authorising the making of an application for a search warrant in respect of the suspected offence
‑ a description of the offence that it is suspected has been, is being or will be committed
‑ the facts relied on to show reasonable grounds to suspect an offence has been, is being or will be committed
‑ a description of the documents for which production is sought
‑ the facts relied on to show reasonable grounds to believe the documents sought are in the possession or under the control of
the person against whom the order is sought
‑ whether the person should be required to produce those documents that are in their possession or under their control when
the order is made:
‑ on one occasion only, or
‑ on an ongoing basis (i.e. at the time the order is made
and which come into their possession or under their control at any
time while the order is in force).
(s
71(2))
Using hearsay evidence
Hearsay evidence can be used to outline the grounds on which the application is made, if it is highly reliable. Indicate its reliability by
stating:
‑ 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.
If further information about an informant is required
See ‘What should be included and avoided in applications’ in
Search warrants for the definition of ‘informant’, and the restrictions on
revealing identity of informants and including Covert Human Intelligence Sources (CHIS) information in your production order
application.
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Which issuing officers should you approach?
Always check the current list of authorised issuing officers in your district as they will change from time to time.
It is recommended that an issuing officer from a District or High Court is selected depending on where resultant proceedings are likely
to be heard. If outside court hours or no court is available, take the application to another issuing officer.
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Application procedure for production orders
Preparation of the ‘Application for a Production Order’, ‘Production Order, ‘Production Order Cover Sheet’, obtaining internal
approval and submission of issued order and cover sheet are completed electronically.
Requestor’s procedure
A requestor for a production order must complete the following steps:
StepAction
1
Conduct pre‐application checks:
‑ Set‐up a NIA Case reference (file number) if one does not already exist.
‑ Complete background checks.
2
Prepare and print the application and order:
‑ Ensure file number is included on the application and order.
‑ Sign the application.
Note: ‘Applications for Production Orders’ and ‘Production Orders’
must be made using prescribed forms available in Police
Forms > Search and Surveillance > Production Orders.
3
Seek prior
approval to apply for production order. If order is directed:
‑ at telecommunications provider obtain approval from
district approver
‑ at a media organisation obtain approval from Police Executive member in the case of PNHQ or District Commander for a
district matter
‑ at other than a media organisation and telecommunications provider obtain approval from the position level of sergeant
or above where practicable.
4
If approved, present application to an issuing officer to issue order.
Note: A production order does not require the issuing officer’s signature. All that is required is the name or other individual
designation of the issuing officer (i.e. a number or a code).
5
Prepare ‘Production Order Cover Sheet’. The form can be located in Police Forms (via Microsoft Word) in two folders (each folder
is identical to the other).
Go to Police Forms (I‐Z):
‑ > Information Requests, or Search and Surveillance > Production Orders
‑ > Information Request Form / Production Order Cover Sheet (wait 3 seconds and ‘Information Request Form ‐ Page 1’
information box will appear on the screen) > complete details in the box, select ‘Production Order Cover Sheet’ and click
on ‘Next Page’ to finalise details.
The ‘Production Order Cover Sheet’ is fully populated from the details you have entered and is to be saved and printed.
Note: Once the cover sheet is completed and saved, it cannot be altered. If it is incorrect, it can be disposed of and a new one
created.
6
Attach the ‘Production Order Cover Sheet’ and ‘Production Order’ in an email and send to the agency providing the information.
The agency will provide the information directly to the requestor.
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Part 9 - Production orders
Issuing production orders
Who issues production orders?
An
issuing officer (as for search warrants) may make a production order against a person if satisfied on application that the grounds for
making a production order are met.
(s
74)
Is issuing officer’s signature required?
A production order does not require the issuing officer’s signature. All that is required is the name or other individual designation of
the issuing officer (i.e. a number or a code). Section
89(1) of the Act sets out the application of Part
4. It is reasonable to assume that
the same issuing requirements apply as for search warrants in the absence of further guidance. Part
4 applies to production orders
(section
89(1)(d) and (e) refers) and section
103(4)(a) is in Part 4.
Form and content of production orders
A production order must be in the prescribed form and require the person against whom it is made (
person A):
‑ to give the applicant, or a person identified in the order, any documents described in the order that are in their possession or
under their control when the order is made or at any time while it is in force,
and
‑ if any of those documents are not, or are no longer, in the possession or under the control of person A, to disclose, to the best of
their knowledge or belief, the documents' location to the applicant or person identified in the order.
The production order
must set out:
‑ the name of person A
‑ the grounds on which the order is made
‑ the documents required to be given
‑ whether the documents must be produced on one occasion only, or on an ongoing basis for the duration of the entire order
‑ the time by which, and the way in which, the documents must be produced.
The production order may describe the documents required to be given by reference to a class or category of document.
Note: If the production order is made against a body corporate or an unincorporated body, the order may specify an individual (by
name or by reference to a position held in the body) who is to comply with the order as the body’s representative.
(s
75)
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Part 9 - Production orders
Executing production orders
Execution without being in possession of the order
If it is not possible or practicable for the person executing the production order to have the order in their possession when executing it,
one of the following may be executed:
‑ a facsimile or a printout of an electronically generated copy of the order
‑ a copy made by the person to whom the order is directed, at the direction of the issuing officer and endorsed to that effect.
(ss
77 and
105)
Documents produced under production order
If any document is produced in compliance with an order, you may do one or more of the following:
‑ retain the original document if it is relevant to the investigation. In this situation you must, as soon as practicable, give a copy to
the person who produced it
‑ take copies of the document, or of extracts from it
‑ if necessary, require the person producing the document to reproduce, or to assist any person nominated by the Commissioner
or their delegate to reproduce, in usable form, any information recorded or stored in the document.
(s
78)
Copy of retained document to be given
When you decide to retain a document that has been produced in compliance with a production order, you must as soon as
practicable after the document is produced, take a copy of the document and give the copy to the person who produced the original
document.
(s
79)
Custody of produced things
See
'Procedures applying to seized and produced things' chapter for information about:
‑ the custody of produced things
‑ obtaining access to or the release of produced things
‑ when ownership is disputed
‑ return and disposal of produced things.
Responding to an assertion of privilege
See
Privilege relating to production and examination orders in 'Privilege and immunities under the Act'.
When are orders invalid?
A production order is invalid if:
‑ having regard to the information in the application, the grounds for lawful issue of the order were not satisfied at the time of
issue
‑ the order contains a defect, irregularity, omission, or want of form that is likely to mislead anyone executing or affected by the
order as to its purpose or scope.
If an order is invalid, neither section
204 of the Summary Proceedings Act 1957 nor section
379 of the Criminal Procedure Act 2011
applies to that order.
(s
107)
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Part 9 - Production orders
Document retention and reporting
Retention and security of production order documents
The responsibility for retaining and securing a production order application once it has been presented for signing, remains with the
issuing officer.
When a production order is issued,
the applicant:
must retain...
until the later of the following...
in electronic form or otherwise:
‑ the date of completion of any proceedings in which the validity of the order may be
in issue,
or
‑ the order
‑ the date of destruction or transfer of the order and other documents under the
‑ a copy of the application (if made
Public Records Act 2005 or any other enactment or rule of law.
in written form)
‑ copies all documents tendered in
support of the application
(ss
73(2)(d) &
101)
For further information, see ‘Retention and security of warrants and applications’ in the ‘
Search warrants’ chapter. The guidance for
search warrant documents also applies to production order documents.
Reporting of production orders
There are no reporting requirements for production orders.
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Part 10 - Examination orders
Table of Contents
Table of Contents
2
Part 10 ‐ Examination orders
3
Executive summary
4
Overview
5
Purpose
5
Definitions
5
Business context
5
Non‐business context
5
Organised criminal group
5
Related information
5
About examination orders
6
What are examination orders?
6
Duration of examination order
6
Applying for examination orders
7
Who may apply for an examination order?
7
Approval to apply
7
Conditions for making examination orders
7
Conditions for making order in business context
7
Conditions for making order in non‐business context
7
How to apply
7
Oral applications for an examination order
8
Information required in applications
8
Using hearsay evidence
8
If further information about an informant is required
8
Which Court should you approach with your application?
9
Making examination orders
10
When can an examination order be made?
10
Form and content of examination orders
10
Executing examination orders
11
Presence of lawyer
11
Examination orders involving media organisations
11
Execution without being in possession of the order
11
Responding to an assertion of privilege
11
When are orders invalid?
11
Document retention and reporting
12
Retention of documents
12
Reporting of examination orders
12
Part 10 - Examination orders
Part 10 ‐ Examination orders
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Part 10 - Examination orders
Executive summary
Key points to note:
‑ Examination orders are only to be used to investigate organised crime or serious financial crime.
‑ Only Police Inspectors or above can apply for an examination order.
‑ All applications
must first be approved by a Deputy or Assistant Commissioner, or the District Commander (not an acting District
Commander) of the applicant’s Police district.
‑ Conditions for making (and applying for) orders vary depending on whether the application is made in a business or non‐
business context.
‑ Do not name a confidential informant in the application or include any information that could lead to their identification.
‑ The subject of an order must be given a reasonable opportunity to arrange for a lawyer to accompany them, before appearing
for the examination.
‑ The judge making an examination order must be provided with a report following execution or expiry of the order.
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Part 10 - Examination orders
Overview
Purpose
This part of the
'Search' chapter provides information about examination orders including:
‑ who may apply
‑ whose authorisation is required before applying
‑ the conditions to be met before applications can be made
‑ procedures for applying
‑ the form and content of orders.
Definitions
This table details the meanings of terms used in this chapter.
Term
Meaning
Business
Business context, in relation to the acquisition of any information by a person, means the acquisition of the
context
information in the person's capacity as:
‑ a provider of professional services or advice in relation to a person who is being investigated, or one or
more of whose transactions are being investigated, in respect of an offence; or
‑ a director, manager, officer, trustee, or employee of an entity that is being investigated, or one or more of
whose transactions are being investigated, in respect of an offence.
Non‐business Non‐business context means a context other than a business
context
context.
Organised
Organised criminal group in this section has the same meaning as in section
98A of the Crimes Act 1961.
criminal group
Related information
See also:
‑
Offences relating to orders in Search ‐ Introduction
‑ Part 9 ‐
Production orders
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Part 10 - Examination orders
About examination orders
What are examination orders?
Examination orders are court orders made under section
38 requiring a person to answer questions when they have previously refused
to do so.
Examination orders are only to be used to investigate organised crime or serious financial crime. An examination order allows
professionals to assist Police without any risk of breaching professional standards or regulations.
Examination orders are one of the most contentious aspects of the Search and Surveillance Act 2012 due to public concerns that they
remove an individual's right to silence and the privilege against self‐incrimination.
Duration of examination order
An examination order is in force for the period specified in the order (this cannot exceed 30 days after the date the order is made).
(s
41)
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Part 10 - Examination orders
Applying for examination orders
Who may apply for an examination order?
A constable of or above the position level of Inspector may, if given approval, apply to a District or High Court judge for an examination
order if satisfied that the
conditions for making an order are met in respect of the person to be examined in a:
‑
business context (s
33) or
‑
non‐business context (s
35).
Approval to apply
All applications for an examination order
must first be approved by:
‑ a Deputy Commissioner, or
‑ an Assistant Commissioner, or
‑ the District Commander (other than an acting District Commander) of the Police district in which the constable is stationed.
(s
33(1) &
35(1))
Conditions for making examination orders
The conditions for making (and applying for) an examination order vary depending on whether the application is made in a business or
non‐business context.
Conditions for making order in business context
The conditions for making an examination order in a
business context against a person are that:
‑ there are reasonable grounds to suspect an offence punishable by imprisonment for a term of 5 years or more has been, is
being, or will be committed, and
‑ there are reasonable grounds to believe the person sought to be
examined:
‑ has information that is evidential material in respect of the offence, and
‑ acquired the information in respect of which the order is sought in a business context, and
‑ the person has been given a reasonable opportunity to provide that information and has not done so.
(s
34)
Conditions for making order in non‐business context
The conditions for making an examination order in a
non‐business context against a person are that:
‑ there are reasonable grounds to suspect that an offence punishable by imprisonment has been, is being, or will be committed,
and the offence:
‑ involves serious or complex fraud punishable by imprisonment for a term of 7 years or more, or
‑ has been, is being, or will be committed wholly or partly by an organised criminal group (as defined in section
98A(2) of
the Crimes Act 1961), and
‑ there are reasonable grounds to believe that the person sought to be examined:
‑ has information that is evidential material in respect of the offence, and
‑ acquired the information in respect of which the order is sought in a non‐business context, and
‑ the person has been given a reasonable opportunity to provide that information and has not done so.
(s
36)
How to apply
You must apply for an examination order in writing along with a personal appearance before, or oral communication with, the judge
unless it is impracticable to do so in the circumstances. In this situation you may apply to the judge to:
‑ make an application
orally, e.g. by telephone or personal appearance, or
‑ have your application considered without a personal appearance or oral communication
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Part 10 - Examination orders
(s
s37(2) and
100)
Applications must be made using the prescribed forms available in Police Forms > Search and Surveillance > Examination Orders.
Oral applications for an examination order
A judge may allow an application for an examination order to be made orally (e.g. by telephone or by personal appearance) and excuse
the applicant from putting all or part of the application in writing if satisfied that:
‑ requiring a written application would result in a delay that would compromise the effectiveness of the examination,
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).
(s
100)
If an oral application is allowed:
‑ the judge must record the grounds for the application as soon as practicable
‑ the applicant must complete:
‑ the application form capturing the information conveyed to the judge as soon as practicable and in any event within 24
hours, and
‑ the order.
Information required in applications
Applications for an examination order must include:
‑ the applicant's name
‑ a description of the offence that it is suspected has been, is being or will be committed
‑ the facts relied on to show reasonable grounds to suspect that a
n offence has been, is being or will be committed
‑ a description of the information sought to be obtained by the examination order
‑ the facts relied on to show reasonable grounds to believe that the person against whom the order is sought has the information
‑ the facts that indicate that the person against whom the order is sought:
‑ acquired the information in respect of which the order is sought in a business or non‐business context
‑ has been given a reasonable opportunity by a constable to provide the information but has not done so.
(ss
33(2) and
35(2))
The application must also specify and confirm that all the
conditions required for making an examination order in the business or non‐
business context are met.
Using hearsay evidence
Hearsay evidence can be used to outline the grounds on which the application is made, if it is highly reliable. Indicate its reliability by
stating:
‑ the informant's credibility
‑ 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.
If further information about an informant is required
Follow these steps relating to informant information if you are required to supply further information concerning the grounds on
which the order is sought.
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Part 10 - Examination orders
StepAction
1
Do not name a confidential informant in the application or include any information that could lead to their identification.
2
Explain to the judge that you do not want the identity of the informant revealed.
3
While a judge may require you to supply further information concerning the grounds on which the order is sought, they must
not,
in any circumstances, require you to disclose the name, address, or other identifying detail of an informant
unless, and only to
the extent, that such information is necessary for them to assess:
‑ the credibility of the informant, and/or
‑ whether there is a proper basis for issuing the order.
4
Note current Police guidance on providing sufficient information to judges issuing warrants about informants is contained in Law
Notes issued in respect of R v Williams [2007] NZCA 52 (see
Law Notes ‐ 30 May 2007) and R v Dunedin District Court, so the
warrant issuer can assess reliability.
5
Be prepared to withdraw any examination order application if the judge demands details that identify the informant.
Which Court should you approach with your application?
It is recommended that your selection of a Judge from a District or High Court should be decided on where resultant proceedings are
likely to be heard.
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Part 10 - Examination orders
Making examination orders
When can an examination order be made?
A District or High Court Judge may make an examination order if they are satisfied:
‑ the
conditions for making an order are met,
and
‑ it is reasonable to subject the person to compulsory examination having regard to:
‑ the nature and seriousness of the suspected offending
‑ the nature of the information sought
‑ the relationship between the person to be examined and the suspect, and
‑ any alternative ways of obtaining the information.
(s
38)
Form and content of examination orders
An examination order made must be in the prescribed form and must require the person against whom it is made:
‑ to attend before the Commissioner or the Commissioner's delegate, and
‑ to answer any questions relevant to the information in respect of which the order was made.
The examination order must set out:
‑ the name of the person required to comply with the order
‑ the grounds on which the order is made
‑ the nature of the questions that the person is to be asked (questions must be relevant to the information in respect of which the
order was made)
‑ if the examination is to be conducted by a delegate of the Commissioner, the delegate's name
‑ a condition that, in accordance with section
43, an examination order report must be provided within 1 month after the
completion of the examination conducted under the order to the judge who made the order or, if that judge is unable to act, to
another judge of the same court
‑ any requirement that the judge making the order considers reasonable for inclusion of specified information in the examination
order report provided under section
43:
‑ where the examination is to take place
‑ when it is to take place or how a time for it is to be fixed.
(s
39)
Note: The Judge issuing the order must be named.
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Part 10 - Examination orders
Executing examination orders
Presence of lawyer
A person subject to an examination order must be given a reasonable opportunity to arrange for a lawyer to accompany them, before
being required to appear before the Commissioner or the Commissioner's delegate.
(s
40)
Examination orders involving media organisations
Follow the guidance on Search warrants, production orders and examination orders involving media organisations in "Carrying
out search powers with or without a warrant".
Execution without being in possession of the order
If it is not possible or practicable to have the examination order in your possession when executing the order, one of these may be
executed instead:
‑ a facsimile or a printout of an electronically generated copy of the order
‑ a copy made by the person to whom the order is directed, at the direction of the judge and endorsed to that effect.
(ss
42, and
105)
Responding to an assertion of privilege
See
Privilege relating to production and examination orders in the "Search ‐ Privilege and immunities under the Act" chapter.
When are orders invalid?
An examination order is invalid if:
‑ having regard to the information in the application, the grounds or conditions for lawful issue of the order were not satisfied at
the time of issue
‑ the order contains a defect, irregularity, omission, or want of form that is likely to mislead anyone executing or affected by the
order as to its purpose or scope.
If an order is invalid, neither section
204 of the Summary Proceedings Act 1957 nor section
379 of the Criminal Procedure Act 2011
applies to that order.
(s
107)
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Part 10 - Examination orders
Document retention and reporting
Retention of documents
When an examination order is made
the applicant:
must retain...
until the later of the following...
whether in electronic form or otherwise:
‑ the date of completion of any proceedings in which the validity of the order may be
in issue,
‑ the order
or
‑ a copy of the application (if made
‑ the date of destruction or transfer of the order and other documents under the
in written form)
Public Records Act 2005 or any other enactment or rule of law.
‑ copies all documents tendered in
support of the application
Reporting of examination orders
Examination orders give Police significant powers over individuals and because of this the Act provides a robust legislative oversight
process. For information about reporting requirements for examination orders see
Production and examination orders in the
'Reporting' chapter.
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Part 11 - Declaratory Orders
Table of Contents
Table of Contents
2
Executive summary
3
Overview
4
Purpose
4
What is a declaratory order?
4
Background and likely use
4
Compliance with the New Zealand Bill of Rights Act
4
Applications for declaratory orders
5
Who may apply for a declaratory order?
5
Approval to apply
5
When to apply for a declaratory order
5
Who may make declaratory order?
5
Application procedures for a declaratory order
5
Information required in declaratory order applications
6
Information about informants
6
Form and content of declaratory order
7
Reporting
8
Reporting to the Commissioner and in annual reports
8
Part 11 - Declaratory Orders
Executive summary
Key points to note:
‑ Declaratory orders provide judicial clarification that an intended device (other than a surveillance device), technique, procedure
or activity is lawful and reasonable.
‑ Orders do not confer any special status on evidence collected using the authorised device, technique, procedure or activity ‐ the
evidence, and the way it is collected, must still comply with the New Zealand Bill of Rights Act and is subject to normal evidential
tests at trial.
‑ Any constable may apply for a declaratory order. Their application must be approved by an Inspector or above and by the
Director: Legal Services.
‑ There does not always have to be a reasonable suspicion of an offence or a reasonable belief that evidential material relevant to
a current investigation will be collected when applying for a declaratory order ‐ In some circumstances a new technology or
procedure may legitimately be used for general intelligence gathering.
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Part 11 - Declaratory Orders
Overview
Purpose
This part of the
'Search' chapter:
‑ describes declaratory orders and their purpose
‑ outlines
application procedures.
Requirements for reporting declaratory order applications are detailed in the
Reporting chapter.
What is a declaratory order?
A declaratory order is a statement by a judge that they are satisfied that the use of a device, technique, or procedure, or the carrying
out of an activity, specified in the order is, in the circumstances of the use or the carrying out of the activity specified in the order,
reasonable and lawful.
A declaratory order is advisory in character and does not affect the jurisdiction of any court to determine whether the activity that was
the subject of the order was reasonable and lawful.
Background and likely use
The declaratory order regime under sections
65 to
69 of the Search and Surveillance Act 2012 simply provides judicial clarification that
the intended device (other than a surveillance device), technique, procedure or activity is lawful and reasonable.
A declaratory order is not a power as it does not authorise an enforcement officer to do anything that is unlawful. Rather it provides a
mechanism by which an enforcement officer may test the reasonableness of a novel investigative device, technique, procedure or
activity prior to employing that investigative tool to obtain evidence. Declaratory orders are likely to be used for surveillance purposes
rather than for search activities. For example surveillance using heat or smell detectors may possibly be covered under declaratory
orders.
Compliance with the New Zealand Bill of Rights Act
Declaratory orders facilitate a regime under which enforcement agencies can undertake the investigation of crime in the modern era
and keep pace with technological advancement, whilst ensuring novel technologies are employed in a way that is reasonable and
appropriately respects those civil liberties and human rights codified in the
New Zealand Bill of Rights Act 1990.
The granting of a declaratory order does not confer any special status on evidence collected using the device, technique, procedure or
activity authorised under the order. The evidence, and the way it is collected, must still comply with the New Zealand Bill of Rights Act
and is subject to normal evidential tests at trial.
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Part 11 - Declaratory Orders
Applications for declaratory orders
Who may apply for a declaratory order?
Any constable may apply for a declaratory order.
Approval to apply
The application must be approved by a constable with the position level of Inspector or above and by the Director: Legal Services.
When to apply for a declaratory order
You may apply for a declaratory order when:
‑ you wish to use a device, technique, or procedure, or to carry out an activity, that is not specifically authorised by another
statutory regime, and
‑ the use of the device, technique, or procedure, or the carrying out of the activity, may constitute an intrusion into the
reasonable expectation of privacy of any other person.
(s
66(2))
Unlike applications for search warrants or surveillance device warrants, there will not always be a need to have any reasonable
suspicion as to an offence or any reasonable belief that evidential material relevant to a current investigation will be collected.
Whether this is required will depend entirely on the nature of the circumstances. Many activities that involve the use of a new
technology or procedure may legitimately be used for general intelligence gathering if they do not involve an unjustified intrusion on a
reasonable expectation of privacy.
Who may make declaratory order?
A judge may make a declaratory order if satisfied that the use of a device, technique, or procedure, or the carrying out of an activity, in
the circumstances of the proposed use or carrying out of the activity, is reasonable and lawful.
(s
68)
Application procedures for a declaratory order
The following procedures reflect those agreed between Police and the Chief High Court Judge and the Chief District Court Judge for
declaratory order applications. (These are recorded in the 2012 Practice note: Procedures for processing surveillance device warrant
applications):
‑
2012_Practice_Note_(SS_Act_2012).pdf
288.03 KB
5/8
Part 11 - Declaratory Orders
StepAction
1
Obtain the appropriate approval to apply for a declaratory order.
2
The application must be made in writing using the declaratory order application and order forms available in Police Forms >
Search and Surveillance > Declaratory Orders.
Ensure the
information required by section 67 is adequately covered in the application. However,
keep the amount of evidence
"within reasonable bounds" ‐ this is part of the Police agreement with the judiciary.
3
The application must be checked and authorised by a Police legal adviser.
Note: The legal adviser will record the application in a
central repository for declaratory orders at Legal Services.
4
Notify the designated registry contact person at the relevant High Court Registry or District Court of the impending application
and any degree of urgency associated with it.
5
Provide the written application for the order, along with two copies of the declaratory order to the designated registry contact
person at the relevant court in a secure envelope. (See Form and content of declaratory order
s below).
6
All applications for declaratory orders will be determined on the papers. If having considered the written application, the judge
requires further information or clarification on any matter, a minute should be issued to that effect.
7
If the judge is prepared to make the declaratory order, the judge will sign the order and advise the nominated contact person.
8
If the application is successful, one signed copy of the order will be returned to the applicant and the other retained with the
application.
9
All application documents, including any notes made by the judge, will be kept in a secure envelope, sealed, dated and signed by
the judge before being returned for safe‐keeping in secure storage in the court registry.
Note: There is no:
‑ requirement to provide history of previous applications within 3 months of search and surveillance device warrants or
declaratory orders
‑ time limit set for undertaking the use of the device, technique, procedure or activity from the issuing of the order
‑ requirement to confirm truth and accuracy of the contents of the application
Information required in declaratory order applications
The application must be made in writing and set out in reasonable detail:
‑ the applicant's name
‑ a description of the device, technique, procedure, or activity with enough detail to enable the judge to understand what is
proposed to be used or undertaken
‑ the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed use of the
device, technique, procedure, or activity
‑ the circumstances in which the device, technique, or procedure is proposed to be used or the activity undertaken
‑ the purpose for which the device, technique, or procedure is to be used or the activity undertaken.
(s
67)
Information about informants
See the section titled,
'Including informant information in search warrant applications' in '
Search warrants for information about the
definition of informant, revealing identity of informants and including Covert Human Intelligence Sources (CHIS) information in your
declaratory order application.
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Part 11 - Declaratory Orders
Form and content of declaratory order
Every declaratory order must be in the prescribed form and contain, in reasonable detail, these particulars:
‑ the name of the judge making the order and the date it is made
‑ a description of the device, technique, procedure, or activity that the order relates to, with enough detail to enable the
enforcement officer using the device, technique, or procedure, or carrying out the activity, to understand what is covered by the
order
‑ the name, address, or other description of the person, place, vehicle, or other thing that is the object of the use of the device,
technique, procedure, or activity (if available)
‑ the circumstances in which the device, technique, or procedure is to be used or the activity undertaken
‑ the purpose for which the device, technique, procedure, or activity is to be used, or for which the activity is to be undertaken.
(s
69)
Note: The Judge making the order must be named.
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Part 11 - Declaratory Orders
Reporting
Reporting to the Commissioner and in annual reports
See the
Reporting chapter for information about the requirements for reporting declaratory orders to the Commissioner and in Annual
Reports.
8/8
Part 12 - Procedures applying to seized and produced
things
Table of Contents
Table of Contents
2
Policy statement and principles
4
What
4
Why
4
How
4
Overview
5
Purpose of this chapter
5
Dealing with other than seized and produced things
5
References to the "Act"
5
Recording and storing seized and produced things
6
Procedures for recording seized and produced things
6
Seized and produced things to be stored in property /exhibit stores
6
Return, transfer, and custody of seized or produced things
7
Certain things must be returned
7
Transfer of things between law enforcement agencies
7
Custody of seized or produced things
7
Custody when things are held by other agencies
7
Immediate release of things when events occur
8
When things relate to more than one offence
8
Extension of time for holding things
8
Returning things when copies adequate
8
Returning exhibits
8
Applications for access to or release of things
9
Who can apply for access or release?
9
Making the decision
9
Decision to be in writing
9
Unconditional and conditional release or access under Police bond
9
Police bond
9
Application to district court for access to things
10
Powers of court
10
Application to district court for release of things
10
Failure to comply with bond or conditions
10
Disputed ownership and forfeiture
12
Disputed ownership
12
Effect of a court order
12
Forfeiture to Crown if ownership is not established
12
Disposal of seized or produced things
13
Disposal of unlawful things
13
Disposal of forensic copies
13
Copies of computer or other storage data
13
Other copies and generated material may be retained
13
Application to district court to dispose of seized property
13
Court refusal to grant an order
14
Sale or disposal of seized and produced things
14
Application of proceeds
14
Drugs
14
Court related documentation relating to seized and/or produced things
15
"Person with an interest" defined
15
Documentation for Court
15
Description of seized or produced things on documentation
15
Copies of documentation
15
Application
15
Order
15
Person requesting copies of application or order relating to seized and/or produced things
17
Part 12 - Procedures applying to seized and produced things
Policy statement and principles
What
This chapter contains procedures that apply to things that are seized or produced, apart from property taken from persons
locked up in Police custody and privileged material, which are both dealt with elsewhere in the ‘Search’ chapter (‘Searching
people’ and ‘Privilege and immunities under the Act’).
The chapter outlines what must be done with seized and produced items and when they must be returned to the owner.
Why
To deliver services in relation to seized and produced items that the public expect, deserve and want from their Police.
How
Police wil :
comply with subpart
6 of part 4 (sections 149-163) of the Search and Surveil ance Act 2012
provide an inventory of al things seized no later than 7 days after the seizure
return, transfer, retain, al ow access or release things seized or produced according to law
manage disputed ownership, forfeiture, disposal and requests for copies of seized or produced things.
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Part 12 - Procedures applying to seized and produced things
Overview
Purpose of this chapter
This chapter outlines the procedures in the Act applying to things
after their initial seizure or production including:
the rights of owners and others in relation to things seized or produced
the return and custody of seized or produced things
applications for access to or release of seized or produced things
disputed ownership and forfeiture of seized or produced things
disposal of seized or produced things.
Information about:
what can be seized during a search
the requirements for recording items seized during a search and for providing notice (an inventory) about what is seized
is contained in '
Carrying out search powers with or without a warrant'.
Dealing with other than seized and produced things
See the
'Exhibit and property management' chapter for information about dealing with other than seized and produced things,
e.g. found property and property taken possession of as an exhibit or for safe keeping.
References to the "Act"
References to "the Act" or to sections of an Act in the above chapters are to th
e Search and Surveil ance Act 2012 unless
otherwise stated.
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Part 12 - Procedures applying to seized and produced things
Recording and storing seized and produced things
Procedures for recording seized and produced things
At the completion of a search, Police must give the occupier of a place or person in charge of the vehicle
written notice about
the search including the reasons for it, and how enquiries about the search can be made. This notice must also include advice
about whether or not items were seized.
(s
131)
If anything was seized, the person must be given an
inventory of the things seized no later than 7 days after the seizure,
including information about rights to access the seized items and to bring claims of privilege. These obligations extend also to
the owners of seized items, when they are identified.
(s
133)
See
Notice and inventory requirements' in the
'Carrying out search powers with or without a warrant' chapter for detailed
procedures on recording seized items and providing the required notice fol owing a search.
Seized and produced things to be stored in property /exhibit stores
As a general principle, al seized and produced property, with the exception of cash, must be stored in a common property
store. However, in exceptional circumstances the District Commander / National Manager may authorise storage in alternative
premises.
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Part 12 - Procedures applying to seized and produced things
Return, transfer, and custody of seized or produced things
Certain things must be returned
Any thing seized or produced:
which is …
must be…
not required for investigative or evidential purposes,
returned to its owner or the person entitled to possession, or
or
made the subject of an application for
disputed ownership
(s
154), or
not liable to forfeiture to the Crown or any other
disposed of as an unlawful item (
s160), or
person (by law, court order or otherwise)
disposed of as
forensic copies of computer data if it does
not contain evidential material (s
161), or
destroyed if it:
is perishable and has become rotten or deteriorated,
or
is likely to become rotten or perish before a court
orders its disposal, or
is likely to pose a risk to public health.
(s
150)
Transfer of things between law enforcement agencies
Things seized or produced to Police may be transferred to another law enforcement agency. A document for the transfer of
things between law enforcement agencies must be prepared. Contact your District Legal Adviser for assistance with preparing
the documentation. The District Legal Adviser may also seek assistance from Legal Services at PNHQ.
Notes:
The obligations under
Part 4 of the Search and Surveil ance Act 2012 are transferred to the law enforcement agency
after the transfer of the thing is carried out (s
90).
You may set conditions of the transfer on the transfer document.
Custody of seized or produced things
Any thing seized or produced:
which is…
may be …
required for investigative or
held in Police custody or by a person acting on behalf of Police
until the first of the
evidential purposes,
or
following occurs:
liable to forfeiture to the
Crown or any other person
a decision is made not to bring proceedings
(by law, court order or
the thing is forfeited to the Crown or any other person
otherwise)
the thing is released fol owing a District Court order (
s158 or
s159)
proceedings for an offence have not started within six months of the seizure or
production
and the person from whom it was seized has requested its return (unless
an application for an extension has been made) (s
153)
proceedings are withdrawn or dismissed, or completed
the thing is disposed of as an unlawful item (
s160).
(s
151(1))
Custody when things are held by other agencies
Things held by other agencies for examination are stil in Police custody as long as they are under the direction and control of
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Part 12 - Procedures applying to seized and produced things
Police. However things transferred to another law enforcement agency for the purposes of investigation, prosecution or
forfeiture become the responsibility and custody of that agency.
(s
90)
Immediate release of things when events occur
Once the relevant event occurs (see
custody table above), the thing must be immediately released:
to the owner or a person entitled to possession,
unless it is an unlawful thing for disposal, or
in the case of things forfeited to the Crown or another person or subject to court orders requiring access or release, in
the manner required under the Act.
When things relate to more than one offence
If the thing is seized or produced in relation to more than one al eged offence, the thing does not need to be released until the
first of the events described in the tables above has occurred in relation to each and every al eged offence.
(s
151(2) & (3))
Extension of time for holding things
You may apply to the district court for an extension of time to hold a seized or produced thing if:
a request has been made for its return, and
you wish to hold it for longer than six months in circumstances where no proceedings for an offence involving that thing
have been brought.
(s
153)
'Application for an extension of time for holding thing(s) seized or produced' form SZ3 and the 'Extension of order' form SZ4
are not available on Police Forms because they involve a civil process and must comply with the format requirements set in
the
District Court Rules 2014. Contact your District Legal Adviser for assistance with preparing the documentation. The District
Legal Adviser may also seek assistance from Legal Services at PNHQ. These applications must be lodged by a lawyer who
holds a current practising certificate as a barrister or as a barrister and solicitor.
Returning things when copies adequate
The O/C case may use discretion and return the thing to the owner or to a person entitled to possession if a photograph or
copy of a seized or produced thing wil be adequate for investigative or evidential purposes.
(s
152)
Returning exhibits
Where the thing is an exhibit in criminal proceedings or civil proceedings under the Criminal Proceeds (Recovery) Act 2009,
the court may, during or after the hearing, make an order about the thing's disposal. If an order is not made, you may:
return the thing to the person who produced it, or from whom it was seized as soon as practicable,
or
apply to a district court judge for an order about its disposal.
Do not hold things on the off-chance that you can use them as evidence in a subsequent, unrelated offence.
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Part 12 - Procedures applying to seized and produced things
Applications for access to or release of things
Who can apply for access or release?
Applications to Police for access to or the release of seized or produced things before proceedings are brought can be made
by:
the person who produced the thing or from whom it was seized
the owner or person entitled to possession
any person with a legal or equitable interest in the thing.
The application to Police must be made in writing.
Making the decision
The O/C case may:
release the thing, or
provide reasonable access to it, or
refuse the application on the ground that release of the thing or, as the case requires, access to it, is likely to prejudice
the maintenance of the law.
A release or provision of access to a thing may be:
unconditional, or
under Police bond for a sum (with or without sureties), and on conditions, acceptable to the person in whose custody the
thing is.
(s
156)
Decision to be in writing
The applicant
must be informed of the Police decision in writing.
Use the 'Letter of reply to applicant requesting release of or access to thing seized or produced' form (SZ11) located in Police
Forms > Search and Surveil ance > Seizure, when responding to an application.
Note: The letter must also advise the applicant that they may apply to the District Court for a review of:
any refusal relating to their request, or
the conditions set by Police relating to the thing(s) release or access.
(s
156)
Unconditional and conditional release or access under Police bond
Whether the decision is for the unconditional or conditional release of or access to the thing, the decision letter must name a
Police employee (and state their business address) who is to be contacted to arrange for the release of or access to the thing.
If the release or access is conditional, the decision letter must advise that a bond is to be signed in order to arrange release or
access.
(s
156)
Police bond
Use the 'Police bond' form (SZ12 - located in Police Forms > Search and Surveil ance > Seizure) for the conditional release of
or access to a thing seized or produced.
Prepare sufficient copies of the Police bond for:
court (original, if application for estreat of bond is required)
applicant
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Part 12 - Procedures applying to seized and produced things
each surety
file.
Application to district court for access to things
A person can apply to the District Court for access to a seized or produced thing if their application to Police under sectio
n 156
for access was refused or granted subject to conditions they do not accept.
Powers of court
The district court may:
grant the application and may require sureties and impose conditions, or
refuse it on the ground that al owing access or varying or cancel ing the conditions concerned is likely to prejudice the
maintenance of the law.
(s
158)
Application to district court for release of things
A district court may, on an application, release a seized or produced thing, if it is satisfied that it would be contrary to the
interests of justice for the thing to be retained in custody having regard to:
the gravity of the al eged offence
any loss or damage to the applicant that is caused or likely to be caused by not returning the thing
the likely evidential value of the thing, having regard to any other evidence held by Police
whether its evidential value can be adequately preserved by means other than by keeping it.
The court may require sureties and impose conditions on a release.
(s
159)
Failure to comply with bond or conditions
Fol ow this table if a person fails to comply with any bond, surety, or condition imposed by Police on the release of or access to
a thing.
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Part 12 - Procedures applying to seized and produced things
Who
Actions
Police
The O/C case may:
response
seize the thing again, or
require it to be produced, or
direct that access to the thing be ended,
and
apply to the district court for an order for estreat of the bond.
'Application for estreat of bond' form (SZ9) and 'Estreat of bond order’ (SZ10) are not available on Police Forms
because they involve a civil process and must comply with the format requirements set in the District Court Rules
2014. Contact your District Legal Adviser for assistance with preparing the documentation. The District Legal
Adviser may also seek assistance from Legal Services at PNHQ. These applications must be lodged by a lawyer
who holds a current practising certificate as a barrister or as a barrister and solicitor.
District
On an application for an order for estreat of the bond, the registrar of the district court must:
court
fix a time and place for the hearing of the application, and
response
not less than 7 days before the time fixed, cause to be served on every person bound by the bond a notice of
the time and place for the hearing.
Court
If the court is satisfied that a condition of the bond has not been complied with, it may make an order to estreat the
order
bond:
in the amount it thinks fit, and
to any person bound by the bond on whom notice of the hearing is proved to have been served as required
above.
The amount payable under the bond is recoverable as if it were a fine.
(s
157)
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Part 12 - Procedures applying to seized and produced things
Disputed ownership and forfeiture
Disputed ownership
If a seized or produced thing is not to be produced in evidence but there is a dispute about its ownership or you are not sure
who to return it to (e.g. because it is unclaimed) you may apply to the district court for directions as to the ownership or holding
of the property.
The district court may order that the thing be:
destroyed
forfeited to the Crown (if authorised by another enactment)
delivered to the person appearing to be the owner and entitled to possession of it, or
if the owner or person entitled to possession cannot be found, make any order with respect to its possession or sale as
the court thinks fit.
When seeking directions as to ownership or holding of the property, the ‘Application for directions as to ownership or holding
of seized or produced thing’ form (SZ5) and ‘Ownership or holding order’ form (SZ6) are not available on Police Forms,
because they involve a civil process and must comply with the format requirements set in the
District Court Rules 2014.
Contact your District Legal Adviser for assistance with preparing the documentation. The District Legal Adviser may also seek
assistance from Legal Services at PNHQ. These applications must be lodged by a lawyer who holds a current practising
certificate as a barrister or as a barrister and solicitor.
Effect of a court order
If, after a court order is made, an action is commenced for the recovery of the thing or its value, the order and the delivery of
the thing in accordance with the order may be given and must be received in evidence in bar of the action.
No such order or delivery affects the right of any person entitled by law to possession of the thing to recover the thing from any
person or body (other than from a constable, other enforcement of
ficer or the Crown).
(s
154)
Forfeiture to Crown if ownership is not established
A thing that is seized or produced is forfeited to the Crown if:
the owner or person entitled to its possession is not established within 60 days of seizure or production, and
the thing:
is not, after 60 days, stil required for investigative or evidential purposes, and
has not been disposed of or sold by court order within that 60 days.
To try and establish ownership of a thing in Police custody, you must (unless it is impossible or impracticable to make contact):
advise…
that…
the person who produced the thing or from whom it was seized
the thing wil be forfeited to the Crown if
the occupier or owner of the place or vehicle where the thing was
ownership is not established.
before it was produced or seized
any other person who you believe may be affected by the forfeiture
(s
155)
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Part 12 - Procedures applying to seized and produced things
Disposal of seized or produced things
Disposal of unlawful things
You may destroy a seized or produced thing:
If…
and if...
it was unlawful under New Zealand law for a person to be
you have given notice to the person from whom it was
in possession of it (e.g. a control ed drug found in
seized or produced, and they:
circumstances in which possession is an offence against
consent to its destruction, or
the
Misuse of Drugs Act 1975),
and
do not within 30 working days object to its
there is no mechanism provided for disposing of the thing
destruction,
or
or it has not been disposed of under any other
the person to whom notice should be given cannot be
enactment,
and
located after reasonable inquiries have been made,
or
no order has been made by a court as to its disposal…
the person objects to the destruction within 30 working
days of receiving the notice,
and on an application to
determine the thing's status, the court is satisfied that
possession by the person is unlawful.
Use the 'Notice to person of disposal by destruction of seized or produced unlawful thing' form, located in Police Forms >
Search and Surveil ance > Seizure, when giving notice to the person from whom the thing was seized or produced.
(s
160)
Disposal of forensic copies
Copies of computer or other storage data
If you make a forensic copy of any data held in a computer or other data storage device and the…
data contains…
then you…
no evidential material
must ensure the forensic copy and copies made are:
deleted
erased,
or
otherwise destroyed in a way that prevents retrieval of the copy or copies by any method.
a mixture evidential and not
may:
evidential material
retain the forensic copy and any copies made of that copy in their entirety, and
continue to search that forensic copy and any copies made of it, if such a search was
authorised by the search power under which it was seized.
(s
161)
Other copies and generated material may be retained
Any thing made or generated by Police exercising a search power (e.g. photographs or audio or video recordings or copies of
things) may be retained as part of permanent Police records.
The exception may be when a privilege under section
136 and any other enactment or rule of law exists.
(s
162)
Application to district court to dispose of seized property
You may apply to a district court for an order that a thing seized, produced or transferred by another enforcement agency be
disposed of (by sale or otherwise):
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Part 12 - Procedures applying to seized and produced things
if…
and…
you believe the thing:
you have made reasonable efforts to advise these people of
your intended application:
is perishable or likely to deteriorate, or
the person who produced the thing or from whom it was
the cost of holding the thing is unreasonable having
seized
regard to its market value
the owner or person entitled to possession of the thing
any person with a legal or equitable interest in the thing.
(s
163)
Note: 'Application for disposal of seized/produced property' form (SZ7) and the 'disposal order' form (SZ8) are not available on
Police Forms because they involve a civil process and must comply with the format requirements set in the District Court
Rules 2014. Contact your District Legal Adviser for assistance with preparing the documentation. The District Legal Adviser
may also seek assistance from Legal Services at PNHQ. These applications must be lodged by a lawyer who holds a current
practising certificate as a barrister or as a barrister and solicitor.
Court refusal to grant an order
If the court refuses the order, Police must continue to hold the thing until it is released in accordance with section 151(2). (See
Custody of things seized or produced in this chapter).
Sale or disposal of seized and produced things
If seized and produced things are to be sold or otherwise disposed of fol owing a court order, you should fol ow the disposal
procedures applying to found property in the
‘Exhibit and property management’ chapter as far as practicable. See these parts
in particular:
'Custody and disposal of exhibits'
'Disposal of found property'.
Application of proceeds
Police must hold in custody any proceeds received from carrying out the court order (less costs of sale and any sums required
to be paid to a security holder or other person as a condition of the order for sale) as if the proceeds were the seized property.
(Section
151(1) applies with any necessary modifications).
(s
163(3) & (4))
Drugs
Fol ow the additional procedures in the
'Exhibit and property management' chapter for the receipt and destruction of drugs.
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Part 12 - Procedures applying to seized and produced things
Court related documentation relating to seized and/or produced things
"Person with an interest" defined
'Person with an interest', in this section, means:
the person who produced the thing or from whom it was seized
the owner or the person entitled to possession of the thing
any person with a legal or equitable interest in the thing.
Documentation for Court
Both the application and order relating to seized and/or produced things must be presented to a Judge when Police request:
an extension of time (s
153 - SZ3 and SZ4 forms for District Court only)
ownership holding (s
154 - SZ5 and SZ6 forms for District Court only)
disposal of property (s
163 - SZ7 and SZ8 forms for District Court only)
estreat of bond (s
157 - SZ9 and SZ10 forms for District Court only)
retention of raw data (s
63 - SZ13 and SZ14 forms for District Court or High Court)
retention of raw data excerpts (s
63 - SZ16 and SZ17 forms for District Court or High Court).
Note: Forms SZ13, SZ14, SZ16 and SZ17 are available on Police Forms > Search and Surveil ance > Seizure. Forms SZ3 to
SZ10 are not available on Police Forms, because they involve a civil process and must comply with the format requirements
set in the
District Court Rules 2014. Contact your District Legal Adviser for assistance with preparing the documentation. The
District Legal Adviser may also seek assistance from Legal Services at PNHQ. These applications must be lodged by a lawyer
who holds a current practising certificate as a barrister or as a barrister and solicitor.
Description of seized or produced things on documentation
Ensure the description of seized or produced things on the application and order align with the description of those seized or
produced things entered on the POL268, Property record sheet inventory.
Copies of documentation
Three copies of both the application and order relating to seized and/or produced things must be prepared for presenting to
the Judge.
Application
Copies of the application are required for these purposes:
original retained by Court
duplicate and triplicate for Police file (may attach to POL268, Property record sheet inventory).
Order
Copies of the order are required for these purposes:
original (signed by Judge) for Police file
duplicate copy retained by Court
triplicate copy for Police (to retain with POL268 - Property record sheet inventory).
As a matter of courtesy and good practice you should notify persons with an interest in a seized or produced thing either
personal y or by phone, fax, email or letter of the existence of the Court order and what the order directs.
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Part 12 - Procedures applying to seized and produced things
Note: Notifying persons with an interest in a seized or produced thing does
not apply to ex parte (involving one party to an
application and no respondents) applications for an order (e.g. application for order for postponement of notice and inventory
requirements under section
134).
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Part 12 - Procedures applying to seized and produced things
Person requesting copies of application or order relating to seized
and/or produced things
There is no requirement under the Act for Police to provide a copy of the application or an order to a person with an interest in
seized and/or produced things. Any request for copies of the application or order from the person should be dealt with as
fol ows:
If criminal proceedings have
not been commenced against the person requesting a copy of the application, then respond
to the request under the
Official Information Act 1982. There may be conclusive reasons for refusing the disclosure of the
application or for redacting of parts of the application under section
6 of the Official Information Act 1982. Good reasons
for Police to withhold official information include the likelihood of:
prejudicing the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to
a fair trial; or
endangering the safety of any person.
Note: In some circumstances the request wil be dealt with under th
e Privacy Act 2020, but similar considerations about
disclosure of the applications may apply.
If criminal proceedings have commenced against the person requesting a copy of the application, then respond to the
request under the
Criminal Disclosure Act 2008.
For further guidance, see:
the section,
'Applications for access to or release of things' in this chapter for information about:
the person with an interest making application to Police for access to and release of things
Police providing a decision regarding unconditional or conditional access to or release of things in writing
the person with an interest making application to District Court for access to or release of things
these chapters,
Privacy and official information and
Criminal disclosure for information about disclosure.
Printed on : 08/06/2021
Printed from :
https://tenone.police.govt.nz/pi/part-12-procedures-applying-seized-and-produced-things
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Part 13 - Privilege and immunities under the Act
Table of Contents
Table of Contents
2
Policy statement and principles
3
What
3
Why
3
How
3
Overview
4
Purpose of this chapter
4
Related information
4
References to "the Act"
4
What are recognised privileges?
5
Recognised privileges
5
Identifying privilege
5
Lawyers' trust account records not privileged
5
Appropriate court
6
Effect of privilege claim on search warrant and other search powers
7
What to include in an application for a search warrant or production/examination order
8
Duty of candour
8
Consider what you may find executing the warrant or other order
8
Paragraphs to include in application when privilege may be an issue
8
Conditions
10
Covert warrants
10
Procedures when executing search warrants and other search powers where privilege claim anticipate 1
d 1
Overview
11
Planning before the search
11
Reasonable efforts to contact the person
11
Contacting lawyers, ministers of religion, medical practitioners and clinical psychologists
11
Contacting other privilege holders (including journalists) in searches involving privileged material.
11
Treatment of legally privileged documents viewed during a search
12
Reasonable opportunity to claim privilege
12
Dealing with material not covered by privilege claim
12
When you cannot contact the person or their representative
12
If the person or their representative refuses or neglects to identify privileged material
12
Secure and copy the material for which privilege is claimed
13
Carrying out searches where privileged material is discovered during a search
14
Determination of privilege claim
15
Initiating a privilege claim
15
Application by the person claiming the privilege
15
Police application
15
Dishonest purpose or enabling an offence relevant to privilege determination
15
Admission of evidence when privilege claims are upheld
15
Privilege in the context of production and examination orders
17
Privilege against self‐incrimination
17
Privilege against self‐incrimination applies in production and examination context
17
Privilege claim and application to court
17
Determination by court
17
Other privileges in production and examination context
17
Privilege claim and application to court
17
Determination by court
17
Immunities under the Act
18
Immunities when obtaining or executing orders and warrants
18
Immunities when exercising entry, search and surveillance powers
18
Crown immunity
18
Part 13 - Privilege and immunities under the Act
Policy statement and principles
What
The
Evidence Act 2006 sets out various privileges. Section
136 of the Search and Surveillance Act 2012 recognises those privileges that
are subject to the rules and obligations in subpart
5 of Part 4 of the Act. The Act restricts the privilege against self‐incrimination to
examination orders and production orders.
This part of the
‘Search’ chapter details procedures for Police employees to comply with the Act and enable a claim of privilege to be
made and determined in respect of material that is the subject of search, examination or production powers.
Why
Compliance with the guidance and procedures in this chapter when carrying out search, examination and production powers will
ensure privilege is appropriately preserved and mitigate against future challenges to the search.
How
When carrying out search, examination and production powers, Police will:
‑ before applying for a search warrant, or a production/examination order, consider whether recognised privileges might apply,
e.g.:
‑ is it likely that the premises may contain correspondence from a lawyer?
‑ is the person whose premises are being searched someone whose communications may be privileged, e.g. a lawyer,
doctor, journalist or minister of religion?
‑ if privilege may be an issue when executing a warrant or order include information in the application to:
‑ identify the privilege that may apply and the nature of the potentially privileged information/communications
‑ explain what will be done to prevent the search of privileged material, to facilitate a claim of privilege and to protect
material seized.
‑
before conducting a search when privilege may apply, give the person or their representative a reasonable opportunity to claim
privilege, or make an interim claim if they need further instructions. Usually this involves the person being present (and their
presence is a statutory requirement in some cases).
‑ if there are reasonable grounds to believe that any thing discovered
during a search may be privileged, give the person
reasonable opportunity to claim privilege and if unable to identify or contact that person:
‑ apply to a Judge to determine the status of the thing; and
‑ do anything necessary to enable the court to make that determination.
‑ if receiving or expecting to receive a claim of privilege secure the thing subject to privilege but not continue to search it and
should not undertake any other investigations in reliance on it unless no claim of privilege is made, or a claim is withdrawn, or
the search is in accordance with the directions of the court determining the claim of privilege.
Note: It is the Court’s function to independently determine whether a privilege claim is valid.
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Part 13 - Privilege and immunities under the Act
Overview
Purpose of this chapter
This chapter details:
‑ what are recognised as privileges under section
136 of the Search and Surveillance Act 2012 and when they apply
‑ what to include in an application for a search warrant or production/examination order when privilege may apply
‑ procedures when executing search warrants and other search powers where privilege claim anticipated
‑ what to do if privileged material is unexpectedly discovered during a search
‑ privileges applying in the context of production and examination orders
‑ your immunities from civil or criminal liability when obtaining or executing orders and warrants or exercising entry and search
powers under the Act.
Related information
See also these Police Manual chapters:
‑
Search chapter:
‑
Carrying out search powers with or without a warrant
‑
Production orders
‑
Examination orders
‑
Surveillance chapter:
‑
Surveillance device warrants
References to "the Act"
All statutory references in this chapter are to the
Search and Surveillance Act 2012 unless otherwise stated.
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Part 13 - Privilege and immunities under the Act
What are recognised privileges?
Recognised privileges
These privileges are recognised under section
136 of the Search and Surveillance Act 2012.
Description
Evidence
Applicability to power exercised
Appropriate court for
Act 2006
determining claims of
(section)
privilege
(s
136(3))
Legal professional privilege, to the extent that it
53(5)
Search, examination and production
District Court
forms part of the general law
Privilege for communication with legal advisers
54
Search, examination and production
District Court
Privilege for preparatory material to proceedings
56
Search, examination and production
District Court
Privilege for settlement negotiations or mediation
57
Search, examination and production
District Court
Privilege for communication with ministers of religion
58
Search, examination and production
District Court
Privilege in criminal proceedings for information
59
Search, examination and production
District Court
obtained by medical practitioners and clinical
psychologists
Privilege against self‐incrimination, but only to the
60
Examination and production only
District Court
extent provided in section
138 of the Search and
Surveillance Act
Note: This privilege does
not apply to
thing(s) seized under a search power
(s136(1)(g))
Privilege for informers
64
Search, examination and production
District Court
The rights conferred on a journalist to protect certain
68
Search, examination and production
High Court
sources
Identifying privilege
Before applying for a search warrant, a production order, or an examination order, (or undertaking a warrantless search), consider
whether any of the recognised privileges might reasonably apply in the circumstances. For example:
‑ is it likely that the premises may contain correspondence from a lawyer?
‑ is the person whose premises are being searched someone whose communications may be privileged, such as a lawyer, a
doctor, a journalist or a minister of religion?
Lawyers' trust account records not privileged
The privilege for communications with legal advisers (s
54 of the Evidence Act 2006) does not extend to books of account or accounting
records kept:
‑ by a solicitor in relation to any trust account money that is subject to section
112 of the Lawyers and Conveyancers Act 2006; or
‑ by a nominee company that:
‑ is subject to practice rules made by the Council of the New Zealand Law Society under section
96 of the Lawyers and
Conveyancers Act 2006; and
‑ is operated by a barrister and solicitor or an incorporated law firm as a nominee in respect of securities and documents of
title held for clients.
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That privilege does not prevent, limit or affect:
‑ the making of a production order, issuing of a search warrant, or exercise of any other search power in respect of those books of
account or accounting records, or
‑ the obligation to comply with that production order, search warrant, or other search power in respect of those books of account
or accounting records, or
‑ the admissibility, in a criminal proceeding for an offence described in the production order, search warrant or for an offence in
respect of which any other search power was exercised, of any evidence that relates to the contents of a document obtained
under the production order or search warrant, or as the result of the exercise of any other search power.
(s
137)
Appropriate court
The
appropriate court for the purposes of Subpart
5, Part 4 of the Act (Privilege and confidentiality) when privileged material has to be
delivered to the court; or an application is to be made to the court for determination of a privilege claim is:
‑ the High Court in any case that involves the applicability of the rights of journalists under sectio
n 68 of the Evidence Act 2006 to
protect sources
‑ in any other case, the District Court.
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Effect of privilege claim on search warrant and other search powers
A person who claims privilege in respect of anything that is seized or sought to be seized has the right to:
‑ prevent the search under the Act of any communication or information to which the privilege would apply if it were sought to be
disclosed in a proceeding, pending determination of the claim to privilege and later, if the claim is upheld
‑ require the return of a copy of, or access to, any such communication or information to the person if it is seized or secured by a
person exercising a search power pending determination of the claim to privilege.
(s
142)
Once privilege has been claimed, you cannot search the material that is the subject of that claim further and it is for a court to
determine the privilege claim.
Further details on how to manage a privilege claim follow, including guidance on how to provide a copy to the material (see, for
example,
Secure and copy the material for which privilege is claimed; Determination of privilege claim)
Note: A person cannot claim privilege against self‐incrimination for a thing seized under a search power. That privilege only applies
when an examination order or production order is being executed. (s
136(1)(g) and 138)
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What to include in an application for a search warrant or
production/examination order
Duty of candour
Applicants for search warrants and other orders made without notice owe the court a duty of candour. The issuing officer is entitled to
expect full and candid disclosure of all facts and circumstances relevant to whether the warrant or order should be issued, including
whether the material covered by the warrant or order may reasonably be anticipated to be the subject of a claim of privilege and, if so,
proposed processes for dealing with that.
The issuing officer needs to be satisfied that:
‑ Police are aware of the privilege issue; and
‑ there are appropriate procedures in place to facilitate any anticipated claim of privilege and to ensure protection of materials
seized.
Consider what you may find executing the warrant or other order
Think about what information/communications you may find while executing the warrant or other order, and whether any of the
information/communications may be subject to a claim of privilege. For example whether the premises being searched are occupied
by a person who is a lawyer, minister of religion, journalist or other person referred to in section
136 of the Search and Surveillance Act.
Note: Particular care is also required when seeking call associated data or the content of telecommunications where one of the parties
to those communications may have a claim of privilege. It is possible that some of this information may be privileged and the
organisation complying with the warrant or order may not be aware of that. As below, the Judge will need to be informed of the
potential for a claim of privilege and what processes will be followed to ensure that any privilege issues are appropriately addressed,
with particular reference to the relevant provisions of the Search and Surveillance Act. For example, for a production order seeking text
communications of a journalist from the telco, you will need to plan a process for sorting the data (without searching it) or perhaps
have an independent person conducting the sorting process, before the potentially privileged material is delivered to the court and tell
the court about that plan.
Paragraphs to include in application when privilege may be an issue
If you reasonably believe that privilege may be an issue, include paragraphs in the application addressing the following:
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StepAction
1
Identify privilege
Identify the privilege that may be an issue (preferably by reference to the relevant paragraph of section
136 of the Search and
Surveillance Act and any corresponding Evidence Act 2006 provision) and the potentially privileged information/communications
that may be discovered in the course of the search etc. For example:
‑ “J Bloggs is a minister of religion. As well as the evidence of fraud, I suspect we will find at her home, communications
between her and individuals made in confidence and for the purpose of the person obtaining from J Bloggs religious or
spiritual advice, benefit or comfort. I am aware that this material may be the subject of a claim of privilege under sections
136(1)(e) of the Search and Surveillance Act and section
58 of the Evidence Act 2006.”
2
Special requirements ‐ Lawyers
For warrants where you are wanting to seize communications held by a lawyer that are of a kind to which legal professional
privilege normally applies, you also need to satisfy the issuing officer that there is a prima facie case that the thing you want to
seize was made, or received, or compiled, or prepared‐
‑ for a dishonest purpose; or
‑ for the purpose of planning to commit or committing an offence. (s
102 ‐ Restrictions on issue of search warrant)
3
Special requirements ‐ Journalists
For warrants/orders involving journalists, the five general guidelines recorded in
Television New Zealand Ltd v Attorney General
[1995] 2 NZLR 641, at 647‐648 that affirmed the importance of media freedom and the correlative caution as regards media
warrants should also be referred to, namely:
‑ “…in a case where there is no suggestion that the media organisation has committed any offence and it has done no
more than record events which include the commission of offences by others, … the intrusive procedure of a search
warrant should not be used for trivial or truly minor cases …
‑ …as far as practicable, a warrant should not be granted or executed so as to impair the public dissemination of news. …
‑ …only in exceptional circumstances where it is truly essential in the interests of justice should a warrant be granted or
executed if there is a substantial risk that it will result in the “drying‐up” of confidential sources of information for the
media. …
‑ … a warrant should be executed considerately and so as to cause the least practicable disruption to the business of the
media organisation. …
‑ …the relative importance of the [material sought] for the purposes of a prosecution …”
4
Explain procedures to prevent search of privileged material and facilitate privilege claim
Explain:
‑ what procedure you will follow on execution to prevent the search of privileged material [see Procedures when carrying
out searches involving privileged material below]. For example:
‑ “ I anticipate that there may be privileged material on the computer that we expect to find. The computer will be
seized and cloned by a forensic expert assisting Police. The computer will be returned to J Bloggs and the forensic
clone delivered to the court. Neither the computer nor the clone will be searched until J Bloggs has an opportunity to
claim privilege.”
‑ what procedures will be taken to facilitate a claim of privilege and to ensure protection of materials seized. For example:
‑ “As required by
s144, after securing the scene, I will contact J Bloggs. I will arrange to search the property when J
Bloggs or her representative is present. Before commencing the search I will ask her whether she wants to claim
privilege or interim privilege in respect of any material that is covered by the warrant. If she claims privilege or
interim privilege in respect of any material, it will not be searched. Instead, it will be seized. She will be given an
opportunity to make a copy of the material for which she has claimed privilege and the privileged material will be
secured in an envelope or suitable container, and sealed with tape. The material will then be delivered to the District
Court Registrar at X Court to enable a claim of privilege to be determined by a Judge.”
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Before a warrant is obtained in respect of material that may reasonably be the subject of a privilege claim, it is recommended
that you obtain legal advice.
Conditions
Consider whether it would be appropriate to propose conditions that the issuing officer could impose on the warrant.
Note: The Search and Surveillance Act has specific requirements in relation to the procedures when executing search warrants that
Police must be aware of and ought to reflect in the application, particularly where it relates to searching the offices, mobile devices or
documents of lawyers and the professional material of ministers of religion, medical practitioners and clinical psychologists. See
‘Procedures when executing search warrants and other search powers where privilege claim anticipated’.
Covert warrants
If a covert warrant may involve privilege material, legal advice should be sought on the application and the procedure to be followed.
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Procedures when executing search warrants and other search powers where
privilege claim anticipated
Overview
When executing a search warrant or other search power involving privileged material, comply with any conditions specified in the
warrant or order, any processes you have set out in your application (see ‘What to include in an application for a search warrant or
production/examination order’) as well as the Search and Surveillance Act requirements to:
‑ give the person an opportunity to claim privilege (usually this will involve the person or their representative being present and
showing you what material is privileged)
‑ seize and secure (but not search) the material for which privilege is being claimed
‑ supply a copy for the person claiming privilege or give them access to the material
‑ deliver the material to the court to enable determination of the privilege claim.
Searchers should be familiar with the requirements of sections
142 to
147 of the Search and Surveillance Act.
Planning before the search
When planning execution of the warrant, consider how (after you have secured the scene and before you commence the search) you
will:
‑ make reasonable efforts to contact the person; and
‑ give them a reasonable opportunity to claim privilege.
These requirements will probably mean there is a time delay between securing the scene and commencing the search.
Reasonable efforts to contact the person
If the person is not already at the search location, make reasonable efforts to contact them and invite them to come to the search
location to point out where there is any privileged material, or to send a representative to do that on their behalf.
Contacting lawyers, ministers of religion, medical practitioners and clinical psychologists
For search warrants authorising search and seizure of materials held by lawyers, ministers of religion, medical practitioners or clinical
psychologists the search warrant must not be executed unless the lawyer, minister of religion, medical practitioner, or clinical
psychologist, or a representative of them is present (s
143(2) and s
144(2)).
If unable to contact the lawyer, minister of religion, medical practitioner, or clinical psychologist or their representative prior to
starting the search, you must instead contact:
‑ the New Zealand Law Society, in the case of lawyers, or
‑ the church or professional body to which the person belongs
and ask them to appoint a person to represent the interests of their clients, parishioners or patients in relation to the search (
s143(3)
and s
144(3)). Given this ability of the church or professional body to appoint someone, it is unlikely there will be an occasion when you
cannot contact someone who can claim privilege within a reasonable time if for some reason the lawyer, minister of religion, medical
practitioner or clinical psychologist cannot personally be there.
Contacting other privilege holders (including journalists) in searches involving privileged material.
For warranted or warrantless searches where you have reasonable grounds to believe that any thing discovered in the search may be
the subject of another type of privilege, you still need to provide any person (or their lawyer) who you believe may be able to claim a
privilege a reasonable opportunity to claim it (s
145). While the Act does not specifically require the person to be present, giving them
an opportunity to claim privilege will mean you will need to make reasonable attempts to get in contact with the person and ask them
to identify material they claim privilege for. The easiest way for them to do that will usually be for them to be present.
If you are unable to identify or contact a person who may be able to claim a privilege, or that person’s lawyer, within a reasonable
period then you can:
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‑ secure the thing (but not search it) and deliver it to the court ‐ see ‘Secure and copy the material for which privilege material is
claimed’ for an outline of section
146; and
‑ apply to a Judge for determination of the status of the thing.
Treatment of legally privileged documents viewed during a search
In conducting a search, material which attracts privilege must be treated with care so that the integrity of the privilege is upheld as far
as possible. The person entitled to claim privilege must be afforded the opportunity to do so. In
Bayliss v R [209] NZCA 141 upon seeing
documents were privileged, the investigator should have stopped reading immediately and quarantined them in order to preserve the
privilege.
Reasonable opportunity to claim privilege
Continue to preserve the scene while waiting for the person to arrive. Do not start to conduct the search or begin to look at material to
assess relevance.
When the person or their representative arrives, or if they want to deal with you over the telephone, give the person (or their
representative) a reasonable opportunity to claim privilege on behalf of the privilege holder or make an interim claim if unable to
contact their client, patient or parishioner.
What is a reasonable opportunity to claim privilege will depend on the circumstances. For example, if the person is away in another
New Zealand city at the time you secure the scene but when you contact them by telephone they indicate they intend to get the next
flight back so they can point the privileged material out to you later that day it would likely be reasonable to wait until they return.
Invite them to tell you what material they claim privilege over. For example, they might be able to describe where the material is (all
documents in a particular room or cabinet; all documents contained in particular files) or it might be more straight forward for them to
locate and assemble the material for you.
The person may claim privilege over
all documents and computer files that the search warrant entitles you to seize. They are entitled
to claim privilege in respect of any and all material if they believe there is a valid privilege claim and it is not Police’s role to assess
whether that claim has any merit or validity. The claim will be independently determined later by a court.
Dealing with material not covered by privilege claim
For material not included in the claim of privilege, you can search, assess for relevance, and seize in the usual way.
When you cannot contact the person or their representative
If you are unable to identify or contact a person who may be able to claim a privilege, or that person’s lawyer, within a reasonable
period then section
145 of the Act provides that, where you have reasonable grounds to believe any thing discovered in the search may
be the subject of a privilege recognised by the Act, you can:
‑ secure the thing (but not search it) and deliver it to the court ‐ see ‘Secure and copy the material for which privilege material is
claimed’ for an outline of section
146; and
‑ apply to a Judge for determination of the status of the thing.
In the absence of the person or their lawyer, in order to form reasonable grounds to believe that something you discover in the search
may be the subject of a privilege, you will need to start sifting through the material to make a preliminary assessment of whether any of
it may reasonably be privileged. Once you form the belief that the material may reasonably be privileged (for example, there is a folder
entitled “Legal advice”), then secure it but do not search that material further.
Note: Given the ability of the church or professional body to appoint someone to make the privilege claim, it is unlikely there will be an
occasion when you cannot contact someone who can claim privilege within a reasonable time if a lawyer, minister of religion, medical
practitioner or clinical psychologist cannot personally be there to claim privilege with respect to material held by them.
If the person or their representative refuses or neglects to identify privileged material
The person or their representative may refuse to say what material is or isn’t privileged or they may neglect to do so after being given a
reasonable opportunity (e.g., they haven’t kept promises to come to the search address in order to identify privileged material and
have stopped taking your calls).
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Section
145 of the Act provides that, where you have reasonable grounds to believe any thing discovered in the search may be the
subject of a privilege recognised by the Act, you can:
‑ secure the thing (but not search it) and deliver it to the court ‐ see section
146 below under 'Secure the material'; and
‑ apply to a Judge for determination of the status of the thing.
When the person has refused or neglected to make a privilege claim despite being given a reasonable opportunity to do so, in order to
form reasonable grounds to believe something you discover in the search may be the subject of a privilege, then you will need to start
sifting through the material to make a preliminary assessment of whether any of it may reasonably be privileged. Once you form the
belief that the material may reasonably be privileged (for example, there is a folder entitled “Legal advice” or a letter headed up
“Confidential settlement proposal”), then secure it but do not search that material further.
Secure and copy the material for which privilege is claimed
If you receive or expect to receive a claim of privilege and are unable to search a thing because of the privilege, you:
‑ may secure the thing (if the thing is intangible, e.g. computer data, do this by making a forensic copy) ‐
s146(a)(i) and (i ) ‐ but
must not search the thing secured, unless no claim of privilege is made, or a claim is withdrawn, or the search is in accordance
with the directions of the court determining the claim of privilege ‐
s146(c)
‑ must supply the person who may or does claim privilege with a copy of, or access to, the secured thing ‐
s146(b)
‑ may deliver the thing or a copy of it to the appropriate court to enable determination of the privilege claim‐
s146(a)(i i). You
should preserve the privilege and evidential integrity of the material, for example, by sealing it before delivering it to the court.
Complete a POL 268 inventory as soon as practicable ‐ preferably before leaving the premises but in any case not later than 7 days after
the seizure and record which items privilege has been claimed over.
Note: Where you are not able to list details of some materials seized because the privilege claim prevents you from searching (reading)
those documents, consider referring to the documents over which privilege is claimed as a group ‐ for example, “One eastlight folder
identified by XXX as containing privileged documents ‐ sealed”. Where possible, show this to the person or their representative who is
present and invite them to check the accuracy of the inventory. Leave the original POL 268 form with the lawyer, minister of religion,
medical practitioner, or clinical psychologist or other person claiming privilege or their representative.
If the person has claimed privilege for some items being seized:
‑ Supply the person with a copy of the material or make arrangements for them to receive a copy or have access to the material.
For example, the person could make a copy at the search site (if that is possible and the amount of material is reasonable). For
larger amounts of material, the copy may need to be made off site and copied in a manner than ensures the privilege is preserved
and the material is not being searched by Police. For example, an external provider might be engaged. Having a copy of or
access to the material enables the person to particularise their privilege claim (see ‘Determination of privilege claim’).
‑ Place the documents for which privilege is claimed in an envelope (in the person’s presence if possible); seal it; and deliver it as
soon as practicable to the appropriate court (High Court where privilege claim relates to protection of journalist sources; or the
District Court in other cases).
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Carrying out searches where privileged material is discovered during a search
Even if you don’t reasonably anticipate a privilege claim when planning for a search and before carrying out the search, you may still
unexpectedly come across material that could be privileged during a search.
If you are executing a search warrant or another search power and form reasonable grounds to believe that any thing you discover
during the search may be privileged material, then under section
145, you still need to provide any person who you believe may be able
to claim a privilege a reasonable opportunity to claim it. See ‘
Treatment of legally privileged documents viewed during a search’ and
Bayliss v R [209] NZCA 141.
If you are unable to identify or contact a person who may be able to claim a privilege, or that person’s lawyer, within a reasonable
period then you can:
‑ secure the thing (but not search it) and deliver it to the court ‐ see Secure and copy the material for which privilege is claimed;
and
‑ apply to a Judge for determination of the status of the thing.
Refer to these sections for more guidance:
‑ ‘Reasonable efforts to contact the person’
‑ Reasonable opportunity to claim privilege’
‑ ‘Secure and copy the material for which privilege is claimed’
‑ ‘Determination of privilege claim’.
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Determination of privilege claim
Initiating a privilege claim
Court determination of the privilege claim may be initiated by:
‑ the person claiming privilege; or
‑ Police.
Application by the person claiming the privilege
The person claiming the privilege may:
‑ provide Police with a particularised list of the things for which privilege is claimed, as soon as practicable after being:
‑ given the opportunity to claim privilege, or
‑ advised that a search is to be, is being, or has been conducted (
s147(a))
or
‑ if the thing/s cannot be adequately particularised, apply to a Judge of the appropriate court (with a copy of the material) for
directions (s
147(b))
They can then apply to the appropriate court for determination of their privilege claim. (
s142(b))
Police application
If a detailed list of things for which privilege is claimed is not forthcoming and the person has not made an application to the court for
determination of the privilege, then you may instigate an application to a Judge of the appropriate court for determination of the
privilege under section
146(a)(i i) by using:
‑ in the case of privilege arising from rights conferred on journalists to protect sources, Police Form PR4 ‐ Application for
determination of claim of privilege (Journalists ‐ High Court)’ form located in Police Forms > Search and Surveillance > Privilege.
Note this application is to be made to the High Court (s
136(3)(a))
‑ for other types of privilege claims, Police Form PR3 ‐ Application for determination of claim of privilege (District Court)’ form
located in Police Forms > Search and Surveillance > Privilege. Note this application is to be made to the District Court (s
136(3)(b))
If you secured potentially privileged material but were unable to identify a contact person who may be able to claim a privilege or their
lawyer (refer 'Contacting other privilege holders (including journalists) in searches involving privileged material' and section
145),
apply to the court for determination of the status of the thing using:
‑ Police Form PR2 (where the privilege may arise from rights conferred on journalists to protect sources (application is to the High
Court)
‑ for other types of privilege, Police Form PR1 (application is to the District Court).
Dishonest purpose or enabling an offence relevant to privilege determination
The court may determine that no privilege applies in respect of any communication or information if there is a prima facie case that
the communication of information is made or received, or compiled or prepared:
‑ for a dishonest purpose, or
‑ to enable or aid any person to commit or plan to commit what the person claiming the privilege knew, or ought reasonably to
have known, to be an offence.
Evidence of this nature will be relevant to the Judge’s determination of whether the claimed privilege applies.
(s
136 (2))
Admission of evidence when privilege claims are upheld
If a Judge upholds a claim to privilege, the communication or information to which the privilege applies is not admissible in any
proceedings arising from, or related to the:
‑ execution of the search warrant, or
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‑ exercise of another search or surveillance power, or
‑ carrying out of an examination or production order.
(s
148)
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Privilege in the context of production and examination orders
Privilege against self‐incrimination
Privilege against self‐incrimination applies in production and examination context
A production or an examination order does not affect the privilege against self‐incrimination that a person may have under section
60
of the Evidence Act 2006.
A person may assert the privilege against self‐incrimination as a ground for refusing to produce any document under a production
order or to answer any question under an examination order. Any assertion of a privilege against self‐incrimination must be based on
section 60.
Privilege claim and application to court
If a person refuses to produce any information or document under a production order or to answer any question under an examination
order on the ground that it is a privileged communication under section
60 of the Evidence Act 2006, the Commissioner or other
enforcement officer (which includes a constable) may apply to a District Court Judge for an order determining whether or not the claim
is valid.
Use Police Form POL PR5 'Application for determination of claim of privilege' form located in Police Forms > Search and Surveillance >
Privilege, when making an application.
Determination by court
When the court is determining the privilege claim, the person claiming privilege against self‐incrimination must offer sufficient
evidence to enable the judge to assess whether self‐incrimination is reasonably likely if the person produced the information or
document or answered the question.
Note: Section
63 of the Evidence Act 2006 does not apply to production or examination orders under the Act.
(s
138)
Other privileges in production and examination context
Privilege claim and application to court
Any privilege recognised under section 136 that could be asserted in criminal proceedings may also be asserted in respect of the
material covered by a production order or an examination order. If a person refuses to disclose information sought under a production
order or examination order on the grounds that it is privileged, the Commissioner or other enforcement officer (which includes a
constable) concerned may apply to a Judge of the appropriate court for an order determining whether or not the privilege claim is
valid.
Note: If the privilege claimed involves the rights of journalists to protect certain sources, then use the application form addressed to a
Judge of the High Court of New Zealand ‐ Police Form PR6. In all other privilege cases use Police Form PR5, the application form
addressed to the District Court Judge.
Determination by court
For the purpose of determining any application for privilege, the judge may require the information or document to be produced.
A judge must, on an application, disallow a privilege claim if they are satisfied that the claim to privilege would, under section
67(1) of
the Evidence Act 2006, be disallowed in a proceeding. Section
67(1) of the Evidence Act provides that a Judge must disallow a claim of
privilege if satisfied there is a prima facie case that the communication concerned was made or received or the information compiled or
prepared for a dishonest purposes or to enable or aid anyone to commit (or plan to commit) what the person claiming the privilege
knew (or reasonably should have known) to be an offence. Evidence of such matters is therefore relevant to the privilege
determination.
(s
139)
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Immunities under the Act
Immunities when obtaining or executing orders and warrants
You are immune from civil or criminal liability for any act done in good faith:
‑ to obtain:
‑ an examination order
‑ a production order
‑ a search warrant
‑ a surveillance device warrant
‑ a declaratory order, or
‑ other order referred to in the Act
‑ that is covered by a declaratory order
‑ in relation to the execution of all orders and warrants referred to in the Act, if the execution is carried out in a reasonable
manner.
(s
165)
Immunities when exercising entry, search and surveillance powers
You are immune from civil and criminal liability for any act done in good faith in order to exercise an entry, search, or a surveillance
power if you:
‑ exercise the power in a reasonable manner, and
‑ believe on reasonable grounds that the pre‐conditions for the exercise of that power have been satisfied.
Every person is immune from civil and criminal liability for any act done in good faith and in a reasonable manner in order to assist you
to exercise an entry, search, or a surveillance power, or in order to examine or analyse any thing that is seized.
Note: The onus is on the person asserting immunity in any civil proceeding to prove the facts necessary to establish the claim.
(s
166)
Crown immunity
Section
167 clarifies that if any person is immune from civil liability with obtaining or executing orders and warrants, exercising entry,
search and surveillance powers in respect of anything done or omitted to be done, then the Crown is also immune from civil liability in
tort in respect of that person's conduct.
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Part 14 - Reporting
Table of Contents
Table of Contents
2
Executive summary
3
Overview
4
Purpose of this chapter
4
Notifying the Commissioner (places, vehicles, things and facilities)
5
Summary of what must be notified
5
Statutory notification on the exercise of warrantless powers
5
Exceptions
5
Other matters must be notified to the Commissioner
5
Procedure for notifying the Commissioner
6
Warrantless power notifications
6
Delegations to receive search power notifications
6
Search warrant reports
8
Search warrant reports may be required by issuing officers
8
Content of search warrant reports
8
Procedure for preparing search warrant reports to issuing officers or Judges
8
Notifying when people are searched
9
When must you notify searches of people to the Commissioner?
9
Exceptions
9
Internal searches
9
Notification contents
9
Recording searches when Commissioner's notification not required
9
Rub down searches
9
Strip searches of people locked in Police custody
9
Strip searches when people not locked in Police custody
10
Declaratory orders
11
Applications must be notified to the Commissioner
11
Annual reporting of declaratory orders
11
Production and examination orders
12
No reporting or notification requirements for production orders
12
Examination order notifications and reports
12
Notifying the Commissioner
12
Examination order reports to Judges
12
Commissioner's annual reporting of search powers
13
Commissioner's Annual Report
13
Annual reporting of declaratory order applications
13
What is not required to be included in the Annual Report
13
Part 14 - Reporting
Executive summary
Key points to note in this chapter:
‑ In relation to searches of places, vehicles and things, the Commissioner must be notified whenever:
‑ a search warrant, or examination or declaratory order application is made
‑ a warrantless entry or search power is exercised (unless an
exception applies)
‑ a warrantless road block is exercised
‑ a drug search or seizure with or without warrant occurs (this includes drugs located or handed in)
‑ an arms search or seizure with or without warrant occurs
‑ a biosecurity search occurs
‑ searching for a child or young person to effect their removal under the Oranga Tamariki Act 1989.
‑ In relation to people, you must notify the Commissioner when a drugs or arms search or seizure with or without warrant occurs.
You must also notify when a person permits an internal examination under the Misuse of Drugs Act.
‑ You do not need to notify rub‐down searches associated with an arrest or detention under any enactment or when a person is
being locked up in custody ‐ but strip searches must be notified.
‑ A warrantless power notification report
must be:
‑ completed by the officer who exercised the search power, that is, the officer who physically initiated the search and
determined the legality of initiating the search
‑ submitted before the end of the shift in which the event occurred.
‑ If an issuing officer imposes a condition in a search warrant requiring a search warrant report, the applicant must provide it
within the specified period of time.
‑ Examination order reports must be provided to Judges within 1 month of the examination's completion
‑ There are no reporting or notification requirements for production orders.
‑ The Commissioner's Annual Report must include certain information relating to warrantless entry or search powers exercised
and applications for examination or declaratory orders
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Overview
Purpose of this chapter
This part of the 'Search' Police Manual chapter outlines the reporting requirements under the
Search and Surveillance Act 2012 and the
Commissioner's directions for internal notification on:
‑ the warrantless exercise of entry and search powers relating to places, vehicles or things
‑ the warrantless exercise of search powers in relation to people
‑ the seizure of drugs
‑ arms searches
‑ any application made for a search warrant (whether or not a warrant is issued, executed, or an issuing officer has required a
search warrant report)
‑
examination order applications and reports back to the judge making the order
‑
declaratory order applications.
This part of the 'Search' chapter also:
‑ describes
search warrant reports required by issuing officers and how they are completed
‑ outlines the Commissioner's obligations for the
annual reporting of search powers.
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Notifying the Commissioner (places, vehicles, things and facilities)
Summary of what must be notified
You must (because of a
statutory or
internal Police requirement) complete a search power notification in relation to search powers of
places, vehicles, things and facilities whenever:
‑ a search warrant, examination order, or declaratory order application is made
‑ a warrantless entry or search power is exercised (unless an
exception applies)
‑ a warrantless road block is exercised
‑ a drug search or seizure with or without warrant occurs (seizure here includes drugs located or handed in)
‑ an arms search or seizure with or without warrant occurs
‑ a biosecurity search
‑ searching for a child or young person to effect their removal under sections
39,
40 &
386 of the Oranga Tamariki Act 1989.
See also
Notifying when people are searched in this chapter.
Statutory notification on the exercise of warrantless powers
Under section
169 if you exercise a warrantless entry power, search power or surveillance power under Part
2 or
3 of the Act in relation
to places, vehicles, things or facilities:
you must...
by written report (notification) that...
notify the Commissioner of the exercise of the power as 'soon as
‑ contains a short summary of the circumstances
practicable' ‐
Note: Police policy requires this notification to be
surrounding the exercise of the power, and the reason(s)
completed no later than the end of shift.
why the power needed to be exercised
‑ states whether any evidential material was seized or
obtained as a result of the exercise of the power
‑ states whether any criminal proceedings have been
brought or are being considered as a consequence of the
seizure of that evidential material.
Exceptions
You are not required to notify to the Commissioner of:
‑ the exercise of any power of entry in relation to places or vehicles that does not also confer a power of search (e.g. warrantless
entry to prevent offence or respond to risk to life or safety (s
14))
‑ a search undertaken by consent.
(s
169(4))
Other matters must be notified to the Commissioner
Although not required under section 169 or any other enactment, the Commissioner also requires the notification of all:
‑ search warrant applications
‑ drug seizures (this includes drugs located or handed in)
‑ arms seizures
‑ warrantless road blocks.
The internal (rather than statutory) requirement to notify the Commissioner of search warrant applications, the seizure of drugs and
arms, and warrantless road blocks is to ensure:
‑
search warrant reports are coordinated nationally and provided to issuing officers in a consistent way within the statutory
timeframe
‑ data in relation to all search warrant applications, drug and arms seizures, and warrantless road blocks made under the Act are
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recorded for Police purposes.
Procedure for notifying the Commissioner
Follow these steps to notify the Commissioner.
Step Action
1
When required to complete a search power notification, access the relevant notification through:
‑ the Search and Surveillance System for search warrant applications; or
‑ On Duty; or
‑ the 'Create Notification' feature on the Microsoft Outlook Bulletin Board for all other notifications.
Note:
‑ Prompts and relevant drop down boxes will assist you complete the notification.
‑ See the
Search and Surveillance System User Guide for further guidance with completing your notification
2
Ensure the search power notification to the Commissioner is completed before the end of shift.
3
Submit the completed search power notification before the end of shift on the day the:
‑ warrant, examination order and declaratory order application is made,
or
‑ search power is exercised.
4
Print and retain a hard copy of the notification for your investigation file.
Note: Record on the notification or your file the time and date the notification was sent.
5
If the notification involves a search warrant application, update the notification on the day the warrant is executed.
Note:
The information provided in the notification is used to compile the Commissioner's Annual Report to Parliament.
Warrantless power notifications
When a warrantless search power notification is submitted, the system will send an e‐mail to the supervisor of the officer who created
the notification. Supervisors should review notification e‐mails to ensure that:
‑ the decision to invoke the power was appropriate
‑ the grounds and decisions are adequately recorded
‑ the staff member sought prior approval where required.
A warrantless power notification report
must be completed by the officer who exercised the search power, that is, the officer who
physically initiated the search and determined the legality of initiating the search. The purpose of a section
169 report is to provide a
safeguard and checking mechanism of the lawfulness of such warrantless searches. A copy of the section
169 report should be
included in any resultant file to comply with disclosure obligations.
Delegations to receive search power notifications
This table lists the Commissioner's delegations for receiving search power notifications and compiling information in relation to them.
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Notification
Manager delegated
‑ Drug searches or seizures including drugs located or handed in
National Criminal Investigations Group (Director: NCIG)
‑ Search warrant applications
‑ Warrantless entry or search powers exercised
‑ Warrantless road block powers exercise
‑ Arms searches
Director: Capability
‑ Biosecurity searches
‑ Examination order applications
Director: Financial Crime Group (Director: FCG)
‑ Declaratory order applications
Director: Legal Services
(Director: Legal)
‑ Child or young person's arrests, searches or removals
Manager: Youth
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Search warrant reports
Search warrant reports may be required by issuing officers
The issuing officer may impose a condition in the search warrant requiring a search warrant report within a specified period of time.
Under the Act if the warrant is issued to a constable, the Commissioner must provide a search warrant report within the specified
period. This function is designated to every constable who is the applicant for the search warrant. The applicant must prepare the
search warrant report on the Search and Surveillance system.
(s
103(3)(b) &
104(1))
Content of search warrant reports
The search warrant report must state whether:
‑ the warrant was executed
‑ the execution resulted in the seizure of evidential material, and, if so, whether that material was:
‑ specified in the warrant, or
‑ seized under section
123 (seizure of items in plain view), or
‑ some specified in the warrant and some seized under section
123 (items in plain view)
‑ any other powers exercised in conjunction with the execution of the warrant resulted in the seizure of evidential material
‑ any criminal proceedings have been brought, or are under consideration, relating to any evidential material seized.
Procedure for preparing search warrant reports to issuing officers or Judges
Follow these steps to prepare search warrant reports to issuing officers or Judges.
StepAction
1
Complete the search warrant report for an issuing officer or a Judge on the Search and Surveillance System.
Note:
‑ Prompts and relevant drop down boxes will assist you complete the notification.
‑ See the Search and Surveillance System User Guide (no longer in use) for further guidance with completing your search
warrant report.
2
Print the report for the manually sending to the issuing officer or Judge who requested the report.
3
Ensure the report is completed within the time period specified by the issuing officer or Judge and if not specified, then within 1
month of the warrant being executed or 1 month of the expiry period for an unexecuted warrant.
4
Print and retain a hard copy of the report for your investigation file.
Note: Record on the report or your file the time and date the report was sent.
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Notifying when people are searched
When must you notify searches of people to the Commissioner?
You must (because of a statutory or an internal Police requirement) complete a search power notification in relation to searching
people whenever:
‑ a warrantless search power of any person is exercised, unless an
exception applies
‑ a drug search or seizure with or without warrant occurs (seizure for the purposes of this notification includes drugs located or
handed in)
‑ an arms search or seizure with or without warrant occurs.
Follow the same procedures as for
notifying searches of places, vehicles, things and facilities to the Commissioner.
Note: Notifications must be made no later than the end of shift after the search power is exercised.
Exceptions
You do not have to notify the Commissioner of:
‑ a
rubdown search of a person under sections 85 or 88 undertaken in conjunction with their arrest or detention under any
enactment (examples include persons detained under section 128 of the Immigration Act 1987 or for testing alcohol impaired
drivers (EBA procedures) under the
Land Transport Act 1998) (note that strip searches under section 88 must be notified)
‑ any search of a person in lawful custody carried out under section 11 (search of people who are to be locked up in Police
custody) or under the
Corrections Act 2004
‑ a search undertaken by consent.
Internal searches
Every time you exercise a power under section
23 requiring a person under arrest for an offence against section
6 or
7 or
11 of the
Misuse of Drugs Act 1975 to permit a medical practitioner to conduct an internal examination of them, you must:
‑ advise the Commissioner by way of a search power notification no later than the end of shift after the search power has been
exercised
‑ record the search in the electronic custody module.
Notification contents
The notification to the Commissioner in relation to searches of people (search power notification) must:
‑ contain a short summary of the circumstances surrounding the exercise of the power, and the reason(s) the power needed to be
exercised
‑ state whether any evidential material was seized or obtained as a result of the exercise of the power
‑ state whether any criminal proceedings have been brought or are being considered as a consequence of the seizure of that
evidential material.
(s
169)
Recording searches when Commissioner's notification not required
Rub down searches
Although a notification to the Commissioner is not required for a person received into lawful Police custody, you must make an entry in
the electronic custody module confirming the rub‐down search.
Strip searches of people locked in Police custody
Follow these recording procedures when a strip search is conducted of people who are locked up in Police custody.
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Person responsible
must...
The person instigating record in the electronic custody module brief details of the:
the strip search. .
‑ fact that such a search was conducted
‑ justification for it
‑ people conducting the search
‑ supervisor authorising it.
Note: Strip searches in custody undertaken under s88 must be notified to the Commissioner.
The supervisor who
‑ confirm the authorisation in the electronic custody module (Emergency Communications Centre
authorised a strip
supervisors should send the person instigating the search an email to confirm their authorisation)
search. .
‑ consider whether in the circumstances a detailed report should be submitted by the instigating
person to the District Commander. For example:
‑ the demeanour and reactions of the person being searched
‑ a transgender or intersex person declining or refusing to state their preferred sex of searcher to
conduct the strip search and it is not apparent by their details or appearance.
Note: See
‘Searching people’ in the ‘Search’ chapter for information about when a strip search can be conducted
Strip searches when people not locked in Police custody
If you exercise a warrantless search power involving a strip search of a person
not locked up in Police custody, you must notify the
Commissioner by submitting a search power notification.
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Declaratory orders
Applications must be notified to the Commissioner
This table details notification requirements for declaratory orders to the Commissioner.
StepAction
1
You must complete a 'Declaratory order application notification' for every declaratory order application that is made.
2
Use the 'Declaratory order application notification' form located in Police Forms > Search and Surveillance > Declaratory Orders,
when making notification.
3
Print and retain a hard copy of the notification for your investigation file.
Note: Record on the notification or your file the time and date the notification was submitted.
4
Update the notification on the day the order is executed.
Annual reporting of declaratory orders
The information provided in the 'Declaratory order application notification' is used to compile the Commissioner's Annual Report to
Parliament. (See
Commissioner's annual reporting of search powers for requirements relating to declaratory orders).
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Production and examination orders
No reporting or notification requirements for production orders
There are no statutory requirements under the Search and Surveillance Act 2012 for:
‑ an issuing officer to require a report on the execution or otherwise of a production order
‑ a Police employee to notify the Commissioner on applications made for a production order, their execution or outcomes
‑ the Commissioner to include information pertaining to production order applications, their execution or outcomes in the
Annual Report to Parliament.
Examination order notifications and reports
Two regimes exist:
‑ All examination order applications must be notified to the Commissioner.
‑ A report must be sent to the judge making the order within 1 month after the completion of the examination or the expiry of the
order if no examination is carried out.
Notifying the Commissioner
This table details notification requirements to the Commissioner.
StepAction
1
You must complete an 'Examination order notification' on every examination order application made under the Search and
Surveillance Act 2012.
The information in these notifications is used to compile the Commissioner's Annual Report to Parliament.
2
Use the 'Examination order notification' form located in Police Forms > Search and Surveillance > Examination Orders, when
making notification.
3
Submit the notification when the examination order application has been made.
4
Print and retain a hard copy of the notification for your investigation file.
Note: Record on the notification or your file the time and date the notification was submitted.
5
Update the notification on the day the order is executed.
Examination order reports to Judges
The person conducting an examination authorised by an examination order must provide an Examination Order Report within 1
month of the examination's completion to the Judge who made the order, or, if that Judge is unable to act, to a judge of the same
court.
The report must contain this information:
‑ whether the examination resulted in obtaining evidential material
‑ whether any criminal proceedings have been brought or are under consideration as a result of evidential material obtained by
means of the examination
‑ any other information stated in the order as being required for inclusion in the Examination Order Report.
(s
43)
Note: If the examination is not carried out, provide the report to the Judge within 1 month of the order expiring.
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Commissioner's annual reporting of search powers
Commissioner's Annual Report
The Commissioner must include in every Annual Report prepared for the purposes of section
39 of the Public Finance Act 1989, the
number of:
‑ occasions when entry or search powers under Part
2 or
3 of the Act were exercised without a warrant
‑ applications for an examination order that were granted or refused
‑ persons charged in criminal proceedings where the collection of evidential material relevant to those proceedings was
significantly assisted by the exercise of a warrantless search or surveillance power or by an examination conducted under an
examination order.
(s
170)
Annual reporting of declaratory order applications
The Commissioner must also include this information about declaratory order applications in the Annual Report:
‑ the number of applications that were granted or refused
‑ the number of declaratory orders relating to the use of a device, technique, procedure or activity, and the number in respect of
each device, technique, procedure or activity
‑ in respect of each declaratory order made, a general description of the nature of the device, technique, procedure, or activity
covered by the order
‑ the number of persons charged in criminal proceedings where the collection of evidential material relevant to those
proceedings was significantly assisted by carrying out activities covered by a declaratory order made in the period covered by
the report.
(s
170 &
164)
What is not required to be included in the Annual Report
The Commissioner is not required to include in any Annual Report, information about:
‑ a rubdown search undertaken in conjunction with a person's arrest or detention
‑ any search of a person in lawful custody undertaken under section 11 (i.e. when locked up in Police custody) or under the
Corrections Act 2004
‑ the exercise of any power of entry that does not also confer a power of search (e.g. warrantless entry to prevent offence or
respond to risk to life or safety (
s14))
‑ a search undertaken by consent
‑ any prescribed search or surveillance, or search or surveillance of a prescribed kind, in any prescribed area or an area of a
prescribed kind.
(s
169(4))
There is no statutory requirement for the Commissioner to include in any Annual Report search information about:
‑ search warrant reports, search warrant applications or their execution
‑ searches of people that are not required to be notified to the Commissioner (e.g. rub‐down search of person incidental to their
arrest or detention(s169)).
Production orders are not required to be included in the annual report.
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production orders
Table of Contents
Table of Contents
2
Overview
4
Purpose of this chapter
4
Principles of cooperation
4
Potential risk of litigation
4
Conflicts of interest
5
Related information
5
References to "the Act"
5
Meaning of acronyms
5
Requests from government agencies with no power to apply for a search warrant or production order
7
Assisting government agencies without statutory search and production powers
7
Requests made to districts
7
Considering requests
7
Criteria to be met before provisionally approving requests
7
Decision and timeframes for reply
7
Urgent requests
7
Dispute resolution
8
Case Management
8
Request, decision and managing assignment
9
Decision outcomes
9
Process for submitting and considering requests
9
Guidance for completing the NIA entry
10
Managing the assignment
10
Documents required for all requests
11
Application, planning and risk assessment
13
Application process
13
Planning and risk assessment process
14
Related information
14
Minimise resource impact on Police
14
Executing search warrant and receiving produced documents
15
Executing search warrant
15
Executing production order
16
Procedures applying to seized or produced things
17
Introduction
17
Law enforcement agencies
17
Uncertain status of some agencies
17
O/C Exhibits
17
Evidential material that includes electronic data
18
Related information specific to O/C Exhibits
20
Assisting law enforcement agencies execute search powers
21
Law enforcement agencies with statutory search powers
21
Approval of requests for assistance
21
Roles and responsibilities during searches
21
Plain view seizures by police during agency searches
21
Transfer of things between law enforcement agencies
21
Criminal disclosure and requests for information
23
Responsibility for criminal disclosure
23
Requests for official and personal information
23
Managing media relating to agency requests for assistance
23
Releasing information about the agency's investigation
23
Releasing information about applications for and execution of search warrants
23
Related information
24
Appendix 1 ‐ Information required by Police for search warrant
25
Appendix 2 ‐ Information required by Police for production order
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Part 15 - Government agency requests for assistance with search warrants and production orders
Overview
Purpose of this chapter
This chapter details procedures for:
‑ requests from agencies having no power to apply for search warrants or production orders to have Police obtain either a search
warrant or production order
‑ assisting law enforcement agencies that can apply for search warrants to execute their search warrants.
Principles of cooperation
Agencies with investigative and prosecution functions, but no statutory search and production powers (e.g. Ministry of Social
Development) work closely with Police. The way in which Police and each agency works together is to be detailed in a schedule titled
‘Agency requests for assistance with search warrants and production orders’ to the Memorandum of Understanding between Police
and the agency concerned.
These guiding principles apply to the agency making the request and Police:
‑ The agency concerned has the lead for the investigation and prosecution of suspected breaches of legislation under their
responsibility and control
‑ If Police apply for a search warrant or production order, Police is the lead agency for:
‑ applying for and executing search warrants and production orders
‑ seizure of evidential material, receiving produced documents, custody and disposal of evidential material
‑ Police and the agency:
‑ will work cooperatively to ensure appropriate and authorised information is provided in a timely manner
‑ coordinate internal procedures to ensure efficient information flows
‑ will incur their own personnel costs, but when extensive hardware costs are incurred by Police (e.g. considerable number
of documents to be photocopied, electronic hardware associated with forensic copying etc.), then the agency will
reimburse Police for the agreed costs
‑ Police and the agency will actively seek to exchange information and research where such exchange is likely to inform the:
‑ investigation into suspected offences
‑ application and execution of search warrants
‑ application for production orders and receipt of produced documents
‑ management of seizure, production, custody and disposal of evidential material
‑ prosecution of suspects
‑ Police and the agency will ensure that the requirements of the:
‑
Privacy Act 2020 are met when exchanging personal information about individuals
‑
Search and Surveillance Act 2012 are complied with when applying for and executing search warrants and seizing
evidential material; applying for production orders and receiving produced documents; and custody and disposal of
evidential material
Potential risk of litigation
As with any power Police exercise, search and seizure powers must be exercised both lawfully and reasonably. A failure to take care in
this area not only jeopardises prosecutions by exclusion of evidence, it also exposes Police to significant civil liability. When another
agency is involved, particular care should be taken.
For example, in
Van Essen v A‐G [2013] NZAR 917 (HC), Police were required to pay damages to Mr Van Essen arising from a Police search
of his home on behalf of ACC. Among other things:
‑ Police did a poor job of drafting the search warrant applications which didn’t meet the minimum standards required. The Judge
observed that the almost rote adoption of affidavits drafted by ACC raised serious doubts about the independence of police in
the mind of an objective observer;
‑ Police failed to actively manage the actual and apparent conflict of interest by allowing the son‐in‐law of the ACC informant to
be the O/C preparing the application;
‑ Personal information and some information that was irrelevant to the alleged criminal activity was seized;
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‑ Police didn’t directly supervise a private investigator engaged by ACC who assisted with the search;
‑ Police improperly handed over seized items to a private investigator engaged by ACC and some of the seized items were lost or
unaccounted for.
Conflicts of interest
Police employees must avoid situations that might compromise, directly or indirectly, their impartiality or otherwise call into question
their ability to deal with an agency’s request for assistance with a search warrant or a production order in a fair and unbiased manner.
For example, where the employee is related to the investigator of an agency requesting assistance, or related to a person who is the
subject of the investigation.
The employee must inform their manager where any actual or perceived conflict of interest could arise and arrangements made for
another constable to be assigned.
Note: See the
Managing conflicts of interest chapter and the references to conflicts of interest in the
Code of Conduct.
Related information
See also these Search chapters:
‑
Part 2 ‐ Search warrants
‑
Part 5 ‐ Carrying out search powers with or without a warrant
‑
Part 9 ‐ Production orders
‑
Part 12 ‐ Procedures applying to seized and produced things
‑
Part 13 ‐ Privilege and immunities under the Act
‑
Part 14 ‐ Reporting
References to "the Act"
All statutory references in this chapter are to the
Search and Surveillance Act 2012 unless otherwise stated.
Meaning of acronyms
This table provides the meaning of acronyms used in this chapter.
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Acronym
Meaning
ACC
Accident Compensation Corporation
CIB
Criminal Investigation Branch
DFR
Digital First Responders are Districts' key contacts with the DFU.
DFU
Digital Forensic Unit
Director: NCIG
Director: National Criminal Investigations Group
DMCI
District Manager: Criminal Investigations
DFR
Digital First Responders ‐ these are Districts' key contacts with the DFU
FMC
File Management Centre
HTCG
High Tech Crime Group
MoH
Ministry of Health
MOU
Memorandum of Understanding
MSD
Ministry of Social Development
NIA
National Intelligence Application
NCIG
National Criminal Investigations Group
NLO
Nominated Liaison Officer (nominated by DMCI)
PROP
Police Register of Property
O/C
Officer in Charge
SW
Search warrant
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Requests from government agencies with no power to apply for a search
warrant or production order
Assisting government agencies without statutory search and production powers
Some agencies such as the Ministry of Social Development (MSD), Ministry of Health (MoH) and Accident Compensation Corporation
(ACC) have investigative functions, but cannot apply for their own search warrant or production order under the Act.
Requests made to districts
Requests from such agencies for Police to apply for and execute a search warrant or production order on their behalf, must be made to
either:
‑ the District Manager: Criminal Investigations (DMCI), or
‑ a nominated liaison officer (NLO) in each district.
It is expected that the agency will initially contact the DMCI or NLO to discuss the proposed search warrant or production order. That
will be followed by the agency sending an electronic search warrant or production order request. See documents required for all
requests.
Note: If the request is accepted, Police will apply for the search warrant or production order on behalf of the agency, command the
execution, and manage the seizure or production and custody of evidential material. If items are not transferred to the agency under
section
90 because it is not a "law enforcement agency", Police will be responsible for the ongoing custody and subsequent disposal of
those seized items.
Considering requests
Requests from other agencies for Police to make an application must be carefully considered.
Criteria to be met before provisionally approving requests
Before making a decision on the request, the DMCI or NLO must be satisfied these criteria are met:
‑ the application is justified and meets all legislative requirements
‑ the request and the making of an application are in accordance with any MOU, letter of agreement or other protocol that may
exist between that agency and Police
‑ the assessed risk of execution can be safely managed
‑ the workload involved with the application (making the application, the number of warrants or orders and their execution,
seizure, receipt of produced documents, storage, management and disposal of seized or produced items) is manageable with
other law enforcement commitments
‑ operational priorities impacting on Police at the time are not compromised.
Decision and timeframes for reply
The decision whether to provisionally approve, delay or decline the request must be given in writing as soon as practicable to the
agency making the request. Reason(s) must be given if the decision is to delay or decline the request. The decision and reply should not
exceed 14 days from receipt of initial request. Requests not actioned within 30 days and subject to further delay must be notified to the
agency investigator in writing.
Note: Provisional approval is always subject to the applicant (constable who signs the application) being satisfied that the grounds for
applying for the search warrant have been established.
Urgent requests
If the request from the agency is "urgent", there must be supporting information explaining why an application for and the execution
of a search warrant or production order is required urgently.
The process for urgent requests is the same as a standard request, except that the decision to provisionally approve, delay or decline
the request must be made and advised orally to the agency as soon as practicable and no later than 3 days from the receipt of the initial
request. Any decision advised orally to the agency must be followed‐up in writing immediately.
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Dispute resolution
Where a decision made at a district level remains in dispute between that district and the agency, the matter must be resolved as
agreed in a Memorandum of Understanding (MOU) and any accompanying schedule between Police and the agency. If no MOU or
Letter of Agreement exists, the dispute may be elevated by the district or agency to the Director: National Criminal Investigations
Group and the agency's equivalent level manager for resolution.
Case Management
The DMCI or NLO must ensure the initial request is:
‑ the trigger which leads to the creation of a NIA case
‑ correctly assigned in NIA:
‑ to the constable responsible for the application phase, or their supervisor if provisional approval is given, or
‑ if the decision is to delay or decline the request, to themselves while the case pre‐closure requirements before inactivation
or filing are met.
Refer "
Guidance for completing NIA entry".
See the
Case management chapter for more information about recording, managing, monitoring and disposal of NIA cases.
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Request, decision and managing assignment
(
Applies to searches being undertaken with government agencies that have no power to apply for search warrants or
production orders)
Decision outcomes
Term
Meaning
(Provisionally)
The application and execution will be arranged as soon as resources and logistics can be organised between the
Approved
agency and Police and subject to the officer who is assigned the matter being personally satisfied that the
application is appropriate.
Deferred
The request and application meet the legislative and protocol requirements, but cannot be accepted at this time
because of factors such as risk, resource availability, and/or other operational priorities and commitments. Agency
("Deferred,
to resubmit request after a given time period.
resubmit your
request after …")
Declined
The request and application fail to meet the legislative, protocol, risk, workload or operational criteria set by
Police.
Process for submitting and considering requests
Follow this process for considering requests from agencies to have Police apply for a search warrant or production order and managing
assignments.
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StepAction (DMCI or NLO unless otherwise stated)
1
The agency prepares the request and all accompanying documents. (See
required request details below).
2
The agency's investigator and the DMCI or NLO in the geographical area where the intended search warrant is to be executed or in
the case of multiple warrants or production order, the area from where the search or production coordination is to be managed,
meet to discuss:
‑ the request for Police assistance
‑ operational implications arising from the request
‑ cost recovery in relation to:
‑ resources to be used
‑ photographing evidential material, copying documents or creating forensic copies of electronic data.
3
Consider the request and determine whether the
criteria to be met before provisionally approving requests are satisfied.
4
Notify the agency's investigator of the
decision to provisionally approve, defer or decline. The decision and reply to:
‑ a standard request should be made in writing within 14 days of receipt of the request
‑ an urgent request should be made orally within 3 days of receipt of the request and followed‐up in writing.
If the
then:
decision
is:
Deferred a reason and an approximate time period for the deferral must be given, so the agency can review their
investigation/request, make changes if necessary, update the documentation as circumstances change during the
intervening period, and resubmit their request for further consideration after the deferral period expires.
Declined a reason must be provided to the agency for the decision.
5
Record the agency's request and application as an electronic NIA docloc case (follow the link to the guidance below).
Note: If the investigation is of a confidential nature, the identity of the person being investigated and the location or identity of
the place, vehicle or thing to be searched must not be disclosed on the file or recorded in NIA. It must be recorded by the DMCI or
NLO in a secure folder.
6
If the decision is:
the DMCI or NLO…
(provisionally)
assigns and submits the file to the O/C CIB Area where the application is to be made and the warrant
approved
executed
deferred
submits the file to the FMC for inactivating, so the file can be reactivated later if the status changes.
declined
submits the file to the FMC for filing.
Guidance for completing the NIA entry
When recording an agency's request and application as an electronic NIA docloc case:
‑ on the first Occurrence detail entry screen:
‑ Subject must = "Non‐enforcement agency SW request" or "Non‐enforcement agency PO request"
‑ Description must = "SW request from name of agency/location of agency" e.g. SW request from MSD Napier office, or "PO
request from name of agency/location of agency" e.g. PO request from MSD Napier office
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‑ Occurrence narrative ‐ ensure that the name and contact details of the agencies' investigator is entered in this field.
‑ Occurrence address = Police DHQ address where the request is received
‑ Inc/Off code = "2Z ‐ Other service request"
‑ Link to the NIA occurrence:
‑ the person/s, places, vehicles etc in the agency's investigation
‑ Attach documents received with the request to the NIA occurrence as appropriate.
Note: Subject, Description and Inc/Off code must be entered as above to assist with national monitoring/reporting on these types of
requests.
Managing the assignment
The O/C CIB Area is responsible for managing the assignment of the agency's request from receipt of approval given by the DMCI or
NLO.
Step Action (O/C CIB Area)
1
Arrange for a suitable officer(s) to:
‑ be assigned the request file
‑ conduct the planning and risk assessment
‑ apply for a search warrant or production order
‑ carry out the execution and reporting of the search warrant or production order
‑ take responsibility for the seizure, production, storage, custody and disposal of exhibits (evidential material).
Note: Be aware of actual or potential conflicts of interest before assigning the request file. See also:
‑ paragraph titled '
Conflicts of interest' in this chapter; and
‑ the ‘
Managing conflicts of interest’ chapter and information on conflicts of interest in the
Code of Conduct.
2
Ensure the above tasks are progressed in a timely manner.
Documents required for all requests
Requests for Police to apply for and execute search warrants or production orders on an agency's behalf must be emailed with the
following documents attached:
‑ draft agency affidavit that includes information under the following headings:
‑ the suspect(s)' identity (including date of birth if known)
‑ the alleged offending (including statutory references for each offence) and relevant information to support the allegation
‑ in relation to search warrants:
‑ the place, vehicle, thing or facility to be searched and its location
‑ a description of evidential material being searched for and why it is evidential material in relation to the alleged
offending
‑ facts or information indicating that the evidential material will be found in the proposed search
‑ in relation to production orders:
‑ the name and address of the person, (including body corporate or, unincorporated body) it is proposed should be
subject to production
‑ a description of the documents to be produced and why they are evidential material in relation to the alleged
offence
‑ facts or information that show the documents are in the possession of the person or under their control
‑ how it is proposed that the production occurs
‑ additional information in relation to both types of proposed applications:
‑ any information relevant to whether any material to be searched, seized or produced could be protected by any of
the privileges recognised by section
136 of the Act.
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‑ all other relevant information, whether helpful or not.
‑ covering report that includes information about:
‑ contact details of the agency and agency's investigator
‑ the facts established by the agency's investigation to date, without reference to any suspicions or beliefs held by the
investigator
‑ in relation to search warrants; profile of target address, vehicles, or things to be searched including occupiers or other persons
who may be present
‑ in relation to production orders; profile of target person, body corporate, or unincorporated body
‑ agency's pre‐search risk assessment of:
‑
threat ‐ includes intent, capability, opportunity and the physical environment
‑
exposure ‐ includes safety of agency staff, Police and the public and security of the operation
‑
necessity ‐ whether to act now, later or not at all
‑ any other documents containing information that may assist the application and execution phases.
Notes:
‑ The assigned constable must consider whether they can form the required levels of suspicion/belief from the information
supplied by the agency and other information obtained when considering the request (e.g. information from NIA, other Police
sources etc.). If any shortfalls cannot be rectified after discussion with the agency, the assigned constable must not make the
application. Assigned constable to advise supervisor and other agency that there is insufficient evidence to proceed with an
application to an issuing officer and therefore the request is
declined.
‑
See:
‑
Appendix 1 ‐ Information required by Police for search warrant for further guidance about what information is
required from the requesting agency
‑
Appendix 2 ‐ Information required by Police for production order for further guidance about what information is
required from the requesting agency.
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Application, planning and risk assessment
(Applies to government agencies that have no ability to apply for search warrants or production orders)
Application process
The assigned constables must follow these steps:
StepAction (assigned constable(s))
1
Discuss with the agency's investigator their investigation, search or production planning, resource impact, application for and
execution of the search warrant or production order, and subsequent seizure, production, storage, and disposal of evidential
material. Have them finalise and swear their draft affidavit.
Note: You must personally be satisfied that the grounds for the warrant or order application are justified and other legislative
requirements for the warrant or order are met. If you are not and the agency is unable to provide additional material to meet any
shortfalls, do not make the application. Instead, advise the agency's investigator and your supervisor.
2
Be aware of recognised privileges under section
136 of the Search and Surveillance Act 2012. Privileged communications or
information may not be searched. Consult with your legal adviser in the usual way over any privilege issues.
3
Complete an application for search warrant or production order in the usual way.
Note:
‑ remember the application is yours and it should contain all relevant information and your suspicions of an offence and
belief that evidential material is obtainable, not simply the suspicions of the agency's investigator
‑ do not simply cut and paste the entire contents of the agency's affidavit to your application for warrant or order. You can
of course cut and paste selected information that is relevant.
4
In relation to a search warrant application disclose:
‑ functions and responsibilities of constables and assistants from the agency relating to entry, containment, search,
seizure, and securing the scene and evidential material
‑ how the search warrant is to be executed
‑ if the search warrant is to be executed covertly, indicate this at paragraph 8 on the application and at the same time apply
to postpone the notice and inventory requirements. (Use form POL SZ1 for application and order in Police Forms> Search
and Surveillance> Seizure Forms).
Note: If to be executed covertly both the search warrant application and the postponement application must be made to a
District Court Judge.
5
Print the search warrant or production order application, attach the agency's finalised and sworn affidavit as an annex and apply
to an issuing officer.
Note:
‑ The applicant must be a constable and the warrant or order made out to every constable.
‑ The agency's investigator should be contactable when the application is lodged, so you can contact them about any
queries raised by the issuing officer about the investigation.
6
See these parts of the Search chapter relevant to applying for and the issuing of search warrants and production orders:
‑
Part 2 ‐ Search warrants
‑
Part 9 ‐ Production orders.
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Planning and risk assessment process
Assigned constables must plan the search or production and take into account:
‑
In relation to both search warrant and production order planning decide/consider:
‑ whether a search warrant or production order should be sought for use in the given case
‑ a
community impact assessment to:
‑ avoid compromising or undermining wider community support, confidence and reassurance, and
‑ eliminate or minimise the adverse impact on vulnerable people, community and interest groups
‑ assistant(s), case information and any equipment required from investigative agency to assist with planning and
conducting the search or production
‑ appropriate timing with executing the search warrant or receiving produced documents
‑ operational and human resources required
‑ any Police interest in the same target that may involve dual investigation.
‑
In relation to search planning:
‑
prepare the ‘
Planned Action Risk Assessment and CARD Prompt’. See
‘Risk assessment when planning searches’ in ‘Search
Part 5 ‐ Carrying out search powers with or without warrants’ for risk assessment procedures when planning searches
‑ consider tactical approach regarding entry (announced/unannounced), use of force, identification requirements,
detaining people at the scene, securing scene, search method, seizing and securing evidential material, notice and
inventory requirements).
Note: There must be at least one investigator from the requesting agency present during the search.
Related information
See also:
‑ 'About production orders' in
Part 9 ‐ Production orders
‑ '
Procedure for planning searches’ in
Part 5 ‐ Carrying out search powers with or without a warrant
‑
Community Impact Assessments (CIAs) for information about completing a community impact assessment.
Minimise resource impact on Police
When planning the application for and execution of the warrants or orders for other agency investigations, and the storage, custody,
management and disposal of evidential material, you must minimise the resource impact on Police. Where practicable, the agency's
resources must be used (under Police supervision) ahead of Police resources. For example:
‑ use agency staff as assistants to assist with the search, rather than deploying constables for this function
‑ ensure sufficient agency staff assist so that the search is completed more quickly and enables the early release of Police
resources.
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Executing search warrant and receiving produced documents
(Applies to government agencies that do not have the ability to apply for a search warrant or production order)
Executing search warrant
The assigned officer exercising the search power must follow these steps:
StepAction
1
Request the agency investigator and any other person from the agency to assist with undertaking the search.
2
Hold a combined briefing for agency staff and police before executing the search warrant.
Notes:
‑ Under the Act Police are responsible for the execution of the warrant and subsequent seizure, custody and disposal of
evidential material
‑ The agency retains responsibility for the ongoing investigation (interviews etc.) and any subsequent prosecution.
3
Execute search warrant at a time agreed with the requesting agency.
4
Ensure statutory obligations under sections
131 and
133 are met by following standard Police procedures for:
‑ entry, announcement and identification (before or on initial entry)
‑ giving notice and providing an inventory after search or seizure.
‑ See Part 5 ‐
Carrying out search powers with or without warrants in the Police Manual.
5
Use the agency staff as assistants under section
113. In that capacity, they are subject to the control of the person in charge of
the search and may:
‑ enter and search the place, vehicle or thing specified in the warrant
‑ seize specified evidential material
‑ while under direction of the assigned officer exercising the search power, use force in respect of property that is
reasonable in the circumstances to enter and break open or access any area.
Note: The assigned officer exercising the power must accompany any assistant on the first occasion when the assistant enters the
place, vehicle or other thing to be searched and provide supervision as is reasonable in the circumstances (s
113).
6
Any person found or who arrives at the place, or stops at, or enters, or tries to enter or get into or onto the vehicle being searched
may:
‑ be detained by police for the purposes of determining their connection with the object of the search while the search is
being carried out (s
118)
‑ be searched by a constable who has reasonable grounds to believe that the specified evidential material is on that person
(s
119).
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StepAction
7
Ensure that all activity undertaken during the search is reasonable and can withstand judicial scrutiny. For example, if offences
other than those being investigated by the agency and specified in the warrant are discovered, use your discretion when deciding
whether or not to exercise other search powers, e.g. seizure of items in plain view (s
123) during the agency's search and to initiate
a separate Police investigation.
Do not:
‑ use the agency's search to circumvent the rules or obligations required for Police searches under the Search and
Surveillance Act 2012
‑ extend Police enforcement practices to the point where the activity may be considered as being unreasonable.
8
If a plain view seizure is undertaken by Police during the search under the warrant (i.e. outside of the specified scope of the
warrant) you must:
‑ appoint a separate O/C Exhibits if more than one Police officer is present
‑ notify the occupier, owner or person present of the reason for the seizure and your authority for exercising the seizure
power
‑ make it clear to that occupier, owner or person present that a separate Police investigation is underway as a result of the
plain view seizure.
9
Update the search and surveillance system with the outcome of executed search warrant and of any warrantless search powers
exercised during the search (e.g. plain view seizure).
10 Submit a search warrant report if required by issuing officer.
11 Debrief the execution of the search warrant with the agency, with a particular focus towards lessons learned for future search
warrant operations.
Note: Provide feedback to the District Manager Criminal Investig ations about any issues identified at the debrief. Issues of
national significance must be notified to the Director: National Criminal Investigations Group.
Note: Be aware of conflicts of interest of Police staff and agency staff assisting before executing the search warrant. See the Managing
conflicts of interest chapter and references to conflicts of interest in the Code of Conduct.
Executing production order
The assigned officer exercising the production power must follow these steps:
StepAction
1
See
'Executing production orders' in Part 9 ‐ Production orders and follow the guidance for execution.
2
Debrief the execution of the production order with the agency, with a particular focus towards lessons learned for future
production order operations.
Note: Provide feedback to the District Manager Criminal Investigations about any issues identified at the debrief. Issues of
national significance must be notified to the Director: National Criminal Investigations Group.
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Procedures applying to seized or produced things
(Applies to searches being undertaken with government agencies that do not have the ability to apply for a search warrant or
production order)
Introduction
The Act imposes obligations on Police in relation to things seized or produced, including in relation to custody (
s150), retention and
return (ss
150 &
153), and disposal (ss
149,
160 &
161,
163). In addition, Police have to deal with privilege claims (ss
142 ‐
147),
applications for access or release (ss
156 ‐
159), or disputes over ownership (s
154).
If an item that has been seized or produced is transferred to a law enforcement agency or officer engaged by that agency, those
obligations must then be carried out by the agency or officer the items were transferred to (s90).
The position is different if seized or produced items are transferred to an agency that is
not a law enforcement agency. If seized or
produced items were to be transferred to an agency that is not a law enforcement agency, Police would still be subject to the same
obligations in respect of those items. For this reason, original exhibits will remain with Police and only copies will be provided to the
other agency for investigative purposes.
Law enforcement agencies
A “law enforcement agency” is defined by the Act as a department of State, Crown entity, local authority, or other body that employs or
engages enforcement officers as part of its functions.
An “enforcement officer” is a constable or any person authorised by an enactment specified in column 2 of the Act’s
Schedule, or by
any other enactment that expressly applies any provision in Part
4 of the Act, to exercise a power of entry, search, inspection,
examination, or seizure.
An example of a law enforcement agency is Customs which employs Customs officers who have a number of powers listed in the
Schedule.
An example of an agency that is not a law enforcement agency is ACC.
Uncertain status of some agencies
These section 3 definitions of “law enforcement agency” and “enforcement officer” raise doubt whether MSD and MoH, both agencies
with investigative and prosecutorial functions, are law enforcement agencies. While those agencies might have enforcement officers,
they are enforcement officers for unrelated purposes. For example, Medical Officers of Health appointed under the Health Act 1956
have a variety of special enforcement powers that do not appear to extend to making application for and executing search warrants for
matters that Police might be asked to seek a search warrant for.
Until the legislation is amended or a court judgement clarifies the narrow definitions in the Act, those agencies will not be treated as
law enforcement agencies when they request assistance with search warrants and production orders. The practice will be that Police
will carry out the functions of seizure, production, forensic copying in the case of electronic data, custody, storage and disposal of
seized things.
O/C Exhibits
The O/C Exhibits must follow these steps when seizing or receiving produced evidential material for non‐law enforcement agencies:
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StepAction
1
Liaise with the agency’s investigator to establish:
‑ contact point
‑ ongoing progress of investigation
‑ when seized or produced things should be disposed of.
2
Record what was seized or produced (inventory of items) in the Police Register of Property (PROP). See the ‘Exhibit and property
management’ chapter for procedures for handling and managing exhibits coming into Police possession.
If a substantial number of items are seized or produced, use an assistant from the agency to assist with labelling, PROP recording
and subsequent securing of exhibits into Police custody.
3
In the case of executed search warrants:
‑ See ‘Procedure when exhibit is received’ in the part ‘Receiving property and exhibits’ of the ‘Exhibit and property
management’ chapter
‑ Prepare ‘2Z’ file with reference to PROP and exhibits
‑ If required, apply to the District Court to further postpone notice and inventory requirements, using POL SZ2 (includes
application and order) located on Police Forms. (s
135)
4
Receive claims of privilege in relation to any thing seized or produced and inform the agency of the claim.
Apply to the court for determination of the claim using the appropriate application for determination of status or claim of
privilege under section
145 or
146 liaising with the agency. (Forms located in Police Forms POL PR1, PR2, PR3 and PR4)
5
Secure and retain custody of seized or produced evidential material (exhibits).
See also procedures for
evidential material that includes electronic data below.
6
With the assistance of the agency, review the evidential material seized or produced and supply copies of documents and
photographs of evidential material that will enable the agency to continue their investigation, decide the outcome and if
required, prepare their prosecution case.
Keep a record of all copies provided to whom and why by following the POL SZ19 (form) request process (see steps 5 and 6 in the
table below).
The original evidential material including forensic copies of electronic data must remain with Police.
7
Organise expert examination of retained evidential material on behalf of the agency if required, e.g.:
‑ document examination for handwriting etc.
‑ fingerprint examination
‑ electronic searches and forensic copying data (see
evidential material that includes electronic data below).
8
Ensure inventory of items, receipts, storage, chain of custody and disposal are fully documented.
Note: The O/C Exhibits will be required as a witness for the agency’s prosecution.
9
Communicate with and consider advice from the agency’s investigator if any application for access to or release of seized or
produced thing(s) is made.
Note: Police are responsible for dealing with the application and corresponding with the applicant, not the agency.
10 If required, apply for extensions of time for holding thing(s) seized or produced and directions as to ownership or holding of
seized things.
11 Instigate PROP record and “2Z” file closure when final disposal of seized or produced thing(s) has been effected.
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Evidential material that includes electronic data
In addition to following the steps outlined in the table under
O/C Exhibits, follow these steps if the warrant or order applies to
evidential material that includes electronic data.
StepAction
1
See the ‘Searching for and seizing computer material’ in the
‘Carrying out search powers with or without warrants’ Search
chapter for information about:
‑ what computer material can be searched for and seized under the Act
‑ requirements when searching computers with or without a warrant
‑ procedures for remote access searches
‑ the principles that must be applied to all data evidence gathering.
Note: All remote access search warrant applications and searches must be forwarded to the Police Digital Forensic Unit (DFU)
within the
High Tech Crime Group at PNHQ. Specialist knowledge with remote access searches in this process is required to
ensure national and international laws are observed.
2
Use the digital first responder (DFR) from your district as an assistant to identify and search for the electronic data. The DFR may
provide an onsite (search warrant) or station (search warrant or production order) preview (if achievable) with the agency’s
investigator and preserve electronic evidence.
3
The DFR may arrange an achievable preview (to view and determine what is to be copied into a master and working copy) of
electronic data by the agency’s investigator to:
‑ copy only data believed to be evidential material of the suspected offence for which the warrant was issued:
‑ at the scene, or
‑ at station, or
‑ seize (under search warrant) the electronic device for submitting to the DFU to have electronic data copied.
4
If the DFR arranges a preview and forensic copying of electronic data either at the scene or at the station, then the master copy
and working copy(s) of electronic data are to be sent to the O/C Exhibits for:
‑ storage
‑ responding to any requests (POL SZ19, see steps 5 and 6 below) for a working copy from the requesting agency
‑ evidential purposes
‑ subsequent disposal.
5
Requesting agency must prepare original and two copies, and sign Police form ‘Request to transfer things from Police to other
agencies’ (POL SZ19) for working copies of electronic evidence. (POL SZ19 located in Police Forms> Search and Surveillance>
Seizure Forms)
6
O/C Exhibits:
‑ ensures the form is correctly completed
‑ checks those conditions listed in POL SZ19, and those that are not:
‑ applicable, identified for deletion
‑ shown on the form, but in the circumstances are required to be added under paragraph 4
‑ signs the original and two copies of the POL SZ19 with the decision:
‑ ‘approved’ ‐ (arrange secure delivery of working copy to requesting agency)
‑ ‘returned’ (must outline what needs to be amended and/or conditions acceptable to Police in writing)
‑ ‘declined’ (must outline the reasons for declining the request in writing).
Note: Original signed POL SZ19 to file, one copy to property record sheet exhibit records and a second copy returned to the
requesting agency advising the decision of the request.
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7
If the DFR or O/C Exhibits seizes an electronic device for forensic copying by the DFU, then follow the steps in the Preservation
and recovery of electronic evidence chapter for locating, securing, packaging and submitting electronic evidence from:
‑ stand‐alone computers
‑ networked or business computers
‑ cell phones
‑ other electronic devices
‑ non‐electronic devices.
Note: Using the DFR will ensure the procedures outlined in the
Preservation and recovery of electronic evidence chapter are
satisfied.
8
Send the electronic devices (e.g. computer systems, data storage facilities, USB sticks, I‐pads, smart phones) after being suitably
packaged to the DFU at Auckland, Wellington or Dunedin for forensic copying evidential material.
Note: Ensure a copy of the search warrant and contact details of the DFR, O/C Exhibits and agency’s investigator are forwarded
with the electronic device to the DFU.
9
Upon receipt of the electronic devices, an employee at the DFU may contact the O/C Exhibits or DFR to arrange a preview (if
achievable) of electronic data contained in the electronic device with the agency’s investigator. The preview is to:
‑ be conducted in a private viewing room at the DFU to determine what is evidential material
‑ determine what is to be copied (note, only data believed to be evidential material of the suspected offence for which the
warrant or order was issued is to be copied).
10 DFU supervisor to ensure the master and working forensic copies of the electronic data is sent to the O/C Exhibits for:
‑ storage
‑ responding to any requests (POL SZ19, see step 6) for a working copy from the requesting agency
‑ evidential purposes
‑ subsequent disposal.
Related information specific to O/C Exhibits
For more detailed procedures:
‑ applying to seized things, see
Part 12 ‐ Procedures applying to seized and produced things
‑ when searches involve privileged material, see
Part 13 ‐ Privilege and immunities under the Act.
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Assisting law enforcement agencies execute search powers
(
Applies to searches and transfer of things being undertaken with law enforcement agencies that HAVE statutory search
powers)
Law enforcement agencies with statutory search powers
Law enforcement agencies other than Police have statutory powers under various Acts permitting their enforcement officers to apply
for and execute search warrants or to exercise warrantless search powers.
These agencies are responsible for providing the personnel and resources required for searches. However, where there is reasonable
concern for the safety of those undertaking the search, or Police have a common interest in the process, you may be called on to assist.
Do so only if operational requirements permit unless the search provision expressly requires a Police presence.
Approval of requests for assistance
A copy of the application for a search warrant and the actual signed search warrant must be attached to requests for Police assistance
with searches.
The request must be considered and approved by a CIB supervisor of or above the position level of sergeant.
Before approving requests to assist with the execution of a search warrant, the supervisor must be satisfied that:
‑
the form and content of the warrant meets the requirements of section
103 (e.g. the warrant is signed and has not expired)
‑
risks associated with executing the search warrant have been assessed and measures necessary to mitigate the risk of harm to
police and others identified. See
Risk assessment when planning searches in “Part 5 ‐ Carrying out search powers with or without
warrants”.
Roles and responsibilities during searches
If the assessment reveals no risk with executing the warrant, the agency seeking assistance will take the lead with executing the search.
Your primary role will be to maintain a presence and prevent any breach of the peace.
Should the assessment reveal a risk and unarmed tactical groups, AOS or STG be required to enter, secure and contain the scene for
the search to be safely conducted, these tasks must be commanded by Police. When the search scene is secured and contained, the
agency will take charge of the search and seizure elements.
The search warrants will have been issued under an enactment other than section
6 of the Search and Surveillance Act 2012, so police
assisting the agency must familiarise themselves with
‑ the search powers that exist under that other enactment, and
‑ the limitations of search powers that may be specified in column 4 of the
Schedule to the Search and Surveillance Act 2012 or
the empowering enactment itself.
Plain view seizures by police during agency searches
If you undertake a plain view seizure, ensure:
‑ a constable is appointed as O/C Exhibits, being separate to the requesting agency’s appointment
‑ notify the occupier, owner or person present of the nature of the search power being exercised and the authority for it
‑ make it clear to that occupier, owner or person present that a separate Police investigation is underway as a result of the plain
view seizure.
Transfer of things between law enforcement agencies
Things seized or produced to Police may be transferred to another
law enforcement agency. Use the ‘Transfer of things between law
enforcement agencies’ form POL SZ18 found in Police Forms> Search and Surveillance> Seizure Forms.
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Notes:
‑ The obligations under
Part 4 of the Search and Surveillance Act 2012 are transferred to the law enforcement agency after the
transfer of the thing is carried out (s90).
‑ You may set conditions of the transfer on the POL SZ18.
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Criminal disclosure and requests for information
Responsibility for criminal disclosure
The requesting agency is responsible for criminal disclosure under the
Criminal Disclosure Act 2008 during criminal proceedings
brought by the agency.
Requests for official and personal information
Responding to requests for official information under the Official Information Act 1982 and personal information under the Privacy Act
2020 is the responsibility of:
when the requested information relates to:
Police
‑ an application for a search warrant or production order made by Police
‑ the briefing and execution of the search warrant or production order conducted by Police
‑ the debrief of the Police execution of the search warrant or production order
‑ the security and custody of seized or produced evidential material.
Requesting
‑ an application for a search warrant made by the agency
agency
‑ the briefing and execution of the search warrant, if led by the agency (limited to the execution, but does not
include any investigation instigated by Police or any incident requiring a Police response during the execution)
‑ the debrief, if the agency led the execution of the search warrant
‑ the security and custody of seized evidential material by the agency
‑ agency's investigation
‑ agency's prosecution.
Managing media relating to agency requests for assistance
Releasing information about the agency's investigation
Enquiries from the media for information about the agency's investigation must be directed to that lead agency for reply.
Police employees must not comment on the agency's investigation, nor on matters that are sub‐judice.
Releasing information about applications for and execution of search warrants
This table identifies the lead agency for responding to media requests for information in joint Police and agency operations.
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Releasing
information to
the media
about…
is the responsibility of:
applications for
Police‐ when the application is signed by a constable
search warrants
or production
Requesting agency‐ when the application is signed by a law enforcement officer from that requesting agency
orders
execution of
Police ‐
search warrants when a request has been made for police assistance to execute the warrant involving 1 or more of these activities:
‑ the application is signed by a constable
‑ the place, vehicle or thing to be searched requires securing by police before the search can start (limited
solely to securing and containing the search scene, when application is signed by requesting agency')
‑ police presence is solely to prevent a breach of the peace, but an incident occurs involving police
intervention (limited solely to the incident requiring police response when the application is signed by the
requesting agency's investigator)
‑ police instigating separate search powers from that authorised in the warrant and commencing a criminal
investigation
Requesting agency‐
when a request has been made for police assistance to execute the warrant, and the search warrant application is
signed by a law enforcement officer from that requesting agency, in which case, the agency will deal with the search
of the place, vehicle or thing, except for that portion of the execution involving Police, which may have been, for
example:
‑ being required to secure and contain the search scene
‑ being present to prevent any breach of the peace and intervening to keep the peace
‑ instigating separate search powers from that authorised in the warrant and commencing a criminal
investigation.
Note: Never comment to the media before consulting with the agency. The same principle is expected to apply with the requesting
agency.
Related information
For further guidance about the media, see:
‑
Dealing with the media
‑
Releasing information to the media
For further information about requests for official and personal information or about criminal disclosure, see these chapters in the
Police Manual:
‑
Privacy and official information
‑
Criminal disclosure
24/26
Part 15 - Government agency requests for assistance with search warrants and production orders
Appendix 1 ‐ Information required by Police for search warrant
Download the information to be included in the
draft agency affidavit to be provided to Police with request to apply for search
warrant:
‑
Draft agency affidavit for search warrants (1).doc
62 KB
25/26
Part 15 - Government agency requests for assistance with search warrants and production orders
Appendix 2 ‐ Information required by Police for production order
Download the information to be included in a
draft agency affidavit to be provided to Police with a request to apply for
production order.
‑
Draft agency affidavits for production orders (1).doc
55 KB
26/26
Part 16 - Property damage incurred during searches or
exercise of statutory powers
Table of Contents
Table of Contents
2
Overview
3
Introduction
3
Background
3
Statement of principle
3
Background
3
Application
3
Immunity
3
Related information
3
Execution of search warrant or other statutory power
4
General principle
4
Damage caused to rental properties
4
Damage to vehicles not being used by the owner
4
Mistakes when search warrants or powers are executed
4
Warrantless entry in emergencies
5
Entry to prevent offence or respond to risk to life or safety
5
Claims for compensation
6
Employees should not incur expenditure or commit to compensation
6
If practicable photograph scene before and after search
6
Procedure when claims arise
6
Assisting owners to claim compensation
6
Payment of claims for compensation
7
Payment is made at District Commander's/National Manager's discretion
7
Making damaged premises secure
8
Actions to avoid incurring liability for damages
8
When police engage contractors to do repair work
8
Circumstances when it may be necessary for Police to incur expenditure
8
Part 16 - Property damage incurred during searches or exercise of statutory powers
Overview
Introduction
This chapter provides guidance on the approach that should be adopted when damage is caused by Police during the
execution of
search warrants or statutory powers, or as a consequence of
warrantless entry in emergencies where Police
employees’ actions could give rise to a claim against Police. It includes guidance on what should be done to make damaged
premises secure without incurring Police liability for additional costs.
Background
Occasional y the Police execution of search warrants or other statutory powers results in damage to property. This is usual y
as a result of the need to force entry to a privately owned building or space.
Such damage may result in claims being made against Police for the cost of repairs to the building, or for loss suffered as a
result of the damage, for example, if premises are left unoccupied and insecure.
It is important that decisions around such claims are made in a consistent and principled way.
Statement of principle
The method of entry and the manner which the search is conducted must be reasonable in al the circumstances, e.g. if the
door is unlocked there is no justification in breaking it down. In cases where unjustified damage is caused in the execution of a
search warrant or statutory power, compensation may be available. If damage caused is unreasonable in the circumstances it
cannot be justified.
Such claims wil be considered by the District Commander or National Manager on a case by case basis.
Background
Occasional y the execution of search warrants or use of other statutory powers results in damage to property, usual y as a
result of forced entry to a privately-owned building or space.
Such damage may result in claims being made against Police for the cost of building repairs, or for loss suffered as a result of
the damage, for example, if premises are left unoccupied and insecure and for example a burglary occurs.
It is important that Police responses to such claims are consistent and principled.
Application
This chapter applies to any situation where damage is caused to property or loss is suffered as a result of the execution of a
search warrant or use of some other statutory power.
The chapter is intended as a guide to employees. It does not prescribe the criteria by which claims wil be determined.
Immunity
To be immune from civil liability, Police employees need to conduct searches in a reasonable manner. (
s165)
Related information
Further guidance on searches and financial delegations is available in these documents:
Cabinet Office Circular
CO(18)2 – Proposals with Financial Implications and Financial Authorities for information about
departments seeking approval of proposals with financial implications such as expenses for compensation claims and ex
gratia expenses
Financial delegations chapter for information about the framework of financial delegated authority and financial
restrictions within Police
Insurances chapter for information about general/public liability insurance
Search chapter for information about entry, search and seizure powers.
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Part 16 - Property damage incurred during searches or exercise of statutory powers
Execution of search warrant or other statutory power
This topic provides guidance on the approach that should general y be applied to the consideration of claims for property
damage resulting from the execution of search warrants and use of other statutory powers.
General principle
Compensation wil seldom be paid where access to a property to be searched is not possible without significant force, e.g. a
heavily fortified gang pad that cannot be entered, except by forcing doors in. In such a case use of force and resulting property
damage is necessary and reasonable. Any claims for property damage are consequential on a case by case basis.
Damage caused to rental properties
Landlords and homeowners who have boarders general y carry the risk of damage to their properties as a result of Police
actions responding to a tenant’s activities.
General y, the landlord or homeowner should mitigate against such risks by taking a bond or deposit and with appropriate
insurance cover.
Police should refer the landlord or homeowner to their insurer or the Tenancy Tribunal.
Damage to vehicles not being used by the owner
As for damage in rental properties
above, a vehicle owner general y carries the risk associated with the vehicle’s use. Police
may damage a vehicle in order to rescue an occupant. If damage was necessary to achieve the purpose, compensation wil
not be paid. The vehicle owner should be referred to their insurer.
Mistakes when search warrants or powers are executed
In cases where a mistake is made in the execution of a search warrant or statutory power, for example where a search warrant
is executed at a wrong address, then the default position is that compensation wil be available in respect of any claim.
Such claims wil be considered by the District Commander or National Manager on a case by case basis.
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Part 16 - Property damage incurred during searches or exercise of statutory powers
Warrantless entry in emergencies
Entry to prevent offence or respond to risk to life or safety
Under section
14 of the Search and Surveil ance Act 2012 -
If you have reasonable grounds to…
you may...
suspect, in relation to a place or vehicle:
enter the place or vehicle without a
warrant,
and
an offence is being, or is about to be committed, that would be likely to
take any action you have reasonable
cause injury to any person, or serious damage to or serious loss of, any
grounds to believe is necessary to:
property,
or
prevent the offending from being
there is risk to the life or safety of any person that requires an emergency
committed or continuing, or
response
avert the emergency.
Note:
‘take any action’ means take any
action that is reasonable in the
circumstances.
Compensation wil seldom be paid for any damage incurred by a constable forcing entry under section
14. The responsibility
for the repairs lies with the owner or occupier. This is because damage arising is necessary and reasonable in the
circumstances. In many cases the repair costs wil be met by insurance cover.
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Part 16 - Property damage incurred during searches or exercise of statutory powers
Claims for compensation
Employees should not incur expenditure or commit to compensation
Police employees must not agree to expenditure on behalf of Police to rectify damage caused to any property in the execution
of a search warrant or statutory power, as this may pre-empt the relevant District Commander’s or National Manager’s decision
as to the payment of compensation.
Police employees should not give any indication or undertaking on behalf of Police to an owner or occupier as to the payment
of compensation for costs incurred or loss suffered. Any such statement by a Police employee may provide a basis for a
successful future legal claim by the owner or occupier. The decision whether to pay such compensation is for the District
Commander or National Manager.
If practicable photograph scene before and after search
Unless it is impracticable, al search scenes should be photographed before the search is undertaken and afterwards. This wil
assist with settling many disputes when Police claim the damage or mess was there beforehand and the complainant says
otherwise. Should damage occur, then document the damage for future reference.
Procedure when claims arise
Where a claim arises, it should be directed by the officer in charge of the incident concerned to the District Commander or
National Manager for consideration.
Al claims forwarded to the District Commander or National Manager should be accompanied by documentation from the
officer in charge detailing:
the circumstances in which the search warrant or statutory power was executed
background information
the grounds for Police action
the damage caused
the outcome of the search warrant or statutory power being executed
the owner of the property and the occupier or user of the property at the relevant time
the nature and basis of the claim as stated by the owner of the property
costs incurred in rectifying the damage together with evidence of the same, and
any steps taken by Police or the owner to prevent further loss or damage.
Assisting owners to claim compensation
Whilst it is not anticipated that employees wil solicit claims for compensation from property owners, officers in charge should
assist owners in putting their claim forward for consideration if they lack the ability to do so and in the circumstances the
damage caused is unreasonable. (See Execution of search warrant or other statutory power and Warrantless entry in
emergencies in this chapter).
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Part 16 - Property damage incurred during searches or exercise of statutory powers
Payment of claims for compensation
Payment is made at District Commander's/National Manager's discretion
Reimbursement of costs and the payment of claims are made at the discretion of the relevant District Commander or National
Manager in accordance with financial delegations and other guidelines and requirements.
The payment of claims must be made where applicable in accordance with:
national policy, for example Police Manual chapters:
Financial delegations for information about the framework of financial delegated authority and financial restrictions
within Police
Insurance for information about general/public liability insurance
any Police legal advice
any Police public liability insurance policy.
Refer to Cabinet Office Circular CO(18)2 – Proposals with Financial Implications and Financial Authorities for information
about departments seeking approval of proposals with financial implications:
expenses for compensation or damages for settlement of claims
ex gratia expenses made in respect of claims that are not actionable at law, but for which there exists a moral obligation
and payment should be made.
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Part 16 - Property damage incurred during searches or exercise of statutory powers
Making damaged premises secure
Actions to avoid incurring liability for damages
Premises should not be left unoccupied and insecure after a forced entry, as liability for further loss may arise, e.g. if the
contents are stolen from the address. Officers in charge should make every attempt to prevent such loss by ensuring the
property is made secure without incurring a liability for costs on behalf of Police. This wil mean:
liaising with the owner or occupier to secure their own property. If necessary and practicable, offer to wait for a specified
time for the owner or occupier, or an agent, to arrive to do this, or
at the occupier’s or owner’s request, engaging a contractor to make the premises secure on the understanding that the
occupier or owner wil bear the cost, or
attending staff effecting a temporary repair where feasible, e.g. by boarding up a window.
When police engage contractors to do repair work
Employees should be aware that if Police engage contractors to make repairs, then Police should expect to pay the cost of
repairs.
If you facilitate making premises secure for property owners, it must be established directly with the owner that they agree to
pay for the cost of repairs before engaging a contractor. The contractor must be made aware that the owner is responsible for
paying the invoice for repairs to secure the property.
Circumstances when it may be necessary for Police to incur expenditure
In rare cases where there is a significant risk associated with leaving premises unoccupied and insecure, al reasonable efforts
to contact the owner or occupier should be made to obtain their agreement to cover costs of repairs. If no other solution can be
found, then it may be necessary for Police to incur liability for the cost of the repair by cal ing a tradesperson such as a glazier
or locksmith. In this situation, the minimum work necessary to secure the premises should be carried out, in consultation with
your supervisor.
Where practicable, you should obtain verbal authorisation from the District Commander through the Area Commander, or the
relevant National Manager before any liability is incurred.
However, such an approach should not be fol owed where the owner or occupier who stands to suffer further loss has refused
to make the premises secure themselves.
Printed on : 08/06/2021
Printed from :
https://tenone.police.govt.nz/pi/part-16-property-damage-incurred-during-searches-or-exercise-statutory-powers
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Surveil ance introduction
link to page 304 link to page 304 link to page 304 link to page 305 link to page 306
Table of Contents
Table of Contents
2
Policy statement and principles
4
What
4
Why
4
How
4
Overview
5
Parts of the Surveil ance chapter
5
Health and safety duties
5
Related information
5
References to the “Act”
5
The scope of the surveillance regime
6
Surveillance without a device
6
Types of device
6
Single regime
6
The law enforcement focus of the regime
6
Surveillance with or without trespass
6
Trespass surveil ance defined
6
Surveillance with or without warrant
6
Preventing offences during surveillance
7
Reasonable grounds to "suspect" or "believe"
8
Use of the terms "suspect" or "belief" under the Act
8
The distinction between "suspicion" and "belief"
8
Evidential material
9
Offences
10
Surveil ance introduction
The content of this chapter must not be disseminated external to Police without prior approval from the National
Manager: Criminal Investigations Group.
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Surveil ance introduction
Policy statement and principles
What
Surveil ance may be carried out with or without the use of a surveillance device.
The
Search and Surveillance Act 2012 regulates only surveillance activities undertaken by means of a device. Surveillance not
involving the use of a device is not governed by the Act (that is, it is undertaken through observing or listening without aids
other than spectacles, contact lenses and hearing aids that restore normal sight or hearing).
The use of surveil ance devices must comply with the powers, rules and obligations of the Act to safeguard against unjustified
intrusions on ‘reasonable expectations of privacy’, a right that is given expression in secti
on 21 of the New Zealand Bil of
Rights Act 1990.
Why
The use of electronic interception devices, tracking devices and visual surveillance devices under the surveillance device
regime of the Act enables Police to use these devices to investigate crime, target and catch offenders.
How
To meet its objectives and obligations when carrying out surveil ance with a device, Police will:
balance the complimentary values of law enforcement and human rights
be mindful of unjustified intrusions on ‘reasonable expectations of privacy’, under secti
on 21 of the New Zealand Bil of
Rights Act 1990
avoid carrying out surveil ance with a device without a warrant to obtain evidential material where there is an opportunity
to obtain a warrant (any evidential material obtained as a result of the surveil ance may be found to be inadmissible)
before obtaining a surveillance device warrant or use the emergency warrantless surveillance power, ensure there are
reasonable grounds to believe that the surveil ance wil obtain “evidential material”
apply
TENR operational threat assessment before placing sur
veilance devices operationally
comply with the reporting requirements involving surveil ance devices under the Act.
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Surveil ance introduction
Overview
Parts of the Surveillance chapter
The
'Surveillance' chapter is comprised of these parts:
Surveil ance introduction
Surveil ance squad
Categories of surveillance with a device
Surveil ance device warrants
Retention and destruction of surveil ance data and documents
Surveil ance by radar and from aircraft, drones etc.
Surveillance reporting
Privilege and immunities involving surveillance.
Health and safety duties
The expectation of the Commissioner and t
he Health and Safety at Work Act 2015 is that employees carrying out surveil ance
with a device will take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of
themselves or others, and comply as far as they are reasonably able to with any reasonable instruction that is given to adhere
with the Act and its regulations.
A key enabler is the application of theTENR-Operational threat assessment in the workplace. See also ‘Health, safety and
wellbeing’ for keeping our communities safe, and ensuring our people are safe and feel safe.
Related information
See:
t
he ‘Electronic interception’ chapter for guidance about the use of electronic interception devices
the
‘Search’ chapter for guidance on searches, search powers, declaratory orders, production orders and immunities
under the Act.
References to the “Act”
References to “the Act” or to sections of an Act in this chapter are to t
heSearch and Surveil ance Act 2012 unless otherwise
stated.
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Surveil ance introduction
The scope of the surveil ance regime
Surveillance without a device
The Search and Surveillance Act 2012 regulates only surveillance activities undertaken by means of a device. Surveillance not
involving the use of a device is not governed by the Act (that is, it is undertaken through observing or listening without aids
other than spectacles, contact lenses and hearing aids that restore normal sight or hearing). This means that surveillance:
without a device cannot be authorised by a warrant
wil be unlawful if it involves a trespass (that is, an unauthorised entry onto private land or the handling of private property)
wil be lawful and able to be undertaken without restriction (including general intel igence gathering) if it does not involve a
trespass and in the circumstances it is reasonable (as required by section
21 of the Bil of Rights Act.)
Note: There is nothing to preclude getting a search warrant to trespass on a place in order to conduct surveillance
without a
device. Flying over property does not constitute a trespass and this includes the use of drones and model aircraft. See
'Surveillance by radar and from aircraft, drones etc' in this chapter for further instructions.
Types of device
The regime in the Act regulates the use of three types of devices, all defined fairly broadly:
an interception device
a tracking device
a visual surveillance device.
(s3)
Single regime
The Act brings together the use of all three types of devices within a single warrant regime. The criteria, procedures and
application and warrant forms are the same regardless of the device.
As a result, it is possible to make a single application for one warrant to use more than one type of device.
The law enforcement focus of the regime
The focus of the Act is the use of technology to investigate offences, and its purpose is to monitor compliance with the law and
the investigation and prosecution of offences in a manner that is consistent with human rights values. It follows that the existing
law does not inhibit the use of technology for purposes other than obtaining evidential material of an offence (e.g. the location
of missing persons) and that, provided no trespass is involved, any such use is likely to be lawful.
Surveillance with or without trespass
Remember:
If no surveillance device is used to carry out your surveillance and no trespass is involved, then neither a warrant nor a
warrantless surveil ance power is needed for your surveil ance activity.
If no surveillance device is used to carry out your surveillance and trespass is involved, then a search warrant is
required.
Trespass surveil ance defined
Trespass surveil ance means surveillance that involves trespass to land or trespass to goods.
(s3)
The term is defined for the purposes of secti
on 45 of the Act. A trespass requires an entry onto or interference with private
property such as land, vehicles or goods without the express or implied authority of the owner.
Surveillance with or without warrant
If you carry out surveillance with a device, conduct a search, or seize or obtain evidential material without a warrant where you
had an opportunity to obtain a warrant, evidential material obtained as a result of the search, surveil ance or seizure may be
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Surveil ance introduction
found to be inadmissible. See
R v Laugalis (1993) and
R v Williams [2007].
Preventing offences during surveil ance
It is not uncommon during surveillance to become aware of either an intent to commit a crime or to witness a crime unfolding
that involves injury to another person. In these circumstances, the constable conducting the surveillance must decide whether
or not to interfere in the activities of the offenders to prevent the crime from being committed or to reduce the harm caused by
the offending. This could, of course, jeopardise the surveil ance operation, or if the decision is made not to interfere and allow
the offence to be committed, risk injury or perhaps death to a victim.
All constables swear an oath to prevent offences against the peace (secti
on22 of the Policing Act 2008). There will always be
the expectation that Police wil intervene to prevent injury or death.
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Surveil ance introduction
Reasonable grounds to "suspect" or "believe"
Use of the terms "suspect" or "belief" under the Act
Where powers under the Act relate to evidential material, the thresholds that must generally be met before the powers may be
exercised are that there are "reasonable grounds to suspect" that the offence has been, is being or will be committed and
"reasonable grounds to believe" that the evidential material wil be found in or on the place, vehicle, thing or person. However,
in relation to firearms, knives, offensive weapons and disabling substances, there need only be "reasonable grounds to
suspect" that they wil be found.
The distinction between "suspicion" and "belief"
The distinction between the two lies in the strength of the conclusion reached, with belief requiring a higher threshold than
suspicion. In
R v Sanders [1994] 3 NZLR 450, (1994) 12 CRNZ 12 (CA) an
d R v Williams [2007] NZCA 52, [2007] 3 NZLR 207,
(2007) 23 CRNZ 1 at [213], the Court concluded that for the threshold for belief to be met, the judicial officer issuing a warrant
had to be satisfied that the state of affairs alleged by the applicant actual y exists. That does not mean proof of the state of
affairs is required; there must be an objective and credible basis for thinking a search will turn up the items identified in the
warrant:
Warner v R [2011] NZCA 258 at [21]. There must be more than surmise or suspicion that something is inherently
likely:
R v Laugalis (1993) 10 CRNZ 350, 1 HRNZ 466 (CA).
In contrast, reasonable grounds to suspect requires more than idle speculation, but need not amount to more than an
apprehension with some evidential basis that the state of affairs may exist: R v Sanders (above); Seven Seas Publishing Pty
Ltd v Sullivan [1968] NZLR 663 (SC).
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Surveil ance introduction
Evidential material
Before you can obtain a surveillance device warrant or use the emergency warrantless surveillance power, you must have
reasonable grounds to believe that the surveil ance wil obtain "evidential material".
In the Search and Surveil ance Act, "evidential material" in relation to an offence or a suspected offence is defined in secti
on3
as:
"evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence."
In the context of search warrants, "evidence" has always had a broad meaning and covers a range of material that might not
necessarily be used as evidence in any criminal prosecution for the suspected offence. For example, the Law Commission
noted that, in respect of the scope of the equivalent Canadian provision, the Supreme Court of Canada in
Canadian Oxy
Chemicals Ltd v Canada (Attorney General) [1999] 1 SCR 743 said:
"On a plain reading, the phrase "evidence with respect to the commission of an offence" is a broad statement, encompassing
all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and
ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties
involved, and their potential culpability fal s within the scope of the warrant."
The threshold that has been applied in relation to search warrants under the Summary Proceedings Act will continue to be
applicable to search warrants and surveil ance device warrants under the
Search and Surveil ance Act 2012.
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Surveil ance introduction
Offences
This table outlines offences relating to surveil ance under the Act.
Offence Section Offence
Penalty
code
7468
175
False application
On conviction:
Making an application for a:
1 year imprisonment
surveillance device warrant;
search warrant; or
declaratory order
that contains assertion or statement known to be false.
7463
179
Disclosing information acquired through search or surveil ance
On conviction:
Knowingly discloses information acquired through:
Individual, 6 months
imprisonment
the exercise of a search or surveillance power; or
Body corporate
the exercise of a production order or examination order; or
$100,000 fine
the use of a device, technique, or procedure, or the carrying out of an
activity specified in a declaratory order
otherwise than in the performance of the person's duties, functions or powers
Note: The offence extends to a person assisting a constable or enforcement
officer.
Note: See the section 'Offences under the Act' i
n P' art 1 - Search introduction' of the 'Search' chapter for a full list of offences
under the Act.
Printed on : 12/07/2021
Printed from
: https://tenone.police.govt.nz/pi/surveil ance-introduction
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Categories of surveil ance with a device
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Table of Contents
Table of Contents
2
Executive summary
4
Surveil ance devices
5
Interception device
5
Tracking device
5
Visual surveillance device
5
Categories of surveil ance with a device
6
Category 1: Surveillance using a device that is lawful without a warrant
7
Surveillance activities that are generally lawful
7
Surveillance activities must be lawful and reasonable
7
Example of category 1 activity that is lawful without a warrant
7
Category 2: Surveillance using a device that requires a warrant
9
Types of activities requiring a warrant
9
Interception of a private communication by means of an interception device
9
Use of a tracking device
9
Visual surveillance of private activity in private premises by means of a visual surveillance device
10
Visual surveillance of private activity in the curtilage of private premises by means of a visual surveillance device
11
Visual surveillance by means of a visual surveillance device that involves trespass on land or goods
11
Category 3: Surveil ance using a device that normally requires a warrant but may be done without
warrant in situations of urgency or emergency
13
Situations allowing the exercise of warrantless surveillance pow ers
13
How to apply the period of 48 hours without a warrant
14
Example of when s48 emergency or urgency powers should be used
14
Category 4: Surveillance using a device that is always unlawful
15
Categories of surveil ance with a device
The content of this chapter must not be disseminated external to Police without prior approval from the National
Manager: Criminal Investigations Group.
3/15
Categories of surveil ance with a device
Executive summary
Surveillance without a device (for example, watching activity with the naked eye, or listening to a conversation without the aid
of a listening device) is governed by the pre-existing law. In brief, such surveillance is lawful if no trespass is involved or in the
particular circumstances is not unreasonable under section
21 of the New Zealand Bil of Rights Act 1990.
Surveillance by means of a device falls into four categories and these are explained in this part:
surveil ance that may be undertaken lawfully without a warrant (category 1)
surveillance that normally requires a warrant (category 2)
surveillance normally requiring a warrant that may be done without warrant in situations of emergency or urgency
(category 3)
surveillance that is always unlawful (category 4).
Key, critical points for Police to note:
The
Search and Surveil ance Act 2012 applies only to surveillance using one of three specified devices:
interception device
tracking device
visual surveillance device.
Surveillance without a device (for example, watching activity with the naked eye, or listening to a conversation without
the aid of a listening device) is governed by the pre-existing law. In brief, such surveillance is lawful if no trespass is
involved or in the particular circumstances is not unreasonable under section
21 of the New Zealand Bil of Rights Act
1990.
Interception, tracking and visual surveillance devices are defined on page 3.
A number of surveillance activities are generally lawful without warrant.
In certain emergency situations surveillance that normally requires a warrant may be undertaken for a period without a
warrant. The surveillance without a warrant in these situations of emergency or urgency must be for a period not
exceeding 48 hours from the time the surveil ance device is first used.
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Categories of surveil ance with a device
Surveil ance devices
The Act regulates the use of three types of surveillance devices (interception, tracking and visual), and they are broadly
defined. (
s3)
Interception device
Interception device is defined in sectio
n 3, and 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 (including a telecommunication);
but
does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal
hearing.
This definition covers all manner of listening devices, from sophisticated devices used to intercept communications through to
simple audio recorders.
Tracking device
Tracking device in sectio
n 3 means:
a device that may be used to help ascertain, by electronic or other means, either or both of the following:
the location of a thing or a person;
whether anything has been opened, tampered with, or in some other way dealt with; but
does not include a vehicle or other means of transport, such as boat or helicopter.
If the device is being used to track the location of a thing or a person, it does not require that the device be installed in or on a
thing. If the technology being employed allows a person or thing to be tracked remotely by means of a device that does not
need to be installed on a thing being tracked or in the possession of the person being tracked, it comes within the definition of
tracking device and is governed by the regime. Accordingly, it cover
s technology, for example, that enables a person's location
to be determined from the GPS on their smart phone when it is turned on.
Visual surveil ance device
Visual surveillance device is defined in sectio
n 3 to mean:
any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device
that is used or is capable of being used to observe, or to observe and record, a private activity; but
does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better
than normal vision.
This is a wide definition. It includes photographic and video cameras and binoculars, and it encompasses anything else that
enhances normal vision.
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Categories of surveil ance with a device
Categories of surveil ance with a device
Under the
Search and Surveillance Act 2012, surveillance by means of a device now falls into four categories:
surveillance that may be undertaken lawfully without a warrant (category 1)
surveil ance that normally requires a warrant (category 2)
surveillance normally requiring a warrant that may be done without warrant in situations of emergency or urgency
(category 3)
surveillance that is always unlawful (category 4).
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Categories of surveil ance with a device
Category 1: Surveil ance using a device that is lawful without a warrant
Surveillance activities that are generally lawful
Apart from the activities that are permitted under secti
on 48 (use of a surveillance device in some situations of emergency or
urgency), the following surveillance activities are generally lawful without warrant:
visual and audio surveillance without a device that does not involve trespass on land or goods (these are outside the
scope of the surveil ance device regime under the Act)
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, does
not exceed:
3 hours in any 24-hour period; or
8 hours in total (
s46)
Note: The stipulated time period beyond which a warrant is required relates to the whole period of observation if a visual
surveillance device is used for any part of it. For example, if a constable in the course of keeping observations on a suspected
'tinny house' photographs a person entering the premises on a single occasion, a warrant is required once the total period of
the observation exceeds 3 hours in 24 or 8 hours in total.
interception of a communication that is not 'private' (
s46) the use of a tracking device for the sole purpose of determining whether a thing has been opened, tampered with or in
some other way dealt with, if its installation does not involve a trespass
the recording of what an officer
could see or hear without the assistance of the device in private premises that he or she
has lawfully entered (for example, a digital recording or a written account of a conversation that an officer overhears, or a
video recording of the interior of a house that the officer observes)
(s47) the covert recording of a voluntary conversation between two or more persons with the consent of at least one of them
(for example, the covert recording by an officer of a conversation in which he or she is participating, or the instal ation of
a listening device on a CHIS that enables the officer to record a conversation between the CHIS and a third party)
(s47) activities carried out:
under section
4A(1) or (2) of t
he New Zealand Security Intelligence Service Act 1969; or
under section
15A(1)(a) of the
Government Communications Security Bureau Act 2003; or
by the enforcement officer's use of a surveillance device, if that use is authorised under an enactment other than the
Search and Surveil ance Act 2012.
(s47)
Surveillance activities must be lawful and reasonable
Although these activities are lawful and may be undertaken without a warrant, they are still subject to secti
on21 of the New
Zealand Bil of Rights Act and must therefore be reasonable.
Nevertheless, the fact that Parliament has stated that the activities falling within category 1 can lawfully be undertaken without
a warrant can give you some confidence that they will normally be reasonable. The question of reasonableness is only likely to
arise if there is something unusual about the particular circumstances in which the activity is being carried out.
If you digitally record a conversation that you overhear in a house, and you subsequently use technology to make a muffled
conversation clearer, it is doubtful whether this is lawful without a warrant. Similarly, it is doubtful whether it is lawful for you to
use the zoom function on a video camera at a later date to view more closely particular parts of the scene of a house that you
have lawfully entered (s
47(1)(a)(ii)). Note, however, for the second scenario involving use of a visual surveillance device,
there may be circumstances when this is permitted (ss
110(j) and 123(3)). In both these situations you should err on the side
of caution and obtain a warrant beforehand unless a warrantless power can be exercised.
Example of category 1 activity that is lawful without a warrant
The use of Police owned CCTV in cell blocks, watch houses and the exterior of Police premises is surveillance using a device
that is lawful without a warrant because visual observation/recording:
is not of private activity
(s46) is not on private premises and to the extent it is, is not covert
(s46)
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Categories of surveil ance with a device
does not involve trespass to land or goods
(s46) is not unreasonable (section
21 of the New Zealand Bill of Rights Act) for the following reasons:
health and safety (preventing harm) of employees, public and prisoners
investigating complaints of assault by one prisoner on another prisoner
investigating complaints against Police
clarifying allegations about property handling and security.
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Categories of surveil ance with a device
Category 2: Surveil ance using a device that requires a warrant
Types of activities requiring a warrant
There are five types of activities involving a device that,
subject to the use of the emergency warrantless power(i.e.
category 3), require a warrant under section
46:
interception of a private communication by means of an interception device
use of a tracking device (unless it is solely for the purpose of ascertaining whether something is opened, tampered with
or dealt with and the installation of the device does not involve a trespass to land or goods)
visual observation and/or recording of private activity in private premises and any recording of that observation by means
of a visual surveil ance device
visual observation and/or recording of a private activity in the curtilage of private premises by means of a visual
surveil ance device for longer than the specified time thresholds
visual observation and/or recording by means of a visual surveillance device that involves trespass to land or goods.
It should be noted that law enforcement agencies other than Police must have approval from the Governor General, by Order
in Council made on the recommendation of the Minister of Justice, before they can undertake any visual surveillance involving
trespass or use an interception device.
(s50)
Interception of a private communication by means of an interception device
A warrant must be obtained to use an interception device to intercept a private communication (whether in oral, written or in
the form of a telecommunication). It does not matter where the communication or conversation occurs. If it is 'private', a
warrant to intercept it is required even if it is occurring in a public place. Exceptions to the requirement to obtain a warrant can
be found in
s47(1)(a) and (b). (s46)
There are two criteria that must be satisfied before a communication or conversation will be regarded as 'private':
1 It must occur in "circumstances that may reasonably be taken to indicate that any party to the communication desires it to be
confined to the parties to the communication" - in other words, there must be something in the situation or surrounding
circumstances that might reasonably lead you to believe that the parties intend it to be confidential. If there is not, the
communication cannot be private.
2 Even if there is evidence that parties intend the communication to be confidential, it must not occur in "circumstances in
which any party to the communication ought reasonably to expect that the communication may be intercepted by some
other person without having the express or implied consent of any party to do so". If they ought reasonably to expect
interception, the communication is not private even if they intend it to be confidential. For example, people cannot reasonably
expect to have confidential conversations in a crowded public place or cafe where they can readily be overheard. It should
be emphasised that the test here, is what the participants' 'reasonable expectation' ought to be. If offenders are having a
confidential conversation in circumstances in which they have a right to expect that it will not be intercepted, it will be a
private communication even if they suspect that it is in fact being intercepted.
If the communication is 'private', a warrant to use an interception device to intercept it is available only when:
there are reasonable grounds to suspect that an offence punishable by 7 years imprisonment or more, or against section
44, 45, 50, 51, 54 or 55 of the Arms Act 1983, or against secti
on 25, 26, or 70 of the Psychoactive Substances Act
2013, has been, is being or will be committed; and
there are reasonable grounds to believe that the interception will obtain evidential material in respect of the offence.
(s45)
A warrant to intercept a 'private' communication in order to gather evidential material in relation to any lesser offence, or for
any other purpose, is not available and any such interception wil be unlawful.
Use of a tracking device
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Categories of surveil ance with a device
A warrant must be obtained to use a tracking device in the following circumstances:
when it is being used in any way to ascertain the location of a person or thing
when it is being used to determine whether anything has been opened, tampered with or in some other way dealt with,
and its use involves trespass on land or goods (so that, for example, the installation of motion sensors around the
perimeter of a cannabis plantation on private land requires a warrant, since this involves trespass, whereas the
installation of an alarm with the consent of the owner in order to detect unauthorised entry does not).
Under section
51 a warrant is available only when:
there are reasonable grounds to suspect that an imprisonable offence (or an offence for which a search warrant could be
obtained under other specific legislation) has been, is being or wil be committed; and
there are reasonable grounds to believe that the use of the tracking device will obtain evidential material in respect of the
offence.
The offence penalty threshold in secti
on 45 that restricts some forms of trespass surveillance, does not apply to the use of
tracking devices.
Where the device is being used to track the location of a thing or person, it may not be necessary for that device to be installed
in or on the thing being tracked, though this will often be the case. A warrant is also required where the tracking technology
employed does not depend on the installation of the device; for example, the use of technology to determine the whereabouts
of a person through their mobile phone.
Visual surveillance of private activity in private premises by means of a visual
surveil ance device
A warrant must be obtained to use a visual surveillance device to observe, or to observe and record, private activity in private
premises.
Two criteria must be satisfied before this warrant requirement applies:
1 The activity being observed must be 'private'. That means that it must be "activity that, in the circumstances, any one or
more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants". As with
the second criterion in relation to 'private communication', the test here is what the participants' reasonable expectation
ought to be, rather than what their expectation as to privacy actual y is.
2 The activity must be occurring in 'private premises'. These are defined in secti
on3 to mean "a private dwelling house, a
marae and any other premises that are not within the definition of non-private premises". The latter are defined to mean
"premises, or part of a premises, to which members of the public are frequently permitted to have access, and includes any
part of a hospital, bus station, railway station, airport, or shop". In short, therefore, the warrant requirement covers activity
that occurs in any building other than a building to which the public frequently have access. Of course, the public may have
general access to a building (such as a shop) at some times of the day but not others. Similarly, the public may have access
to one part of a building (such as a hospital) but not another. Some premises may therefore be private premises at some
times and non-private premises at others. Some may also be partly private premises and partly non-private premises. If you
are intending to mount a surveillance operation in respect of a building other than a dwelling house, therefore, you should
think carefully about the parts to which, and the times at which, the public have access when you determine whether a
warrant is required.
If these criteria are met, a warrant is available only when:
there are reasonable grounds to suspect that an offence punishable by 7 years imprisonment or more, or against section
44, 45, 50, 51, 54 or 55 of the Arms Act 1983, or against secti
on 25, 26, o
r 70 of the Psychoactive Substances Act
2013,, has been, is being or wil be committed (s
45); and
there are reasonable grounds to believe that the surveillance wil obtain evidential material in respect of the offence
(5s1
).
The use of a visual surveillance device to observe/record private activity on private premises for offences that do not meet the
thresholds in section
45 is unlawful.
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Categories of surveil ance with a device
Visual surveillance of private activity in the curtilage of private premises by means of
a visual surveillance device
A warrant must be obtained to use a visual surveillance device to observe, or to observe and record, private activity in the
curtilage of private premises if the visual surveillance being undertaken is for longer than the prescribed time periods of:
3 hours in any 24-hour period; or
8 hours in total.
(s46(1)(e))
Note:
If no surveillance device used and no trespass occurs, then no warrant is required.
If a trespass is to occur, but a device is not used, then a search warrant is required.
If a device is used to record, say, activities at a 'tinny house', a surveillance device warrant should be obtained even
though those activities can be observed by passersby.
When using a visual surveil ance device the time starts when initial observations commence (this applies whether or not
a device was used to commence initial observations).
There is no requirement to commence an application for a surveillance device warrant when it is known beforehand the
observation will not extend beyond the statutory time periods. Should any doubt exist about the period of observation
required, then err on the side of caution and commence an application for a surveillance device warrant immediately.
Remember: You must stop the observation at the expiry of the time period, unless you have obtained a surveillance
device warrant authorising the visual surveillance or have invoked the emergency or urgency powers under section
48 of
the Act.
Three criteria need to be satisfied before this warrant requirement applies:
1 The activity being observed must be 'private', as discussed above.
2 The activity must be occurring in the 'curtilage' of private premises. The 'curtilage' means the land immediately surrounding a
house or building, including any closely associated buildings and structures but excluding any associated open fields
beyond them. It defines the boundary within which the owner of a building can have a reasonable expectation of privacy and
where common daily activities take place. For example, in relation to a residential dwelling, the curtilage is the ground
between the fence, garden, hedge or mowed grass border and the house. In other words, it is a garden, front or back yard,
lawn or other equivalent piece of ground near to or belonging to a home. The curtilage of the dwelling does not necessarily
equate with the boundary of the property, although in the vast majority of cases the boundary and the curtilage exactly
coincide. Thus, the curtilage of a suburban home is likely to be clearly defined by a fence line, whereas the house and
curtilage on a farm wil form a small part of the whole property.
3 In respect of a single investigation, or a connected series of investigations, the surveil ance must not exceed 3 hours in a 24-
hour period or 8 hours in total. Surveil ance of a curtilage by means of a device that does not exceed these time periods
does not require a warrant. The time starts when initial observations commence (this applies whether or not a device was
used to commence initial observations).
If these criteria are met, a warrant is available only when:
there are reasonable grounds to suspect that an offence punishable by 7 years imprisonment or more, or against section
44, 45, 50, 51, 54 or 55 of the Arms Act 1983, or against secti
on 25, 26, o
r 70 of the Psychoactive Substances Act
2013,, has been, is being or wil be committed (
s45); and
there are reasonable grounds to believe that the surveillance wil obtain evidential material in respect of the offence
(5s1
).
The use of a visual surveillance device to observe/record private activity on private premises for offences that do not meet the
thresholds in section
45 is unlawful.
Visual surveillance by means of a visual surveillance device that involves trespass
on land or goods
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Categories of surveil ance with a device
A warrant must be obtained to use a visual surveillance device to observe, or to observe and record, any activity (private or
otherwise) if the installation or use of that device involves trespass on land or goods. You are trespassing if you enter onto any
private land, or handle any private goods (for example, by installing a device on a vehicle), without the explicit or implied
consent of the owner.
A warrant is available only when:
there are reasonable grounds to suspect that an offence punishable by 7 years imprisonment or more, or against section
44, 45, 50, 51, 54 or 55 of the Arms Act 1983, or against secti
on 25, 26, o
r 70 of the Psychoactive Substances Act
2013,, has been, is being or wil be committed (
s45); and
there are reasonable grounds to believe that the interception wil obtain evidential material in respect of the offence
(5s1
).
A warrant to observe any activity involving trespass on land or goods, in order to gather evidential material in relation to any
lesser offence or for any other purpose is not available and any such observation wil be unlawful.
In contrast, no warrant is required to observe activity on private land that is not private premises or the curtilage of private
premises if no trespass is involved. For example, you can without a warrant observe farmland with binoculars or a video
camera from a road or other public place.
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Categories of surveil ance with a device
Category 3: Surveil ance using a device that normally requires a warrant
but may be done without warrant in situations of urgency or emergency
Section
48 of the Act makes provision for surveillance that normally requires a warrant to be undertaken for a period without a
warrant. The surveillance must be for a period not exceeding 48 hours from the time the surveillance device is first used in
some specified situations of emergency or urgency.
There are two conditions that must be met before you can use this warrantless power:
you must be entitled to apply for a surveillance device warrant in that situation that you are presented with
obtaining a warrant beforehand is impracticable in the circumstances.
Situations allowing the exercise of warrantless surveillance powers
The situations that allow the exercise of this warrantless power largely mirror those that allow the exercise of a warrantless
search power. Under section
48, if you are:
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Categories of surveil ance with a device
in any one or more of these situations where you have reasonable
and you believe that then you may use a
grounds. .
use of the
surveil ance device..
surveil ance device..
to suspect that an offence punishable by a term of imprisonment of 14
would obtain
intermittently or
years or more has been, is being, or is about to be committed;
evidential material in continuously for a period
relation to the offence; not exceeding 48 hours in
total without obtaining a
to suspect that under section
14(2):
is necessary to
surveillance device warrant,
prevent the offending if:
an offence is being committed, or is about to be committed, that
would be likely to cause injury to any person, or serious damage to, from being committed
or continuing, or to
you are entitled to
or loss of, any property;
apply for a
or
avert the emergency;
surveillance device
there is risk to the life or safety of any person that requires an
warrant in relation to
emergency response;
these situations; but
obtaining a warrant
to suspect that under section
18(2):
is necessary to
within the time it is
facilitate the seizure of
proposed to
a person is carrying arms; or
the arms;
undertake the
a person is in possession of arms, or has them under their control;
surveil ance is
impracticable in the
and
circumstances.
they are in breach of the Arms Act 1983; or
they, 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;
to suspect that a category 3 or 4 offence in relation to arms or an offence would obtain
against the Arms Act 1983 has been committed, or is being committed, or evidential material in
is about to be committed;
relation to the offence;
to suspect that an offence has been committed, or is being committed, or would obtain
is about to be committed in relation to a controlled drug specified or
evidential material in
described i
n Schedule 1, Part 1 of
Schedule 2, or Part 1
of Schedule 3 of relation to the offence;
the Misuse of Drugs Act 1975, or to a precursor substance specified or
described in Part 3 of
Schedule 4 of that Act;
to suspect that a person is in possession of any one or more of these
would obtain
things (section
81(2)):
evidential material in
relation to the offence;
a controlled drug
a precursor substance
a package in relation to which the Customs officer has replaced all or
a portion of any controlled drug or precursor substance
evidential material in relation to the commission of an offence under
secti
on 6(1)(a) (dealing with controlled drugs) or
12AB (knowingly
import or export precursor substances for unlawful use) of the
Misuse of Drugs Act 1975;
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Categories of surveil ance with a device
If these warrantless surveillance powers involve trespass surveillance (other than by means of a tracking device) or an
interception device, they are available only when:
there are reasonable grounds to suspect that an offence punishable by 7 years imprisonment or more, or against section
44, 45, 50, 51, 54 or 55 of the Arms Act 1983, or against secti
on 25, 26, o
r 70 of the Psychoactive Substances Act
2013,, has been, is being or wil be committed; and
there are reasonable grounds to believe that the surveillance wil obtain evidential material in respect of the offence
. (4s5
)
Note: The power to use a surveillance device for a period not exceeding 48 hours without a warrant extends to all enforcement
officers. See:
'Internal approvals' i
n 'Surveil ance device warrants' for guidance in the circumstances and level of approval required
when using warrantless surveil ance powers.
‘ Surveil ance reporting’ for notifying the Commissioner of the use of the warrantless surveil ance power on the Search
and Surveil ance System.
Before using any surveilance device that would normally require a warrant, you should ask yourself the folowing questions:
What type of surveillance is involved (i.e. interception, tracking, visual surveillance without a trespass, visual surveillance
involving trespass)?
Is the suspected offence of a type that would enable a warrant to be obtained for that type of surveillance?
Does one of the six situations justifying the use of warrantless surveil ance apply?
Is it impracticable to obtain a warrant before the surveillance needs to commence?
How to apply the period of 48 hours without a warrant
The stipulated time period of 48 hours commences from the time the surveillance device is first used.
If you commence a warrantless surveillance activity, but think that the surveillance might continue for a sufficiently lengthy
period then you should immediately commence the process of obtaining a warrant. If the application is refused, you must
cease the surveillance activity immediately. In any event, you must never continue the warrantless surveillance beyond 48
hours from the time at which the surveil ance device is first used.
Example of when s48 emergency or urgency powers should be used
Section 6(c) Official Information Act 1982
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Categories of surveil ance with a device
Category 4: Surveil ance using a device that is always unlawful
It follows that the use of a surveillance device is always unlawful if it is
not:
generally lawful without warrant (category 1); or
authorised by warrant (category 2); or
authorised by the emergency or urgency warrantless provision (category 3).
Unless the use of the device falls into category 1, all surveillance for intelligence gathering, or for evidence gathering in respect
of offences for which a warrant is not available, is unlawful.
Printed on : 12/07/2021
Printed from
: https://tenone.police.govt.nz/pi/categories-surveillance-device
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Surveil ance device warrants
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Table of Contents
Table of Contents
2
Executive summary
5
Introduction to surveil ance device warrants
6
When is a surveil ance device warrant required?
6
What does a surveil ance device warrant authorise?
6
Who may apply for a surveil ance device warrant?
6
Grounds for applying
6
No other restrictions for obtaining a warrant
7
Period of warrant limited
7
Extending period of warrant
7
Internal approvals
8
Use of interception devices
8
Telephone interception and/or installation of a device for audio interception
8
Warrantless power to use interception device
9
Use of tracking devices
9
Use of visual surveillance devices
10
Installation of visual surveil ance equipment
10
Visual surveil ance equipment not requiring installation
11
How to apply for a surveil ance device warrant
13
Mode of application
13
When are oral applications allowed?
13
Applications without personal appearance or oral communication
13
Applying for surveillance device warrants
14
Pre-application checks and set-up
14
Making application
14
Manual application process
17
What should be included and avoided in applications?
19
Including informant information in surveil ance device applications
19
Informant defined
19
Revealing identity of informants
19
Including CHIS information
19
Good practice with preparing application
19
Errors commonly made when applying for surveil ance device warrants
20
De-confliction
21
Introduction
21
Open and closed applications explained
21
De-confliction process outlined
21
Conflicting surveil ance device warrant applications
21
De-confliction action
21
Conflicting surveil ance device warrant/search warrant applications
22
De-confliction actions - surveil ance device warrant applicant
22
Al known targets of surveil ance must be disclosed in the application
22
Practice note for the hearing of applications
23
Police internal protocols for communicating with Courts
24
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Issuing surveil ance device warrant
25
When is a surveil ance device warrant invalid?
26
Safe execution of surveil ance device warrants - entry to adjoining/neighbouring properties
27
Introduction
27
Application to include entry to adjoining/neighbouring properties
27
Wording application and warrants
27
Quick reference guide: surveil ance device warrants and warrantless powers
29
Pre-application checks and set-up
29
Apply for Surveil ance Device Warrant
29
Approvals
29
Using warrantless surveil ance device power
30
Surveil ance device warrant notifications and reporting
30
Warrantless surveil ance device power notifications and reporting
30
Retention and security of applications for warrants
32
Disclosure and requests for copies of surveillance device warrant applications
33
Surveil ance device warrants
The content of this chapter must not be disseminated external to Police without prior approval from the National
Manager: Criminal Investigations Group.
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Surveil ance device warrants
Executive summary
This part provides instructions about surveillance device warrants:
internal approvals
making application for warrants
de-confliction process
Police internal protocols for communicating with Courts
safe execution of warrants – entry to adjoining/neighbouring properties
retention and security
disclosure and requests for warrants.
Police must be aware of these key, critical points for surveillance device warrants:
A surveillance device warrant must be obtained to use a surveillance device in respect of a person, place, vehicle, or
thing, unless some situations of emergency or urgency apply under section 48.
Any constable may apply for a surveillance device warrant, subject tointernal approval from a Detective Inspector or
Acting Detective Inspector (District Crime/Field Crime Manager).Surveil ance device warrant applications because of
their complexity may be prepared outside the Search and Surveillance System using the enhanced features of the
Microsoft Word platform.
The warrant
must be prepared in the Search and Surveillance System to obtain the system’s generated unique
identification number on the warrant before it is provided to a Judge and accepted by the CMC and TSU,
unless the
system cannot be accessed
and there is urgency with making a written application. In this situation the warrant must be
prepared in the S&S System as soon as practicable after it becomes accessible.
Note: Preparing the warrant in the
Search and Surveil ance System also ensures:
data is collected for the annual reporting of search and surveillance powers by the Commissioner to Parliament
(s170) managing de-confliction involving any other application for a search warrant or a surveillance device warrant within
3 months (
s 49(3)).
Approval to exercise a warrantless surveil ance device power should first be obtained from a Detective Inspector or
Acting Detective Inspector (District Crime/Field Crime Manager), unless the specific criteria in the internal approval
section are met.
Warrant application owners and their supervisors upon receipt of a de-confliction email relating to conflicting surveil ance
device warrant/search warrant applications for the same target must comply with the actions set out in the de-confliction
section.
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Surveil ance device warrants
Introduction to surveil ance device warrants
When is a surveillance device warrant required?
Except as provided in sections
47 (some activities that do not require a warrant)
and 48 (some situations of emergency and
urgency), an enforcement officer who wishes to undertake any one or more of the following activities must obtain a
surveil ance device warrant:
use of an interception device to intercept a private communication
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
observation of private activity in private premises, and any recording of that observation, by means of a visual
surveil ance device
use of a surveillance device that involves trespass to land or trespass to goods
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:
3 hours in any 24-hour period; or
8 hours in total.
Note: The activities above for which a surveillance device warrant is required is subject to the restrictions on some trespass
surveil ance and use of interception device in section
45 of the Act.
What does a surveillance device warrant authorise?
A surveillance device warrant may authorise you to use surveillance device(s):
for the purpose of:
intercepting private communications
tracking (unless the purpose is only to determine whether a thing is being handled and the installation of the device
does not involve a trespass on land or trespass to goods)
visual observation of private activity on private premises, and any recording of that observation
visual observation of private activity in the curtilage of private premises for longer than 3 hours in any 24 hour
period, or 8 hours in total, and any recording of that observation
visual surveillance that involves a trespass to land or goods
to obtain evidential material from a person, place, vehicle or other thing in respect of specific offences (seeG‘ rounds for
applying’ for description of offences) identified under secti
on 45 of the Act.
Note: Offences under section
45 include those:
punishable by 7 years imprisonment
against section
44, 45, 50, 51, 54 or 55 of t
he Arms Act 1983
against section
25, 26, or
70 of the Psychoactive Substances Act 2013.
Who may apply for a surveillance device warrant?
Any constable may apply for a surveillance device warrant, subject tointernal approval.
Any enforcement officer may apply for a surveilance device warrant, but if the application for a surveilance device warrant is
seeking authority to use visual trespass surveil ance or an interception device, then the officer must be employed or engaged
by an enforcement agency that has been approved by an Order in Council. (
s 49(5))
Under section
50 an enforcement officer (such as a customs officer) must have their specified law enforcement agency
approved (by the Governor-General, by Order in Council made on the recommendation of the Minister of Justice) to carry out
visual trespass surveil ance and to use interception devices.
Grounds for applying
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Surveil ance device warrants
You can apply for a surveillance device warrant if you have reasonable grounds:
to suspect an offence punishable by 7 years imprisonment, or an offence against secti
on44, 45, 50, 51, 54 or 55 of the
Arms Act 1983, or against section
25, 26, or
70 of the Psychoactive Substances Act 2013, for the most intrusive form of
surveil ance on privacy (e.g. use of interception devices and visual surveillance devices involving trespass), or an offence
punishable by imprisonment when any lesser intrusion of privacy is contemplated (e.g. to use a visual surveillance
devices not involving trespass and tracking devices),
and
to believe that the surveil ance will obtain evidential material in respect of the offence, involving the person, or in the
place, vehicle or other thing specified in the application.
See the section 'Evidential material' i
n 'Surveilance introduction' for more information about what this term means. (s
s45 and
51)
See the section 'Category 2: surveillance using a device that requires a warrant' i
nC' ategories of surveillance with a device' for
more information.
No other restrictions for obtaining a warrant
Other than obtaining internal approval and satisfying the grounds for obtaining a surveillance device warrant, there are no
other operational policy or legal restrictions. While there is no statutory preference for one form of evidence gathering over
another, the least intrusive form that is reasonably practicable should be preferred. Another matter to be considered is the cost
versus the benefit.
Period of warrant limited
A warrant may be issued for a period of no more than 60 days after the date on which the warrant is issued, and is in force for
that period. (
s55)
Extending period of warrant
There is no warrant renewal procedure under the Act. To extend the period of 60 days or the lesser period for which the
warrant is valid, a new application for a surveillance device warrant will be required. Use information provided in the original
application and explain why you want to continue with the surveillance device beyond the expiry period of the earlier
application under paragraph 6 of the application. The new warrant application can be made to the same Judge or a different
Judge, but it is preferable to present the application to the same Judge if available.
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Surveil ance device warrants
Internal approvals
Use of interception devices
Telephone interception and/or installation of a device for audio interception
Devices involving landline telephone/mobile phone interception or installation of a device for audio interception require
CMC/TSU approval.
Approval requirements:
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Surveil ance device warrants
Stage Description
1
Initial approval from a Detective Inspector or Acting Detective Inspector (District Crime/Field Crime Manager) - hereafter
referred to as "DI".
Note: The applicant will invariably be the subject matter expert.
2
CMC Ops Manager approached to confirm capacity.
3
If no capacity and high priority request, CMC Ops Manager endeavours to reprioritise or involves CMC Approvals
Committee.
4
Request for TSU assistance and confirmation of capacity if required.
5
Warrant application approved by CSM/FCM.
Because of their complexity, surveillance device warrant applications may be prepared outside the Search and
Surveillance (S&S) System using the enhanced features of the Microsoft Word platform.
The warrant
must be prepared in the S&S System to obtain the system’s generated unique identification number on the
warrant before it is provided to a Judge and accepted by the CMC and TSU,
unless the system cannot be accessed
and there is urgency with making a written application. In this situation the warrant must be prepared in the S&S
System as soon as practicable after it becomes accessible.
Mandatory fields in the system may be completed by referencing as appropriate to the ‘Word’ document (e.g. “Refer to
Appendix A”).
Note: Preparing the warrant in the Search and Surveillance System ensures:
data is collected for the annual reporting of search and surveillance powers by the Commissioner to Parliament
(s170)
managing de-confliction involving any other application for a search warrant or a surveillance device warrant
within 3 months (
s49(3)).
6
Application checked by a Police legal advisor to verify that the legal requirements of theSearch and Surveillance Act
2012 are met.
Note:
The consultation with a legal advisor should be recorded by way of a notebook entry and/or decision log entry.
The notebook entry and/or decision log entry should also include a summary of the grounds relied upon for use of
a surveil ance device(s) pursuant to section
48. The warrant
must have a Search and Surveillance System generated identification number attached or a
practicable explanation given as to why the unique number is missing, before the legal advisor provides advice on
the legal requirements.
7
Application made to Judge.
Note:
Any Police employee can physically file the application at Court on behalf of the applicant.
The application should be filed in the Court of jurisdiction most likely to hear any subsequent trial.
All communications with the judiciary should be conducted by Legal Services and not individual constabulary
Police employees.
8
On issue of warrant, copy of warrant and application provided toCMC/TSU.
Warrantless power to use interception device
An interception device may be used for surveillance in some situations of emergency or urgency under the secti
on48
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Surveil ance device warrants
warrantless power. Approval to use an interception device should be obtained from a DI unless:
the immediacy of the situation does not allow for prior planning and approval from a DI; and
statutory criteria met; and
an opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time
Notes:
The DI should consult with Legal Services before approving the use of secti
on48 emergency/urgency power. If a Legal
Advisor is:
unavailable then the DI may proceed and approve a request once all the facts and law have been considered
available then the consultation with a legal advisor should be recorded by way of a notebook entry and/or decision log
entry.
See these Police Manual chapters:
'Categories of surveil ance with a device' for instructions relating to 'Category 3: Surveil ance using a device that normally
requires a warrant, but may be done without warrant in situations of urgency or emergency'
'Covert backstopping' for the obtaining and use of covert equipment for audio, video, transmitting, tracking, intercepting
and telecommunications purposes.
‘ Surveil ance reporting’ for notifying the Commissioner of the use of the warrantless surveil ance power on the Search
and Surveil ance System.
Use of tracking devices
Approval requirements largely reflect current policy:
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Stage Description
1
Initial approval from a DI.
Note: The drafter of the application will invariably be the subject matter expert.
2
Request for TSU assistance and confirmation of capacity if required. (This may also be a case where CMC is involved.)
3
Warrant application requires CSM/FCM approval.
Because of their complexity, surveillance device warrant applications may be prepared outside the Search and
Surveillance (S&S) System using the enhanced features of the Microsoft Word platform.
The warrant
must be prepared in the S&S System to obtain the system’s generated unique identification number on the
warrant before it is provided to a Judge and accepted by the CMC and TSU,
unless the system cannot be accessed
and there is urgency with making a written application. In this situation the warrant must be prepared in the S&S
System as soon as practicable after it becomes accessible.
Mandatory fields in the system may be completed by referencing as appropriate to the ‘Word’ document (e.g. “Refer to
Appendix A”).
Note: Preparing the warrant in the Search and Surveillance System ensures:
data is collected for the annual reporting of search and surveillance powers by the Commissioner to Parliament
(s170) managing de-confliction involving any other application for a search warrant or a surveillance device warrant
within 3 months (
s49(3)).
4
Application checked by a Police legal advisor to verify the legal requirements of t
heSearch and Surveillance Act 2012
are met.
Note:
The consultation with a legal advisor must be recorded by way of a notebook entry and/or decision log entry. The
notebook entry and/or decision log entry should also include a summary of the grounds relied upon for use of the
surveil ance device(s) pursuant to section
48. The warrant
must have a Search and Surveillance System generated identification number attached or an
explanation given as to why the unique number is missing, before the legal advisor provides advice on the legal
requirements.
5
Application made to Judge.
Note:
Any Police employee can physically file the application at Court on behalf of the applicant.
The application should be filed in the Court of jurisdiction most likely to hear the subsequent trial.
All communications with the judiciary should be conducted by Legal Services and not individual constabulary
Police employees.
6
On issue of warrant, copy of warrant and application provided to TSU where the installation of a device is required.
Use of visual surveillance devices
Installation of visual surveil ance equipment
If device for observing and recording private activity through installation of covert visual surveillance equipment, whether or not
involving trespass, must be done through TSU and under Police internal policy requires a surveillance device warrant:
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Stage Description
1
Initial approval from a DI.
Note: The drafter of the application will invariably be the subject matter expert.
2
Request for TSU assistance and confirmation of capacity. (This may also be a case whereCMC is involved)
3
Warrant application approved by CSM/FCM.
Because of their complexity, surveillance device warrant applications may be prepared outside the Search and
Surveillance (S&S) System using the enhanced features of the Microsoft Word platform.
The warrant
must be prepared in the S&S System to obtain the system’s generated unique identification number on the
warrant before it is provided to a Judge and accepted by the CMC and TSU,
unless the system cannot be accessed
and there is urgency with making a written application. In this situation the warrant must be prepared in the S&S
System as soon as practicable after it becomes accessible.
Mandatory fields in the system may be completed by referencing as appropriate to the ‘Word’ document (e.g. “Refer to
Appendix A”).
Note: Preparing the warrant in the Search and Surveillance System ensures:
data is collected for the annual reporting of search and surveillance powers by the Commissioner to Parliament
(s170) managing de-confliction involving any other application for a search warrant or a surveillance device warrant
within 3 months (
s49(3)).
4
Application checked by a Police legal advisor to verify the legal requirements of t
heSearch and Surveillance Act 2012
are met.
Note:
The consultation with a legal advisor must be recorded by way of a notebook entry and/or decision log entry. The
notebook entry and/or decision log entry should also include a summary of the grounds relied upon for use of the
surveil ance device(s) pursuant to section
48. The warrant
must have a Search and Surveillance System generated identification number attached or an
explanation given as to why the unique number is missing, before the legal advisor provides advice on the legal
requirements.
5
Application made to Judge.
Note:
Any Police employee can physically file the application at Court on behalf of the applicant.
The application should be filed in the Court of jurisdiction most likely to hear any subsequent trial.
All communications with the judiciary should be conducted by Legal Services and not individual constabulary
Police employees.
6
On issue of warrant, copy of warrant and application provided toTSU.
Visual surveil ance equipment not requiring installation
If other visual surveillance equipment is being used (e.g. binoculars, cameras, mobile phones with camera/video function):
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Surveil ance device warrants
Warrantless
/ warrant
Approval description
Warrantless Interception available in situations of emergency/urgency where:
statutory criteria met; and
the immediacy of the situation does not allow for prior planning; and
an opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time
approval required from a DI.
Notes:
The DI should consult with Legal Services before approving the use of secti
on48 emergency/urgency
power. If a Legal Advisor is:
unavailable then the DI may proceed and approve a request once all the facts and law have been
considered
available then the consultation with a legal advisor must be recorded by way of a notebook entry
and/or decision log entry. The notebook entry and/or decision log entry should also include a
summary of the grounds relied upon for use of the surveillance device(s) pursuant to section
48.
See these chapters:
‘ Categories of surveil ance with a device’ for instructions relating to ‘Category 3: Surveil ance using a
device that normally requires a warrant, but may be done without warrant in situations of urgency or
emergency’
‘ Surveil ance reporting’ for notifying the Commissioner of the use of the warrantless surveil ance
power on the Search and Surveillance System.
Warrant
Follow the instructions in the step/action table for I'nstallation of covert surveillance equipment'.
Any exceptions to the internal approvals policy, either in a particular case or in relation to a particular class of users, require
the approval of the National Manager: Criminal Investigations.
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How to apply for a surveil ance device warrant
Mode of application
An application for a surveillance device warrant is normally made in writing and given to the Judge in hard copy.
However, if this is impracticable in the circumstances, you may, with prior agreement of the Judge:
make an application orally, e.g. by telephone or personal appearance, or
have your written application considered without a personal appearance before and/or without oral communication with
the issuing officer.
Written applications may be transmitted to the Judge electronically via the Electronic Operating Model.
N(
ote: This system is
not yet operational). (s
s52 and 100)
When are oral applications allowed?
A Judge may allow an application to be made orally (e.g. in person or by telephone call) and excuse an applicant from putting
all or part of the application in writing if satisfied that:
requiring a written application would result in a delay that would compromise the effectiveness of the surveillance
operation,
and
the question of whether the warrant should be issued can be properly determined on the basis of an oral communication
or personal appearance,
and
all the required information (i.e. that required in a written application) is supplied to the issuing officer. (s
s52 and 100(3))
If an oral application is allowed, the Judge must record the grounds for the application as soon as practicable.
A written surveillance device warrant must also be issued. It is not possible to simply rely on the Judge’s agreement to
undertake the activities authorised. The Judge must sign a warrant. For this reason, it will be necessary for the applicant to
supply the Judge with a draft warrant or a template that can be populated.
Applications without personal appearance or oral communication
A Judge may allow an application without a personal appearance or oral communication if satisfied that:
the question of whether the warrant should be issued can be properly determined on the basis of the applicant's written
communication,
and
the information required for the application has been supplied to the Judge,
and
the Judge is satisfied that there is no need to ask questions of, or seek further information from, the applicant.
(ss52 and
100(4))
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Surveil ance device warrants
Applying for surveil ance device warrants
Pre-application checks and set-up
Step Action
1
Create a NIA Case if one does not already exist.
Note: Avoid identifying target details for forthcoming warrant applications in the NIA case as this may compromise the
security of subsequent warrant execution.
2
Check NIA for any information about the proposed target(s) and also any 'notings' for search warrants issued under other
Acts in the previous three months. This information must be included in the application.
Making application
Follow these steps when making an application for a surveillance device warrant:
Step Action
1
Any constable may apply, subject to meeting internal approval requirements.
Note: The application should be filed in the Court of jurisdiction most likely to hear any subsequent trial.
See the section titled, 'Internal approvals' in this chapter.
2
Make the application for surveillance device warrant in the Search and Surveillance system. Because of their complexity,
surveillance device warrant applications may instead be prepared outside the Search and Surveillance (S&S) System
using the enhanced features of the Microsoft Word platform.
The warrant
must be prepared in the S&S System to obtain the system’s generated unique identification number on the
warrant before it is provided to a Judge and accepted by the CMC and TSU,
unless the system cannot be accessed
and
there is urgency with making a written application. In this situation the warrant must be prepared in the S&S System as
soon as practicable after it becomes accessible.
Mandatory fields in the system may be completed by referencing as appropriate to the ‘Word’ document (e.g. “Refer to
Appendix A”).
Note: Preparing the warrant in the Search and Surveillance System ensures:
data is collected for the annual reporting of search and surveillance powers by the Commissioner to Parliament
(s170) managing de-confliction involving any other application for a search warrant or a surveillance device warrant within
3 months (
s 49(3)).
3
Direct application to High Court or District Court Judge. Identify the Judge by name (if known).
Note:
Whether the application is lodged in the District Court or the High Court is determined by the Court that any resulting
proceedings are likely to be heard. If the application involves a complex legal issue or is likely to set a significant
precedent, the application should be directed to a High Court Judge.
4
Identify constable applying for warrant. (
s49(1))
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Surveil ance device warrants
Step Action
5
Identify type of devices to be used and the method of use intended:
visual surveillance device (e.g. visual surveillance device to observe and record private activity on private
premises)interception device (e.g. interception (audio) device to intercept and record private conversations)
tracking device (e.g. tracking device to ascertain location of target).
(s49(1))
Note: A single application can include more than one type of device to be used.
6
Accurately list and describe in reasonable detail the name and address or other description of the person(s), place(s),
vehicle(s), or other thing(s) that are the target(s) of the surveillance. (
s49(1))
Note: If this information cannot be provided, then under secti
on 49(2) of the Act describe as specifical y as possible the
parameters of, and objectives to be achieved by, the use of the surveillance device(s).
7
State how many days the surveillance device is sought to be used for
Note:
The maximum period is 60 days.
The period the surveillance device(s) is in force commences
after the date on which the surveillance device
warrant is issued, even though the warrant may be executed immediately after it is signed by the Judge (i.e. 60
days on the application and warrant becomes 61 days, because it includes the part day remaining when the
warrant is signed.) (
s55(1))
8
Set out the grounds on which the warrant is sought.
(s49(1))
For more information about the grounds for a warrant, see:
the section, 'Grounds for applying'
the section 'Category 2: surveil ance using a device that requires a warrant' in C' ategories of surveillance with a
device'.
Note: Each offence should be separately specified.
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Surveil ance device warrants
Step Action
9
Outline information relied on in support of suspicion as to offence(s):
establish the link between what information is sought and the target and the target person(s), place(s), vehicle(s) or
other things that are the object of the surveil ance
Note: All
known targets of surveil ance
must be disclosed in the application for a surveil ance device warrant to
ensure that the online de-confliction process in the S&S system operates in compliance with the legal requirements
of secti
on 49(3) of the Act. See 'Al known targets of surveil ance must be disclosed in the application' for an
example.
set out all relevant information whether favourable or unfavourable
describe information received, details of who received it, when and in what circumstances (where appropriate
provide an assessment of the significance and reliability of the information)
describe what relevant inquiries have been made
explain any delay between the last receipt of information or the last enquiry and this application for a warrant
if evidence relied on is provided by a confidential informant, as much information as possible about the informant
(without compromising a confidential informant's identity) must be given
in respect of information received from other people, details are to be provided of who received it, when and in
what circumstances
as far as possible, information received from an informant should be reported in the informant's own words
all relevant information is to be included, even if confidential, except that information revealing the name, address,
or any other identifying details of an informant
the reason for every expression of belief in the application must be explained (personal knowledge is not required,
but where the applicant does not have personal knowledge of a matter, the basis for believing in its truth should be
set out).
(R v Williams refers)
10 Describe as specifically as possible, the nature of the evidential material believed to be obtainable.
Note:
Use the same guide for information relied on under step 9 to support your belief that evidential material is
obtainable.
If this information cannot be provided, then under secti
on 49(2) of the Act describe as specifically as possible the
parameters of, and objectives to be achieved by the use of surveil ance device(s).
11 Specify the details of any relevant other application(s) for a search warrant or a surveillance device warrant, including the
result of that application(s), for the previous 3 months.
Note: You should check in NIA for further information in relation to previous applications, especially when those previous
applications related to multiple targets. (
s 49(3))
12 Provide any additional information in paragraph 8 of the application that is required to enable the Judge to approve the
application, for example:
information about your intended use that is relevant to its reasonableness
reasons for period of warrant
any special features of the device that might affect the reasonableness of its use
any information about the steps that will be taken to protect privileged or confidential material
the condition that the Judge must be provided with a report on the use of the surveil ance device within 1 month of
the expiry of the warrant (or an earlier date specified by the Judge) additional conditions to be added (e.g. shorter
warrant period for one device over another) and reasons.
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Surveil ance device warrants
Step Action
13 If the application is for/includes the use of a visual surveil ance device then the following information should be provided
under paragraph 8 of the application:
the intended location or locations of the devices
the intended field(s) of view
the procedure to be adopted to keep private images (particularly of non-suspects) not required for the purposes of
the investigation.
14 Include as an annex any document in support of the application and ensure:
it accompanies the application; and
that it is referred to in the:
'Information in support of suspicion as to offence(s)' in paragraph 4 of the application
'Description of evidential material believed to be obtainable' in paragraph 5 of the application
'Information supporting belief that evidential material available' in paragraph 6 of the application
'Additional information' in paragraph 8 of the application.
Note:
Supporting documents should only be used if necessary (e.g. to provide detailed narrative if matter has complex
history, or to set out an association chart or timeline).
Include a table of contents as a front sheet in lengthy and complex applications that have many subheadings.
15 Confirm the truth and accuracy of the contents of the application. (s
s52 and 99)
Note: In addition to confirming the truth and accuracy at paragraph 9 of the application, you also state: "I am aware that
it is an offence to make an application containing any assertion or other statement known to me to be false".
16 Sign and date the application including location of the signing.
17 Submit the application to a Police Legal Advisor to check the application and accompanying unsigned warrant.
Note: The warrant must have a Search and Surveillance System generated identification number attached or an
explanation given as to why the unique number is missing, before the legal advisor provides advice on the legal
requirements.
Note:
A significant departure from these procedures and guidelines risks the warrant (and therefore the surveillance) being
deemed unlawful. This in turn may lead to the exclusion of evidential material under section
30 of the Evidence Act
2006.
There is no difference in application procedures between different forms of surveil ance (e.g. visual, audio or tracking).
Manual application process
If the online Search and Surveil ance system is not available, you may manually complete:
these documents:
Application for Surveil ance Device Warrant Pol SD1
Surveillance Device Warrant Pol SD2
Surveillance Device Warrant Report Pol SD3
Warrantless Surveillance Power Notification Pol SD6
the application process by:
manually creating (type up) applications/warrants
obtaining copies of the official standard forms from the National Criminal Investigations Group (NCIG)
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seeking the indulgence of the Court to make oral surveil ance device warrant application if the circumstances are
urgent (section
52 of the Search and Surveil ance Act refers).
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What should be included and avoided in applications?
Including informant information in surveil ance device applications
Informant defined
Under section
3 of the Act, 'informant' has the same meaning as in section 6(1) of the Criminal Disclosure Act 2008, i.e. any
person who provides verbal or written information, whether or not in recorded form, to a law enforcement officer.
'Informant' is not restricted to Covert Human Intelligence Sources (CHIS).
Revealing identity of informants
The names and other identifying details of informants who are not registered asCHIS may be withheld but care must be
exercised to ensure they are informants rather than witnesses, i.e. that they gave information with an expectation that their
identity would be protected (refer
R v Williams - see Law Notes
- 30 May 2007 & R v Kissling).
While the Judge may require you to supply further information concerning the grounds on which the warrant is sought, they
must
not, in any circumstances, require you to disclose the name, address, or any other identifying detail of an informant
unless, and only to the extent that the information is necessary for them to assess:
the credibility of the informant, and/or
whether there is a proper basis for issuing the warrant.
(s98(2)(b))
Including CHIS information
Follow these steps to include CHIS information in a surveillance device warrant application.
Step Action
1
Do not name a CHIS in the surveil ance device warrant application or, include any information that could lead to their
identification. Explain to the Judge that you do not want the identity of the CHIS revealed.
2
As far as possible, report information received in theCHIS's own words.
3
You can use hearsay information to outline the grounds for the application, if it is of high reliability. Indicate its reliability
by stating:
the CHIS's credibility
the CHIS's reliability and whether they have given reliable information in the past, e.g. "In the past, Covert Human
Intelligence Source 'A' has supplied Police with information that has proved to be reliable"
whether the information has been confirmed by other means.
Note: Current Police guidance on providing sufficient information to the warrant issuer about a CHIS is contained in Law
Notes issued in respect of
R v Williams [2007] NZCA 52 (see Law Notes
- 30 May 2007) and
R v Kissling, so the
warrant issuer can assess reliability.
4
Indicate in the application who received the information from theCHIS, when and in what circumstances.
5
Be prepared to withdraw any surveillance device warrant application if the Judge demands details that identify the CHIS.
Good practice with preparing application
As an applicant for a surveil ance device warrant you should follow the steps in this table. It outlines good practice forwritten
applications and for orally communicating applications for surveil ance device warrants.
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Step Action
1
Accurately describe the offence you believe the surveillance relates to.
2
Explain what evidential material you expect to obtain and why, how and where you expect to obtain it and why. You
should be as specific as possible.
3
Make sure you describe the target person, place, vehicle or other thing where you expect to obtain the evidential
material, such as the correct address or if unavailable other description of the place or registration number of a car.
Note: See also 'All known targets of surveillance must be disclosed in the application' in this chapter for guidance.
4
Include a description of all relevant information held or received (whether favourable or unfavourable) and all relevant
inquiries made.
5
If there has been a delay in applying for a warrant, make any necessary inquiry to ensure everything contained in the
application is current and explain why that is so. Explain any delay between the last receipt of information and/or the last
inquiry and the application for a warrant.
6
Follow the guidance on including informant information above.
7
Disclose all relevant information, even if confidential. If you are concerned about inadvertent disclosure of confidential
information, then consider putting it in an attachment to the application, sealed and marked confidential. You should refer
in the application to the attachment.
8
Explain the reason for every expression of belief in the application. You should never express a conclusion without
saying why.
9
Scrutinise the grounds on which you apply for a warrant and consider, taking the role of 'devil's advocate', whether the
application meets the statutory criteria.
10 Refer the application to a legal advisor with Legal Services for checking before submitting the application to the Judge.
Errors commonly made when applying for surveillance device warrants
If you are the applicant for a surveillance device warrant, then
do not:
apply for too wide a warrant (i.e. be specific about describing person, place, vehicle or other thing requiring surveil ance,
or evidential material to be obtained)
state conclusions without saying why
include standard form material on the criminal activity being investigated unless it is relevant to the particular application
leave out relevant information
include misleading information
describe the belief of "the Police" or the belief of another person. Applicants must describe their own personal belief in a
state of affairs justifying the issue of a warrant, and the facts that make them hold that belief. If you refer to the belief of
another Police constable, or information received by another constable, then that constable should be identified
omit an explanation for a delay in applying for the warrant
omit information concerning the reliability of aCHIS
seek to undertake surveillance activities where there is limited information to support a belief that evidential material will
be obtained.
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De-confliction
Introduction
Where more than one active document shares the sameNIA target (i.e. two surveil ance device warrant applications or a
surveil ance device warrant application and a search warrant application), the de-confliction process aims to prevent the
interests of one investigation from conflicting with the interests of the other.
Open and closed applications explained
An 'open' classification means the application is revealed to other applicants for a warrant on the same target.
A 'closed' classification means the application is not seen by other applicants.
Every application for a surveillance device warrant is 'closed' by default.
With every application for a search warrant, the applicant must decide whether their application is 'open' or 'closed'.
See the table in the 'De-confliction process outlined' section below to verify who will or will not receive a de-confliction
message revealing another application for the same target.
De-confliction process outlined
The Search and Surveil ance system may send a de-confliction email to the owners of documents (and their supervisors)
which share the same NIA target, according to the table below. If you are advised of a conflict, you must act to resolve the
potential conflict.
Note: The online Search and Surveil ance system automatically identifies other search warrant and surveillance device
warrant applications made in the previous 3 months.
The system enables Police to comply with the provisions of the Search and Surveillance Act 2012. The law requires that an
issuing officer in respect of a surveillance device warrant is made aware of any applications for either surveillance device
warrants or search warrants in the preceding 3 months. An issuing officer in respect of a search warrant needs to be made
aware of applications for search warrants in the preceding 3 months only.
This diagram il ustrates the document owners or users who will or will not receive de-confliction messages from the Search
and Surveil ance system.
Original Document
New Application
Who is notified by email
(User 1)
(User 2)
Surveillance Device Warrant (closed)
Surveillance Device Warrant (closed)
Both user 1 and 2
'Open' Search Warrant
Surveillance Device Warrant (closed)
User 2 only
'Closed' Search Warrant
Surveillance Device Warrant (closed)
User 2 only*
Surveillance Device Warrant (closed)
'Open' Search Warrant
User 1 only
Surveillance Device Warrant (closed)
'Closed' Search Warrant
User 1 only*
* The owner of the 'closed' surveillance device warrant will be notified of the 'closed' search warrant application, as the
surveil ance device system overrides this setting.
Conflicting surveillance device warrant applications
Both document owners and their supervisors receive a message, if two Surveillance Device Warrant applications are made in
respect of the same target.
De-confliction action
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If you receive a de-confliction email you must contact the other applicant/supervisor and agree on a course of action. This
action will depend on individual circumstances and on the potential that each investigation has to impact on the other.
The agreed outcome may involve:
joint execution of both warrants
one of the applications being delayed/withdrawn,
or
co-ordination of the execution of both warrants.
Conflicting surveil ance device warrant/search warrant applications
Irrespective of the security status of a search warrant application, an applicant for a surveillance device warrant on the same
target will receive a notification of the search warrant application. The search warrant applicant will not receive any notification.
When a surveillance device warrant applicant (and supervisor) is made aware of a search warrant application, they must
carefully consider the implications of how the search warrant could affect their investigation and weigh this up against the need
to inform the other applicant.
The surveillance device warrant applicant or their supervisor will take all reasonable steps to contact the search warrant
applicant, or their supervisor or senior manager, if the warrant has not yet been executed.
De-confliction actions - surveil ance device warrant applicant
The outcome may involve:
where the search warrant has not yet been executed:
arranging for the search warrant applicant to withdraw or delay their warrant; or
allowing the proposed search warrant to proceed, and disclosing the warrant application in the new surveillance
device warrant application; or
where the search warrant has already been executed:
not advising the search warrant applicant but disclosing the search warrant and results in the surveillance device
warrant application.
All known targets of surveillance must be disclosed in the application
All
known targets of surveil ance
must be disclosed in the application for a surveil ance device warrant to ensure that the
online de-confliction process in the S&S system operates in compliance with the legal requirements of section
49(3) of the Act
(i.e. the applicant must disclose in the application the details of any other applications for a search warrant or a surveillance
device warrant that the applicant knows to have been made within the previous 3 months in respect of the person, place,
vehicle, or other thing proposed as the object of the surveillance; and the result of that application or those applications).
For example, it is unacceptable for the purpose of protecting the confidentiality of an investigation to only identify a phone
number as a target for an interception device on an application, when the identity of the user and the place applying to that
phone number are also known.
Under secti
on 49(4) of the Act you must, before making an application for a surveil ance device warrant,
make reasonable
inquiries within Police for the purpose of complying with section
49(3).
Note: 'Reasonable inquiries' includes making your
application online and responding to automated de-confliction alerts should they arise in the S&S system.
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Practice note for the hearing of applications
The Chief High Court Judge and the Chief District Court Judge in consultation with Police have issued a practice note that
governs the arrangements to apply in relation to the hearing of applications for surveil ance device warrants and declaratory
orders under the
Search and Surveillance Act 2012 in the District Courts and the High Court.
The practice note does not seek to describe the statutory requirements for the granting of warrants and orders (which are
defined in the Act), but rather to prescribe the arrangements for making, and for the hearing and security of applications.
These topics are included in the practice note:
advice of an intended application for a surveillance device warrant or declaratory order
application documentation for surveil ance device warrants
assessment of written applications for surveillance device warrants
applications for declaratory orders
the surveillance device warrant or declaratory order
subsequent applications for surveillance device warrants
oral applications for surveillance device warrants
surveil ance device warrant report.
View the 2012 Practice note: Procedures for processing surveillance device warrant applications. (PDF below)
2012_Practice_Note_(SS_Act_2012).pdf
288.03 KB
See the section '
Police internal protocols for communicating with Courts' below for further guidance contacting the Courts
over surveil ance matters.
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Police internal protocols for communicating with Courts
In all High Court matters filed in centres where Legal Services employees are based, Legal Services wil liaise with High Court
staff and arrange for the filing of applications, in consultation with the case OC. In provincial centres, Case OCs will arrange
and file their applications, in consultation with Legal Services.
Communications with any High Court Judge should be conducted by Legal Services advisors, wherever possible. Operational
employees should not communicate directly with, or appear before a High Court Judge without the involvement of a Legal
Advisor. If a Judge contacts the applicant directly, the applicant should request the involvement of a Police Legal Advisor in
the discussion. If a High Court Judge requires an appearance, a Legal Advisor should be present. If a District Court Judge
requires an appearance in a centre in which no Legal Services advisors are based, the Legal Services section responsible for
that centre should be advised. A request may be made for a Legal Advisor to appear by phone.
No operational employees should appear before a Judge on a surveillance device warrant matter without first consulting Legal
Services.
See the section 'Practice note for hearing of applications' in this chapter for further information about Court protocols for
processing surveil ance device warrant applications.
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Issuing surveil ance device warrant
A surveillance device warrant may be issued by a Judge of the District or High Court only. The Judge must be satisfied with
the grounds for the warrant and that the offence category restrictions under secti
on 45 and conditions under section
51 do not
prevent the issuing of the warrant. (
s 53)
Note:
If it is not practicable to get a physical warrant before execution, then it is sufficient to have:
a facsimile
a printout of electronically generated copy
a copy made by a constable or authorised officer at the direction of the Judge and endorsed to that effect.
(s
s58 and 105)
A warrant may not be issued for surveillance of a legally privileged communication unless there is a prima facie case that
a communication will be made or received for a dishonest purpose or for the purpose of planning or committing an
offence.
(s54)
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When is a surveil ance device warrant invalid?
A surveillance device warrant is invalid:
if having regard to the information contained in the application, the grounds or conditions for lawful issue of the warrant
were not satisfied at the time the surveil ance device warrant was issued. Those grounds being:
to suspect that an offence specified in the application and punishable by imprisonment has been, or is being, or will
be committed
and
to believe that the surveillance of the person(s), place(s), vehicle(s) or other thing(s) will obtain 'evidential material'
(defined in
'Surveil ance introduction') in respect of the offence(s) specified in the application
if the warrant contains a defect, irregularity, omission, or want of form that is likely to mislead anyone executing or
affected by the warrant as to its purpose or scope.
Note:If a warrant is invalid under secti
on 107 of the Act, then neither secti
on 204 of the Summary Proceedings Act 1957
(proceedings not to be questioned for want of form) nor section
379 of the Criminal Procedure Act 2011 (proceedings not to be
questioned for want of form) applies to that warrant. (s
s58 and 107)
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Safe execution of surveil ance device warrants - entry to
adjoining/neighbouring properties
Introduction
When it is known in advance that Police employees wil need to enter properties adjoining/near the target property for the safe
execution of a surveil ance device warrant (for example, TSU wil be involved in executing a surveil ance device warrant for an
interception device), it is good practice to seek a power of
entry to those adjoining/nearby properties.
Where specialist groups such as AOS or TSU are going to be involved in the execution of a surveillance device warrant they
must be consulted about how the warrant will be executed and whether entry to adjoining properties is necessary.
In situations of urgency, it is accepted that Police may need to briefly enter onto properties adjoining/near the target property,
for the safe execution of the warrant, even though no specific authorisation has been obtained.
Application to include entry to adjoining/neighbouring properties
If a warrant is to be sought to install a surveil ance device located at one address (e.g. 5 East Street), but in the process of
executing the warrant, Police need to trespass on adjoining or neighbouring properties (e.g. 3 and 7 East Street), then the
warrant application should also seek a warrant to
enter the adjoining or neighbouring properties (e.g. 3 and 7 East Street).
The justification for this is in secti
on 55(3)(h)(i) of the Act.
Wording application and warrants
Make it clear that you are seeking a power of entry only in respect of the adjoining/neighbouring properties for safe execution
of the surveillance device warrant and explain why and provide the Judge or issuing officer with the relevant legal basis.
Where appropriate, also make it clear that the entry to dwellings on the adjoining/neighbouring property is not sought.
For the warrant application form, use 'Additional information' section (paragraph 7). For example:
7. Additional information
I provide the following additional information:
Power of entry on other properties required for safe execution of surveillance device warrant
7.1 Police specialists wil be assisting with carrying out the activities authorised by this warrant. In order to ensure safe
execution of the warrant, those specialists may need to enter onto the following properties in addition to the properties
specified at paragraph 1:
a. [address].
b. [address].
c. [address].
(the "neighbouring properties")
7.2 The reasons why Police employees may need to enter these neighbouring properties are:
a. [explain why e.g. why is TSU required in the first place (e.g. covert operation, risks associated with the particular
individual or address), why these particular properties need to be entered. Could be to do with location of property
where device is to be installed (e.g. in rear section not easily viewed from street), may need to be able to observe
property from different angles in order to ensure covert nature of operation preserved and no one returns to house.
Should have a paragraph dedicated to each property and why necessary to enter that property. Should explain in
relation to each property what the entry will involve (e.g. just within the yard - don't need to enter premises).]
b. etc
7.3 This power to enter the neighbouring properties is sought in reliance on s.55(3)(h)(i) of the Search and Surveillance Act
2012, which permits a warrant to specify which premises or area may be entered.
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For the surveillance device warrant form use the following wording as a guide in paragraph (2.6). For example:
2.6 To enter (but not search) the following premises or areas:
(i) [the property (but not the dwelling) at address 1]
(ii) [the property (but not the dwelling) at address 2] etc.
In order to install, maintain, or remove the surveillance device/surveillance devices.
Note: If practicable seek legal guidance in regards wording the application and warrant for entry to adjoining or neighbouring
properties.
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Quick reference guide: surveil ance device warrants and warrantless
powers
Pre-application checks and set-up
Step Action
1
Setup a NIA Case if one does not already exist.
Note: Avoid identifying target details for forthcoming warrant applications in the NIA case as this may compromise the
security of subsequent warrant execution.
2
Check NIA for any information about the proposed target(s) and also any 'notings' for search warrants issued under other
Acts in the previous three months. This information must be included in the application.
3
Establish the NIA Person, Location, Vehicle or Item ID number for each target. This is the ID number which appears in
the blue bar at the top of the NIA response. If there is no NIA identifier, create one in NIA by creating a link in the
occurrence for the location, vehicle or item under surveil ance.
Apply for Surveillance Device Warrant
Step Action
1
Create the warrant application.
Because of their complexity, surveillance device warrant applications may be prepared outside the Search and
Surveillance (S&S) System using the enhanced features of the Microsoft Word platform.
The warrant
must be prepared in the S&S System to obtain the system’s generated unique identification number on the
warrant before it is provided to a Judge and accepted by the CMC and TSU,
unless the system cannot be accessed
and
there is urgency with making a written application. In this situation the warrant must be prepared in the S&S System as
soon as practicable after it becomes accessible.
Mandatory fields in the system may be completed by referencing as appropriate to the ‘Word’ document (e.g. “Refer to
Appendix A”).
Note: Preparing the warrant in the Search and Surveillance System ensures:
data is collected for the annual reporting of search and surveillance powers by the Commissioner to Parliament
(s170) managing de-confliction involving any other application for a search warrant or a surveillance device warrant within
3 months (
s 49(3)).
2
Review and follow-up on any de-confliction notifications advising of other active warrant applications for the same
target(s). Contact the other applicant(s) and determine whether or not to proceed.
Notes:
The online S&S system automatically identifies other search warrant and surveillance device warrant applications
made in the previous 3 months.
You may also need to check NIA for any additional targets identified in the three-month history and include
explanation in the "Additional Information" section of the application.
Approvals
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Step Action
1
Submit the draft application to the approving officer (see I'nternal Approvals'). Review and revise as required.
2
Gain approval to proceed, see the section titled 'Internal approvals' in this chapter for the level of approval and
requirements.
3
Submit the draft application and warrant to Legal Services for review.
4
Finalise the application and recheck the three-month history. Entries in this section will be automatically refreshed prior to
printing and may change as time progresses during preparation of the warrant.
5
Print the application and warrants, sign the application and present them for authorisation to a Judge. Use a Judge from
a District or High Court depending on where proceedings are likely to be heard.
6
Review/revise the warrant as required, to gain authorisation.
7
Record any conditions specified by the Judge in the Search and Surveil ance system.
8
Execute the warrant.
Using warrantless surveil ance device power
Step Action
1
Gain approval to proceed, see the section titled 'Internal approvals' in this chapter for the level of approval and
requirements.
2
Use powers without warrant if required (e.g. secti
on 48 in an emergency situation).
3
S
ee 'Categories of surveil ance with a device' for instructions relating to 'Category 3: Surveil ance using a device that
normally requires a warrant, but may be done without warrant in situations of urgency or emergency'.
Surveillance device warrant notifications and reporting
Step Action
1
Record the outcomes and other information in the S&S system.
2
Within one month after execution (or earlier if this is was a condition of the issuing officer), complete through the online
S&S system:
a surveil ance device warrant report (
Note: report back to the same Judge who authorised the warrant)
a surveil ance device warrant application notification.
Note: The Detective Inspector or Acting Detective Inspector (District Crime/Field Crime Manager) who approved the
surveillance device warrant application should also approve the report to the Judge and the notification to the
Commissioner.
3
See the section:
'Surveil ance device warrant report' of
'Surveil ance reporting' for further guidance with the reporting procedure
'Notification to Commissioner' of
'Surveil ance reporting' for further guidance with completing the notification.
Warrantless surveillance device power notifications and reporting
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Step Action
1
Record the outcomes and other information in the S&S system.
2
Within one month after exercising warrantless surveil ance device power complete:
a warrantless surveillance device power report (POL SD4)
a warrantless surveillance power notification (POL SD5),
notifying the use of warrantless powers used and the outcomes associated with the exercise of the warrantless powers
online in the S&S system.
Note: The Detective Inspector or Acting Detective Inspector (District Crime/Field Crime Manager) who approved the
surveillance device warrantless power should also approve the report to the Judge and the notification to the
Commissioner.
3
See the section:
'Warrantless surveil ance device power report' of
'Surveil ance reporting' for further guidance with the reporting
procedure
'Notification to Commissioner' of
'Surveil ance reporting' for further guidance with completing the notification.
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Retention and security of applications for warrants
The responsibility for retaining and securing the applications once they have been presented for signing remains with the
issuing officer.
For further guidance on the retention and security of applications for warrants and action to be taken whenever security of the
application retained by an issuing officer may be compromised, see the 'Search' chapter,
Part 2 - Search warrants.
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Disclosure and requests for copies of surveil ance device warrant
applications
Surveillance device warrant applications are subject to disclosure under t
heCriminal Disclosure Act 2008. They should
generally be disclosed, subjected to the redaction of sensitive information such as Covert Human Intelligence Source (CHIS)
information. Applications may also be the subject of a request under the
Official Information Act 1982 or t
he Privacy Act 2020.
Surveillance device warrant applications or parts of applications containing sensitive information can be withheld under all
three Acts (Criminal Disclosure Act 2008, Official Information 1982 and Privacy Act 2020).
Before any of the contents are released you must:
consult the primary owner who prepared the surveillance device warrant application, and
if the disclosure may reveal the identity of aCHIS or contains any CHIS information, then also obtain approval from the
O/C Human Source Management Unit (HSMU)
consider consulting with Police Legal Section if necessary.
Note: Information must not be electronically released, unless the minimum approved redaction software at Police
being Adobe Pro 9 is applied which permanently redacts texts and images from PDF files. Only Adobe Pro 9 or an
upgraded version must be used for all cases of electronic redaction.
See:
Electronic redaction and disclosure for specific instructions relating to redaction using Adobe Pro
‘ Criminal disclosure’ chapter for information about restrictions on disclosure
‘ Privacy and official information’ chapter for guidance with personal and official information requests
Part 8 Police Human Source information in warrants orders and disclosurefor CHIS and human related source
disclosure.
See also:
Adobe Redaction Training Material.
Printed on : 12/07/2021
Printed from
: https://tenone.police.govt.nz/pi/surveil ance-device-warrants
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link to page 362 link to page 362 link to page 363 link to page 363 link to page 363 link to page 363 link to page 364 link to page 364 link to page 364 link to page 364
Table of Contents
Table of Contents
2
Executive summary
4
Definitions and acronyms
5
Use of radar as a tracking device
6
When no surveil ance device warrant required
6
When surveil ance device warrant or warrantless power should be used
6
Surveil ance from aircraft, drones etc.
7
Introduction
7
Application of Act for surveil ance from an aircraft, RPAS, UAV, UAS, drones and model aircraft
7
Civil aviation rules for RPAS, UAV, UAS, drones and model aircraft
7
Internal approval to use private aircraft, RPAS, UAV, UAS, drones and model aircraft for surveillance operations
8
Surveil ance for law enforcement purposes
8
Heat-sensing device
8
Camera, video camera, binoculars and night vision devices
8
Surveil ance by radar and from aircraft, drones etc
The content of this chapter must not be disseminated external to Police without prior approval from the National
Manager: Criminal Investigations Group.
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Executive summary
This part includes instructions for surveillance by radar, from manned aircraft, drones, RPAS, UAS, UAV and model aircraft.
Police must be aware of these key, critical points for surveillance by radar and from aircraft, drones etc.:
If the use of radar of a specific target (e.g. ship) in respect of criminal offending that is intending to obtain information that
is evidential material in respect of that offending, then a surveillance device warrant should be obtained or a warrantless
power should be invoked where the grounds in section
48(2) exist.
An aircraft, RPAS, UAV, UAS, drones or model aircraft is not a surveillance device, but the equipment installed or carried
in these aerial vehicles such as a heat-sensing device, binoculars, night vision device, camera and video camera are
surveillance devices.
Civil Aviation Rules governing the use of RPAS, UAV, UAS, drones, model aircraft and other unmanned aircraft
must be
complied with for conducting surveil ance activities.
If it is intended to use hired private aircraft (helicopter and fixed wing), RPAS, UAV, UAS, drones and model aircraft for
Police surveillance operations then you
must seek initial approval from a Detective Inspector or Acting Detective
Inspector (District Crime/Field Crime Manager).
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Definitions and acronyms
These following definitions apply to this part of the Surveillance chapter.
Drones
Drones are unmanned aerial vehicles (UAV). Essentially, a drone is a flying robot. The aircraft may be remotely
controlled or can fly autonomously through software-controlled flight plans in their embedded systems working in
conjunction with GPS.
Radar
Radar has the ordinary dictionary meaning of:
A method for detecting the position and velocity of a distant object. A narrow beam of extremely high-
frequency radio pulses is transmitted and reflected by the object back to the transmitter. The direction of the
reflected beam and the time between transmission and reception of a pulse determine the position of the
object.
The equipment used in such detection.
RPAS
Remotely Piloted Aircraft System. A remotely piloted aircraft is an unmanned aircraft that is piloted from a remote
station. While some RPAS can be programmed to operate automatically or on an automatic basis, the operator
may still intervene. RPAS is the official term for these remotely piloted aircraft. They are also known as UAVs,
UAS and drones.
Ship
Ship has the same meaning as defined in secti
on2 of the Crimes Act 1961:
"Ship means every description of vessel used in navigation, however propelled; and includes any barge, lighter,
dinghy, raft, or like vessel; and also includes any ship belonging to or used as a ship of the armed forces of any
country."
UAS
Unmanned Aerial System.
UAV
Unmanned Aerial Vehicle.
Unmanned An aircraft designed to operate with no pilot on board. It includes RPAS (where operators are able to intervene in
aircraft
the control) and also fully autonomous aircraft.
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Use of radar as a tracking device
When no surveil ance device warrant required
If radar is being used for general navigation, a surveil ance device warrant is not required.
If Police are notified that a ship has been involved in a minor matter and radar is used to help locate and track the ship so that
the people responsible can be spoken to, no warrant is required. The tracking information is unlikely to be of any evidential
value and the thresholds required in section
48of the Search and Surveillance Act (the Act) are unlikely to be reached.
If radar is used in a search and rescue operation, no warrant is required.
When surveillance device warrant or warrantless power should be used
If a specific ship is being targeted in respect of criminal offending and the use of radar will obtain information that is evidential
material in respect of that offending, a surveillance device warrant should be obtained or a warrantless power should be
invoked where the grounds in section
48(2)exist, e.g. if the ship is involved in the trafficking of drugs or is visiting locations
where cannabis is being cultivated.
If there is offending of some nature and radar is likely to be a helpful tool to locate and apprehend those responsible, a
surveillance device warrant is not required if the tracking information is not of any evidential value. However, if any of the
emergency situations in section
48(2)apply, a warrantless power should be invoked.
If there is a planned operation involving criminal offending, and it is necessary to track a ship as part of that operation, a
surveillance device warrant should be obtained (whether radar or some other device is used to track the ship).
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Surveil ance from aircraft, drones etc.
Introduction
This section applies to Police:
carrying out surveillance from:
the 'Eagle' helicopter at Auckland
military aircraft (helicopter and fixed wing) engaged for Police operations
private aircraft (helicopter and fixed wing) hired for Police operations
RPAS, UAV, UAS, drones and model aircraft
obtaining approval to use RPAS, UAV, UAS, drones and model aircraft for Police operations.
An aircraft, RPAS, UAV, UAS, drones and model aircraft is not a surveillance device, but the equipment installed or carried in
these aerial vehicles such as a heat-sensing device, binoculars, night vision device, camera and video camera are surveillance
devices. The
Search and Surveillance Act 2012 regulates the use of surveillance devices (interception, tracking and visual) for
law enforcement purposes.
See also these chapters:
Police air operations
Remotely Piloted Aircraft Systems (RPAS).
Application of Act for surveillance from an aircraft, RPAS, UAV, UAS, drones and
model aircraft
Surveillance in the circumstances set out in secti
on46 is not permissible unless authorised by a warrant or under the
emergency warrantless powers. Activities for which a warrant is required in order to obtain evidential material include:
Use of a surveillance device that involves trespass to land or goods. For example, conducting visual surveillance from a
drone flying near ground level over private property.
Observing private activity in private premises, and any recording of that observation, by means of a visual surveil ance
device. For example, visual surveillance that involves filming what is going on inside private premises through the
windows of those premises from a drone.
Observing private activity in the curtilage of private premises and any recording of that observation is any part of the
observation or recording is by means of a visual surveillance device, and the duration of that observation exceeds 3
hours in a 24 hour period or 8 hours in total. For example, visual surveillance of the goings on in the enclosed back yard
of a private dwelling from a high flying drone for an extended period.
Using an interception device to intercept a private communication. For example, if it were possible to record private
communications using a recording device.
Use of surveillance in other circumstances where there is not a criminal investigation, no evidential material is to be obtained
and the circumstances are such that it is unlikely that private activities or private communications will be involved will be
permissible without a warrant. For example, using a heat sensing device to locate and rescue missing persons, locate and
recover bodies or to protect life and property.
Civil aviation rules for RPAS, UAV, UAS, drones and model aircraft
The Civil Aviation Authority of New Zealand has responsibility for administering and enforci
ngCivil Aviation Rules governing
the use of RPAS, UAV, UAS, drones, model aircraft and other unmanned aircraft.
The rules are divided into groups of related rules called 'Parts'. There are two Parts:
Part
101 'Gyrogliders and Parasails, Unmanned Aircraft (including Bal oons), Kites, and Rockets - Operating Rules'. Part
101 sets out the rules under which RPAS under 25 kg can be operated without requiring certification. There are
limitations on use of RPAS under this Part such as the RPAS operator must only use it in daylight; must keep the RPAS
within sight; must have consent from any person or property owner they want to fly above; and operate the RPAS at 120
metres (400 feet) or lower. RPAS weighing between 15 and 25kg must also be constructed or inspected, approved and
operated under the authority of a person or association approved for this purpose by the Director of CAA.
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Part 102
'Unmanned Aircraft Operator Certification'. Part 102 provides a means for an operator of an unmanned aircraft
(including RPAS) to apply for operator certification to use the unmanned aircraft in circumstances where that would not
be permitted by Part 101. For example, where the operator wants to use a larger RPAS; fly the RPAS at night or out of
line of sight; fly the RPAS above 120 metre (400 feet); or fly above people or properties without getting consent.
Internal approval to use private aircraft, RPAS, UAV, UAS, drones and model aircraft
for surveillance operations
If it is intended to use hired private aircraft (helicopter and fixed wing), RPAS, UAV, UAS, drones and model aircraft for Police
surveillance operations then you
must seek initial approval from a Detective Inspector or Acting Detective Inspector (District
Crime/Field Crime Manager.
The Detective Inspector should consult with:
Response and Operations Group to confirm that the private company, pilot or operator are certified and qualified to
conduct the kind of Police operations proposed in compliance with CAA rules.
A Legal Adviser for clarification on any issues around whether a surveillance device warrant is required for the activity
proposed.
See also:
'Internal approvals' i
n 'Surveil ance device warrants' of this chapter
'Police air operations' chapter
'Remotely Piloted Aircraft Systems (RPAS)' chapter.
Surveillance for law enforcement purposes
Surveillance from an aircraft, RPAS, UAV, UAS, drone and model aircraft using a device to obtain evidential material for
criminal proceedings is governed by the Act. Only the more common visual surveillance devices used in these aerial vehicles
are covered by these guidelines.
Heat-sensing device
A heat-sensing device used for observing private activity is likely to be a visual surveil ance device under the Act. However, the
use of such a device from a flying aircraft, RPAS, UAV, UAS, drone and model aircraft to observe a fleeing offender in a public
place or in the curtilage of private premises does not usually require a warrant or the exercise of a warrantless surveillance
power, because the surveil ance:
does not involve a trespass to land or goods; and
the activity of a fleeing offender is not 'private activity'.
Note: A warrant would be required if a visual surveillance device is being used to observe 'private activity' in the curtilage of
private premises for more than 3 hours in 24 or 8 hours in total for the purpose of a single investigation.
Camera, video camera, binoculars and night vision devices
Cameras, video cameras, binoculars and night vision devices are visual surveillance devices. These devices must not be used
from an aircraft, RPAS, UAV, UAS, drone and model aircraft to observe, or observe and record private activity in private
premises without a warrant or private activity in the cartilage of private premises for an extended period, unless a warrantless
surveil ance power in some situations of emergency or urgency exists under the Act.
Visual surveillance may be carried out from an aircraft, RPAS, UAV, UAS, drone and model aircraft to observe or observe and
record:
any activity in a public place; or
any activity in non-private premises (i.e. those to which the public are frequently permitted to have access) or the
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Surveil ance by radar and from aircraft, drones etc
curtilage of non-private premises; or
private activity in the curtilage of private premises, if the duration of the observation, for the purpose of a single
investigation, or connected series of investigations does not exceed:
3 hours in any 24 hour period; or
8 hours in total.
Note: The cost/benefit and restricted flying time for aircraft, RPAS, UAV, UAS, drone and model aircraft would assist with
complying with these time periods.
Printed on : 12/07/2021
Printed from
: https://tenone.police.govt.nz/pi/surveil ance-radar-and-aircraft-drones-etc
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Surveillance squad
Table of Contents
Table of Contents
2
Executive summary
4
Overview
5
Introduction
5
Objectives of surveillance
5
Surveillance preparation
5
Related information
5
Requesting a surveillance squad deployment
6
Things to consider before seeking surveillance squad help
6
Surveillance squads
7
Confidentiality of investigation techniques
7
Selection and appointment of surveillance officers
7
Probation
7
Surveillance resources
9
Sectio
9
n 6(c)
9
Official
9
Financi
Inform al responsibilities
9
ation
Act
1982
Surveillance squad
The content of this chapter must not be disseminated external to Police without prior approval from the Director: National
Criminal Investigations Group.
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Surveillance squad
Executive summary
This part of the surveillance chapter applies to the use of dedicated surveillance squads. It contains information about surveillance
squads, and about how to prepare for a surveillance operation.
Key, critical points for Police to note:
‑ You must always prepare your surveillance thoroughly so that you are not detected.
‑ The safety and effectiveness of a squad depends on the anonymity of its members and secrecy about their vehicles, equipment
and methods.
‑ All squad members must maintain this protection and ensure that they do not reveal information to any other person.
‑ In normal circumstances, surveillance officers should not be required to give evidence.
‑ Surveillance squad premises must not be located within publicly identifiable Police premises.
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Surveillance squad
Overview
Introduction
Surveillance is the observation of people, vehicles, places or objects in order to obtain information about the activities and identities
of individuals.
Section 6(c) Official Information Act 1982
.
Surveillance is planned, directed and secretive with the purpose of discovering the nature and extent of criminal activity to identify the
people involved, and to gather evidence.
Objectives of surveillance
The objectives of surveillance are to:
S
e
c t
i
o
n 6
(
c
) O
f
f
Survieillance preparation
c
Section 6(c) Official Information Act 1982
i
a
Relal
Ited information
See the
n additional parts of the 'Surveillance' chapter for guidance on surveillance law and good practice under the Search and
f
Surveillance Act 2012.
o
r
m
a
t
i
o
n
A
c
t
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8
2
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Surveillance squad
Requesting a surveillance squad deployment
Things to consider before seeking surveillance squad help
Before you request the assistance of a surveillance squad consider:
S
e
c t
i
o
n
6
Note: Y
( ou must be available to provide any support requested by the surveillance team throughout its deployment.
c
Then d
) ecide:
O
f S
f e
ic ct
i
a
o
l
n
I6
n
(
fc
o
)
rO
m
f
a
f
ti
ic
o
i
n aAl
c
I
t
n
1
If, aftefr considering these factors, you decide that the assistance of a surveillance squad would be appropriate, request a deployment
9
o
by com
8 pleting the required Request for Surveillance Form and submitting to the O/C Surveillance. To obtain the request form, go to
r
2
m
S
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Surveillance squad
Surveillance squads
Section 6(c) Official Information Act 1982
Confidentiality of investigation techniques
Section 6(c) Official Information Act 1982
Selection and appointment of surveillance officers
Applicants for surveillance squad positions must be identified through nationally advertised positions and selected in terms of
approved appointment processes.
The successful applicant's appointment is dependent on the candidate passing the pre‐selection assessment and agreeing to the
terms of the 'Conditions of Service Agreement'. This agreement provides for:
S
e
c t
i
o
n
The pr6e‐selection assessment:
(
‑
c will include:
)
S
O
e
f
c
f
t
i ‑ may iinclude:
c
‑
oteam building activity
i
n
a
S
6
l
e
Prob
(
I ation
c
c
t
A consntable m
) ust:
f
i
O
o
‑
oinitiallfy be appointed to the surveillance squad for a twelve (12) month probationary period
r
n
f
‑ be asse
6 ssed by their supervisors during the probationary period to establish whether they are suitable for permanent
m
i
appoin(tment to the surveillance squad
a
c
‑t receivcie appropriate training and regular feedback regarding performance during the probationary period
i
)
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Section
o
6(c) Official Information Act 1982
, the
i
consta
1 b
n le mu
r st be advised that the probationary period has finished and that their position is confirmed.
9
a
6
m
Unless
8
( excepl t
a ional circumstances exist, every applicant must be permanently appointed constables before being considered for a
2
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Surveillance squad
surveillance squad position.
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Surveillance squad
Surveillance resources
Section
6(c)
Official
Informatio
n Act 1982
Surveillance vehicles may not be used for private purposes.
A surveillance officer can only be 'on call' in accordance with the terms of the sworn members employment agreement. Surveillance
cars being used by squad members 'on call' do not attract fringe benefit tax (
FBT).
Equipment
Surveillance officers are responsible for the security and maintenance of all equipment issued to them and must report losses to their
supervisor as soon as practicable.
Section 6(c)
Official
Information
Act 1982
Financial responsibilities
All expenses associated with a surveillance squad are national expenses. Following a written application, the officer in charge of
surveillance may be issued with a permanent advance from which all squad costs should be met. The level of the permanent advance
will be set from time to time by the Executive Director: Finance.
If a purchase or charge will exceed the permanent advance, the Manager: Surveillance may authorise a special advance. The officer in
charge of surveillance must keep accounting records as required by the Director: Assurance at PNHQ.
Advice on managing the finances of a surveillance squad must be obtained from the Manager: Surveillance, National Criminal
Investigations Group, PNHQ.
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Surveil ance reporting
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Table of Contents
Table of Contents
2
Executive summary
4
Surveil ance device warrant report
5
Reporting procedure
5
Warrantless surveillance device power report
7
Reporting procedure
7
Serious breach of surveil ance device warrant conditions or statutory provisions
9
Reporting multiple surveil ance and targets from one event or operation to a Judge
10
Reporting multiple surveil ance device applications and warrants from one event or operation
10
Reporting multiple exercises of warrantless surveillance device powers from one event or operation
10
Example scenario
10
Notification to Commissioner
11
Warrantless surveil ance power notification
11
Notifying multiple surveil ance device applications and warrants from one event or operation
12
Notifying multiple exercises of warrantless surveil ance powers from one event or operation
12
Example scenario
12
Surveil ance device warrant notification
12
Surveil ance reporting
The content of this chapter must not be disseminated external to Police without prior approval from the National
Manager: Criminal Investigations Group.
3/13
Surveil ance reporting
Executive summary
The Act requires the reporting of surveillance activities to:
a Judge (referred to as 'report-backs') and includes two types of surveillance reports:
activities authorised by surveil ance device warrant (
s59) the exercise of warrantless surveillance device powers
(s60)
the Commissioner (referred to as notifications) for the purpose of preparing the annual report.
This part will outline the reporting requirements and procedures.
Police must be aware of these key, critical points for surveillance reporting:
A surveillance device warrant report must be completed for a Judge within 1 month of the warrant being issued or sooner
should the Judge make it a condition. (sections
59 and 55(2))
A warrantless surveillance device power report must be posted, emailed or delivered to a Judge within 1 month after the
date of the last day of any period of 48 hours or less in which the surveil ance device was used.
(s60) The Detective Inspector or Acting Detective Inspector (District Crime/Field Crime Manager) who approved the
surveillance device warrant application, or sought or approved the use of emergency powers under section
48 should
complete and sign the report.
There are two types of surveillance notifications that must be made to the Commissioner as soon as practicable:
Warrantless surveil ance power notification. (
s169(1))
Surveillance device warrant application notification.
(s172). Note: The Commissioner must provide an annual report to parliament with information gathered from the notifications.
(s170)
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Surveil ance reporting
Surveil ance device warrant report
The surveillance device warrant report informs the Judge of the outcome authorised by warrant within 1 month of expiry of the
warrant. (
s 59)
Note: The Judge may have made it a condition of the warrant that a report is to be provided sooner than 1 month from the
expiry of the warrant. (
s55(2))
The Detective Inspector or Acting Detective Inspector (District Crime/Field Crime Manager) who approved the surveillance
device warrant application should approve the report that has been prepared and signed by the applicant.
Reporting procedure
When completing the report, follow the steps in this table.
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Surveil ance reporting
Step Action
1
Use the surveillance device warrant report in the online Search and Surveillance (S&S) system.
2
Direct the report to the Judge (by name) who issued the warrant.
Note: Should that Judge be unavailable then the report must be directed to another Judge of the same Court.
3
Enter your name, agency (NZ Police) and location.
4
Specify:
date of application for a surveillance device
number of days warrant was granted for
date the surveillance device warrant expired
type of surveillance devices used (interception, visual, tracking device).
5
Provide the name or description of person, place, vehicle, thing or person under surveillance (target).
6
Advise whether:
warrant was executed, or reason if not executed
evidential material was obtained as a result of carrying out activities authorised by warrant and if obtained whether
that material was specified in the warrant.
(s55(3)(e))
7
Describe in reasonable detail the material obtained, where from and whether the material ought to be destroyed or
retained, giving reasons; if no material was obtained then describe what was expected to be obtained.
Note: Material is not limited to evidential material.
8
Describe the circumstances in which the surveillance device was used. Examples of circumstances that may apply are
provided with the form on the S&S System.
9
Specify whether criminal proceedings as a result of evidential material obtained under the warrant:
have been brought
are under consideration
have not been brought.
10 Confirm whether the warrant required any other information and if so specify other information required.
11 Complete location and date of signing the report.
12 The original report must be delivered to a contact person at the Court in a secure envelope addressed to the Judge and
bearing the number assigned to the original application.
Note: This is a requirement set out in paragraph 9.1 of the 2012 Practice note: Procedures for processing surveil ance
device warrant applications:
2012_Practice_Note_(SS_Act_2012).pdf 288.03 KB
Duplicate copy to file.
Note: The S&S system automatically collates returns for the Commissioner's annual report to
parliament.
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Surveil ance reporting
Warrantless surveil ance device power report
The warrantless surveillance device power report informs the Judge of the exercise of warrantless powers (i.e. Category 3
surveillance device powers) within 1 month after the date of the last day of any period of 48 hours or less in which the
surveil ance device was used. (
s60)
The Detective Inspector or Acting Detective Inspector (District Crime/Field Crime Manager) who sought or approved the use of
emergency powers under section
48should complete and sign the report.
Reporting procedure
When completing the report, follow the steps in this table.
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Surveil ance reporting
Step Action
1
Use the warrantless surveillance device power report in the online Search and Surveil ance (S&S) system.
2
Direct the report to a Judge of the District Court or High Court.
3
Enter your name, agency (NZ Police) and location.
4
Specify the date and time the surveillance commenced and expired.
Note: To remain lawful the surveillance must not exceed 48 hours.
5
Select the type of surveil ance devices used (interception device, visual surveillance device, tracking device).
6
Provide the name or description of person, place, vehicle, thing or person in possession of thing (target).
7
Select one or more of the options on the form advising the reason for exercising the warrantless surveillance device
power and specify the offence(s) suspected of having been, being or about to be committed.
8
Describe the information that led you to form your suspicion and belief that provided the reason for exercising the
warrantless surveil ance device power.
9
Include the following information:
whether the use of the surveillance device resulted in:
obtaining evidential material of the relevant offence (in the case of use of a surveillance device in a situation
set out in section 48(2)(a), (d), or (e)); or
preventing the offending from being committed or continuing, or averting the emergency (in the case of use of
a surveil ance device in a situation set out in section 48(2)(b)); or
facilitating the seizure of the arms (in the case of use of a surveillance device in a situation set out in section
48(2)(c)); and
the circumstances in which the surveillance device was used.
10 Outline additional information.
Note: This requirement only applies when a previous warrantless surveillance device report has been furnished and the
Judge requires further information.
11 Specify location and date of signing the report.
12 The original report must be posted, emailed or delivered to Judge.
Note: If the report contains information that could put continuing or future investigations at risk, then deliver to Judge by
hand.
Duplicate copy to file.
Note: The S&S system automatically collates returns for the Commissioner's annual report to parliament.
8/13
Surveil ance reporting
Serious breach of surveil ance device warrant conditions or statutory
provisions
If the Judge considers that the surveillance activities carried out were in breach of the conditions of the warrant or statutory
warrantless power, then the Judge may report on the breach to the Commissioner. (s
s61& 62)
The Commissioner may delegate the National Manager: National Criminal Investigations Group the power to investigate and
report any alleged breaches via the Manager: Covert Operations Group. The outcome of the investigation will be notified to the
Judge reporting the breach.
The Judge may also order that the subject of a serious surveillance breach be notified if the public interest outweighs potential
prejudice to:
any Police investigation
safety of informants (CHIS) or undercover Police officers
supply of information to Police
any international relationships of the Police.
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Surveil ance reporting
Reporting multiple surveil ance and targets from one event or operation
to a Judge
Reporting multiple surveil ance device applications and warrants from one event or
operation
Every application made for a surveillance device warrant requires a separate surveillance device warrant report to a Judge
with an outcome that captures the result of that application and warrant (i.e. multiple applications and warrants for surveillance
devices or period of warrant and targets from one event or operation must be reported individually to the Judge).
Note: Unlike the multi-warrant search system the surveil ance system only permits one surveillance device warrant to be
associated with each report.
Notifications must be made online in the S&S system. Note that the S&S system automatically collates returns for the
Commissioner's annual report to parliament.
Note:
If the surveillance is authorised by warrant, then the report should be addressed to the same Judge issuing the warrant,
or if that Judge is unavailable to a Judge of the same Court.
If a warrantless surveillance device power is exercised under emergency or urgency and then a surveillance device
warrant is obtained for the same event or operation, both the warrantless surveillance device power report and
surveil ance device warrant report must be completed. Send both reports to the same Judge.
Reporting multiple exercises of warrantless surveillance device powers from one
event or operation
Only one warrantless surveil ance device power report to a Judge is required to be completed in situations involving the
exercise of more than one warrantless surveillance device power being exercised against one or multiple targets arising out of
one event or one operation.
A report covering multiple targets for one event or one operation must also include the number of associated targets (i.e.
persons, places, vehicles and other things) that were the object of the surveil ance.
Example scenario
This is a scenario in which multiple warrantless surveillance device powers are exercised at a single event or operation.
Example Description
Scenario AOS are called to an armed incident at a house and 10 officers use their telescopic sights on their firearms to view 3
offenders inside the house through windows. In addition, interception devices are installed to intercept conversations
of the offenders inside. The entire operation runs for 8 hours.
In this scenario only one warrantless surveil ance device power report is required.
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Surveil ance reporting
Notification to Commissioner
There are two types of surveillance notifications made to the Commissioner:
Warrantless surveil ance power notification. (
s169(1))
Surveillance device warrant application notification.
(s172)
Note: These notifications must be made as soon as practicable after:
the warrantless surveillance power has been exercised, or
the surveillance device warrant has been executed or the application has been refused.
Warrantless surveillance power notification
When completing the notification, follow the steps in this table.
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Surveil ance reporting
Step Action
1
Use the warrantless surveillance power notification in the online Search and Surveillance (S&S) system.
2
Complete details of:
person on whose behalf the form is filled out
incident details
target details (e.g. person, place, vehicle, or other thing).
3
PART A (about power exercised) – enter:
date and time surveillance commenced and expired
reason and circumstances surrounding exercise of warrantless power (select one or more of the options provided)
Note: If the option ‘other’ is selected then a summary of reason(s)/circumstance(s) must be provided and a 258 report
submitted to the supervisor. Selecting this option is likely to indicate that the reason(s) and circumstance(s) for exercising
the warrantless surveil ance power is unlawful
whether warrantless surveillance power resulted in the obtaining of evidential material
types and number of surveil ance devices used (i.e. interception device, visual surveil ance device, tracking device)
and whether for 24 hours or less; or 24 to 48 hours
whether any criminal proceedings have been brought, or are being considered as a consequence of the seizure of
that evidential material (
s169(3)(c))
the number of persons charged in criminal proceedings where the collection of evidential material relevant to those
proceedings was significantly assisted by the exercise of a warrantless surveillance power
(s170(e)).
4
Note the S&S system automatically collates returns for the Commissioner's annual report to parliament.
5
PART B (about whether or not a Judge has reported a breach to the Commissioner)
If a Judge reports a breach, the details must be entered alongside the corresponding surveillance device warrant in the
S&S online system.
The information required includes:
when the Judge has reported a breach
details of the lack of authorisation reported; and
the result of the investigation into the breach.
Note: A letter will be prepared for the National Manager: NCIG to sign on behalf of the Commissioner, advising the
Judge the result of the investigation and, if the breach is upheld, what steps are being taken to prevent a similar breach
from reoccurring. A copy of the letter must be forwarded to the District Commander or National Manager responsible for
the employee involved in the reported breach.
Notifying multiple surveillance device applications and warrants from one event or
operation
Every application made for a surveillance device warrant requires a separate notification to the Commissioner with an outcome
that captures the result of that application and warrant (i.e. multiple applications and warrants for surveillance devices or
period of warrant and targets from one event or operation must be notified individually to the Commissioner).
Note: Unlike the multi-search warrant system, the surveillance system only permits one surveillance device warrant to be
associated with each notification.
Notifications must be made online in the S&S system. The system automatical y collates returns for the Commissioner's
annual report to parliament.
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Surveil ance reporting
If a warrantless surveillance power is exercised under emergency or urgency and then a surveillance device warrant is
obtained for the same event or operation, both the warrantless surveillance power notification and surveillance device warrant
notification must be completed in the S&S System.
Notifying multiple exercises of warrantless surveillance powers from one event or
operation
Only one warrantless surveillance power notification to the Commissioner is required to be completed in situations involving
the exercise of more than one warrantless surveillance power being exercised against a single or multiple targets arising out of
one event or one operation.
A notification covering multiple targets for one event or one operation, must also include the number of associated targets (i.e.
persons, places, vehicles and other things) that were the object of the surveil ance.
Example scenario
This is a scenario in which multiple warrantless surveillance powers are exercised at a single event or operation.
Example Description
Scenario Section 6(c) Official Information Act 1982
Surveillance device warrant notification
When completing the notification, follow the steps in this table.
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Surveil ance reporting
Step Action
1
Use the surveillance device warrant Outcomes notification on the online Search and Surveillance (S&S) system.
2
Complete details of:
person on whose behalf the form is filled out
incident details.
3
PART A (about making of application) - enter:
whether application granted, refused or withdrawn and date
Note: If application has been withdrawn (i.e. application has not been presented to Judge), then no further information
from this point on the notification requires to be completed - go to step 6.
name of Judge who considered application, whether from the District or High Court and location of court
date and time surveil ance commenced and expired.
Note: If application has been refused by Judge, then no further information from this point on the notification requires to
be completed.
4
PART B – (about execution of warrant) – enter:
whether warrant was executed
Note: If warrant was not executed, then no further information from this point on the notification requires to be
completed
types and number of surveil ance devices used (i.e. interception device, visual surveil ance device, tracking device)
and whether for less than 1 day, 1 to 3 days, 3 to 7 days, 7 to 21 days, 21 to 60 days
whether any criminal proceedings have been brought, or are being considered as a consequence of the seizure of
that evidential material (
s169(3)(c))
the number of persons charged in criminal proceedings where the collection of evidential material relevant to those
proceedings was significantly assisted by the exercise of a warrantless surveillance power
(s170(e)).
5
Note the S&S system automatically collates returns for the Commissioner's annual report to parliament.
6
PART C - (about whether or not a Judge has reported a breach to the Commissioner)
If a Judge reports a breach, the details must be entered alongside the corresponding surveillance device warrant in the
S&S online system.
The information required includes:
when the Judge has reported a breach
details of the condition(s) or applicable statutory provision breached; and
the result of the investigation into the breach.
Note: A letter will be prepared for the National Manager: NCIG to sign on behalf of the Commissioner advising the Judge
of the result of the investigation and, if the breach is upheld, what steps are being taken to prevent a similar breach from
reoccurring. A copy of the letter must be forwarded to the District Commander or National Manager responsible for the
employee involved in the reported breach.
Printed on : 12/07/2021
Printed from
: https://tenone.police.govt.nz/pi/surveil ance-reporting
14/13
Retention and destruction of surveil ance data and
documents
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Table of Contents
Table of Contents
2
Executive summary
4
Rules about retention or destruction
4
Raw surveil ance data
4
Excerpts from raw surveil ance data
4
Information from raw surveil ance data
5
Disposal of raw surveil ance data, excerpts, and information obtained
5
Retention of raw surveil ance data or excerpts of raw surveil ance data forms
5
Retaining surveil ance documents after execution
5
Court records
6
Retention and destruction of surveil ance data and documents
The content of this chapter must not be disseminated external to Police without prior approval from the National Manager:
Criminal Investigations Group.
3/6
Retention and destruction of surveil ance data and documents
Executive summary
Police must be aware of these key, critical points:
The
Search and Surveil ance Act 2012 provides rules about the extent to which information obtained as a result of a
surveil ance operation may be retained.
In addition a Judge receiving a report about the use of a surveillance device, either under warrant or under the
emergency warrantless power, may give directions as to the destruction or retention of the material obtained as a result
of the surveil ance.
Surveillance information that becomes part of a court record must be retained in accordance with the rules about court
records.
Rules about retention or destruction
Under section
63, the rules about retention or destruction divide surveillance information into three categories:
raw surveillance data
excerpts from raw surveillance data
information obtained from raw surveillance data.
Raw surveillance data
Raw surveillance data is defined in secti
on 3 and:
(a) means actual video or actual audio recordings; and
(b) includes full (or substantial parts) of transcripts of audio recordings.
Raw surveillance data may be retained until:
the conclusion of criminal proceedings (which is defined to include the later of either the conclusion of appeal
proceedings or the expiry of any period for bringing such an appeal)
a maximum of 3 years if no criminal proceedings have been commenced but the data is required for an ongoing (as
distinct from a future) investigation.
For example a full record of visual surveil ance, or a full recording or transcript of an audio interception; but does
not include
tracking data or intercepted text messages.
Raw surveillance data may be retained until:
the conclusion of criminal proceedings in relation to an offence in respect of which the data was collected (which is
defined to include the later of either the conclusion of appeal proceedings or the expiry of any period for bringing such an
appeal); or
subject to the order of the Court a maximum of 3 years if no criminal proceedings have been commenced but the data is
required for an ongoing (as distinct from a future) investigation.
(s63(1))
A Judge may make an order extending the retention period for up to 2 years. The application has to be made before the expiry
of the 3 year period. If application is made before expiry of the initial 3 year period and the Judge is satisfied that the data is
required for the ongoing investigation, the Judge may make an order and may attach any conditions to it that they think fit.
(s63(2))
Excerpts from raw surveil ance data
If you wish to retain excerpts from raw surveillance data for a longer period than that permitted under section
s63(1) in relation
to the whole of the raw data, an application may be made to a Judge for an order to that effect. The Judge may make such an
order if satisfied that the excerpts may be required for a
future investigation, and may attach any conditions to that order that
he or she thinks fit. The order could be for a fixed or indefinite period.
(s63(3))
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Retention and destruction of surveil ance data and documents
Examples of excerpts from raw surveillance data include selected time periods from a visual surveillance record, or edited
sections of the transcript of an audio interception that have eliminated irrelevant or superfluous material.
Information from raw surveillance data
Information that is obtained from raw surveillance data, but that does not in itself constitute raw surveillance data, may be
retained if there are reasonable grounds to suspect that the information
may be relevant to an
ongoing or future
investigation. No judicial order is required.
An example of information from raw surveillance data includes an account of what is seen or heard that is entered in the NIA
database.
Disposal of raw surveil ance data, excerpts, and information obtained
Under section
64 Police must ensure that any raw surveillance data, excerpts from raw surveillance data, and information
obtained from it that is not itself raw surveillance data, and that is not retained under section
63 or as part of a court record, is
deleted or erased.
Retention of raw surveil ance data or excerpts of raw surveillance data forms
These forms should be used if you are seeking to retain raw surveillance data or excerpts from raw surveillance data:
POL SZ13 – Application for retention of raw surveillance data (s63(2))
POL SZ14 – Order for retention of raw surveillance data (s63(2))
POL SZ16 – Application for retention of excerpts from raw surveillance data (s63(3))
POL SZ17 – Order for retention of excerpts from raw surveillance data (s63(3))
Applications are made to either a District Court Judge or a Judge of the High Court. The Judge may issue the order subject to
conditions.
Note: These forms are available on Police Forms > Search and surveillance > Seizure Forms > POL SZ13, SZ14, SZ16 or
SZ17.
Retaining surveillance documents after execution
You must retain the following documents in the relevant case file:
if applicable, written authority from supervisor authorising application for surveillance device warrant
a copy of the surveillance device warrant application, if made in written form, otherwise a record of the oral application
made (
Note: If the application contains sensitive information, consider securing it elsewhere and endorsing the file
accordingly)
copies of all documents tendered in support of the application
the surveil ance device warrant.
(s
s52 and 101)
Note: The specified documents must be retained until the later of:
conclusion of any proceedings
destruction of the documents under the Public Records Act 2005 in accordance with the ‘Retention and disposal of
Police records’ chapter.
(s
s52 and 101(2))
Under the
Public Records Act 2005 there is a statutory obligation to retain documents classified as ‘public records’.
Documents containing surveillance information may be considered ‘public records’. Destruction of ‘public records’ is
permissible with the authority of the Chief Archivist.
A Judge receiving a surveillance device warrant report or report on use of surveillance device in situation of urgency or
emergency may give directions as to the destruction or retention of material obtained as a result of the surveillance.
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Retention and destruction of surveil ance data and documents
(s61(1)(a) and
s62(1)(a))
Those directions take precedence over the rules in sectio
n63.
(s63(7)(a)
Court records
Section
63 is also subject to any enactment requiring the retention of information that is part of a court record. Documents on
the court record that contain raw surveillance data, excerpts of raw surveillance data must be dealt with by the Court in
accordance with the rules dealing with court records.
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Printed from
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Privilege and immunities involving surveil ance
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Table of Contents
Table of Contents
2
Policy statement and principles
3
What
3
Why
3
How
3
Overview
4
Purpose of this chapter
4
References to “the Act”
4
Related information
4
Surveil ance that may involve privilege
5
Identifying privilege
5
Seek legal advice if surveillance may involve privilege
5
Application for surveil ance device warrant where privilege may be an issue
5
Restrictions on issue of surveil ance device warrant
6
Standard condition of surveil ance device warrant in relation to privileged communication
6
Effect of privilege on surveil ance powers
7
Rule of inadmissibility of any privileged communication or information recorded obtained from surveillance
7
Rights of person making a claim of privilege
7
Obligations of Police undertaking surveil ance
7
Police may apply to court when uncertain if privilege applies
7
Determining application
8
Related information
8
Claims for privilege in respect of surveil ance
9
Responsibilities of person claiming privilege
9
Related information
9
Immunities under the Act
10
Immunities when obtaining or executing surveil ance device warrant
10
Immunities when exercising surveil ance powers
10
Crown immunity
10
Related information
10
Privilege and immunities involving surveil ance
Policy statement and principles
What
The
Evidence Act 2006 sets out various privileges. Sectio
n 136 of the Search and Surveil ance Act 2012 recognises those
privileges and sections
140 and 141 of the Act deal with privilege in respect of surveil ance.
This part of the
‘Surveillance’ chapter details procedures for Police employees to comply with the Act and enable a claim of
privilege to be made and determined in respect of material that is the subject of surveillance powers.
Why
Privileged communications or information may not be used in proceedings unless the privilege has been waived and use has
been authorised by a Judge. Compliance with the guidance and procedures in this chapter when carrying out surveillance
powers wil ensure privilege is appropriately preserved and mitigate against future challenges to the surveil ance.
How
When carrying out surveillance powers, Police will:
before applying for a surveillance device warrant, consider whether privileged communications or information may be
recorded when carrying out the surveil ance, e.g.:
is it likely that the surveil ance may contain communication from a lawyer?
is the person who is the target of surveillance someone whose communications may be privileged, such as a
lawyer, a doctor, a journalist or a minister of religion?
if you reasonably anticipate privileged communications or information may be recorded when executing a surveillance
device warrant, include information in the application to:
identify the privilege that may apply and the nature of the potentially privileged information/communications
explain how Police will comply with duties imposed under the Act to prevent the interception of privileged
information/communication, and destroy any records of privileged communications and information that might be
made as a consequence of the surveil ance
before conducting surveillance when privilege may apply, seek legal advice from a legal advisor
if there are reasonable grounds to believe that information/communications recorded
during surveillance are privileged,
discuss with the Crime Monitoring Centre how you can comply with your obligation under the Act to:
take all reasonable steps to prevent further interception of such communications or information; and
destroy the record of that privileged communication or information, unless that is impracticable or impossible.
Usually it is not practicable to destroy a part of the complete evidential surveillance record, but the relevant parts
may be “locked down”.
If you are uncertain about whether the communication or information is privileged, you can apply to a Judge to determine
whether:
the communication or information can be the subject of surveillance; and
any record of the information or communication is required to be destroyed
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Privilege and immunities involving surveil ance
Overview
Purpose of this chapter
This chapter details:
surveillance that may involve privilege
restrictions on issue of surveillance device warrant under secti
on54 of the Search and Surveillance Act 2012
requirement for all surveillance device warrants to contain a condition that relates to any privileged communications
obtained under the warrant
effect of privilege on surveil ance under secti
on 140 of the Search and Surveil ance Act 2012
claims by any person wishing to claim privilege in respect of surveil ance under sectio
n141 of the Act
immunities relating to surveil ance under the Act.
References to “the Act”
All statutory references in this chapter are to t
heSearch and Surveil ance Act 2012 unless otherwise stated.
Related information
See also these Police Manual chapters:
Search chapter:
Part 13 – Privilege and immunities under the Actfor guidance with:
recognised privileges
privilege relating to search warrants, production orders and examination orders
immunities under the Act in the exercise of entry and search powers
Surveillance chapter:
Surveillance device warrants for information about applying for surveillance device warrants.
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Privilege and immunities involving surveil ance
Surveil ance that may involve privilege
Identifying privilege
Before applying for a surveillance device warrant or undertaking warrantless surveillance, consider whether any of the
recognised privileges under section
136 of the Search and Surveil ance Act 2012 and t
he Evidence Act 2006 as outlined in
Part 13 – Privilege and immunities under the Actof the ‘Search’ chapter might reasonably apply in the circumstances. For
example:
Is it likely that the person that is the target of surveillance will have privileged communications with a lawyer, doctor, or
minister of religion?
Is the person who is the target of surveillance someone whose communications may be privileged, such as a lawyer, a
doctor, or a minister of religion?
Is the target of surveillance a journalist who is likely to be in contact with a source whose identity the journalist has
promised to protect?
Is it likely that privileged communications will be conducted by the people using a phone number that you are planning to
intercept?
Seek legal advice if surveil ance may involve privilege
If a surveillance device warrant or warrantless surveillance may involve privileged communications or information, legal advice
should be sought on the procedure for making application or carrying out surveillance.
See the part
‘Surveillance device warrants’ in the ‘Surveil ance’ chapter for guidance with applying for surveillance device
warrants.
Application for surveil ance device warrant where privilege may be an issue
If you reasonably anticipate intercepting privileged communications when executing a surveillance device warrant, include
information in the application to:
identify the privilege that may apply and the nature of the potentially privileged information/communications
explain what steps you will take to prevent the surveillance of privileged information/communications, and to destroy (or
lock down) that information/communications.
The Crime Monitoring Centre can provide information about their procedures for managing privilege.
In accordance with standard conditions on the surveilance device warrant, you will not be able to use any privileged
communications that might be intercepted. (s55(1)(e))
Privilege does not apply if the court is satisfied that there is a prima case that the communication or information is made or
received, or compiled or prepared:
for a dishonest purpose; or
to enable or aid any person to commit or plan to commit an offence.
An application for a surveillance device warrant seeking authorisation to intercept communications in circumstances where
privilege would normally apply (for example, between a lawyer and a particular client) on the basis that the privilege does not
apply may be complex. Before seeking legal advice, consider what evidence there is to satisfy the court that there is a prima
facie case that the communications between those two people are being made for a dishonest purpose or to enable/aid
commission (or planning to commit) offences. There will need to be careful planning on the following types of matters so that
you can explain to the issuing Judge:
How the group of communications you say are not privileged can be separated out from those that are privileged.
How those communications will then be reviewed and assessed before they can be used by Police. For example, an
independent lawyer may need to be engaged.
When and how the person who might be able to claim privilege will be aware of the surveillance and therefore in a
position to make a claim privilege for determination by a court.
See the part
‘Surveillance device warrants’ in the ‘Surveilance’ chapter for information about applying for surveillance device
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Privilege and immunities involving surveil ance
warrants.
Restrictions on issue of surveillance device warrant
A Judge must not issue a surveillance device warrant that is primarily intended to facilitate surveillance or recording of activity
between a lawyer and his or her client that is communication of a kind to which legal professional privilege normally applies
unless the Judge is satisfied that there is a prima facie case that the communication is to be made or received:
for a dishonest purpose; or
for the purpose of planning to commit or committing an offence.
(s54)
See t
he commentary in Westlaw for an explanation relating to:
legal professional privilege
“primarily intended”
other protections for privileged material
dishonest or criminal purpose.
Standard condition of surveillance device warrant in relation to privileged
communication
Every surveillance device warrant must contain a condition that the enforcement officer (Police officer) carrying out the
activities authorised by the warrant must not use any communication obtained under the authority of the warrant unless the
privilege is waived or its use is authorised by a Judge, if the officer has reasonable grounds to believe that the communication
may be subject to a privilege specified in section
136 of the Act.
(s55(1)(e))
See the
commentary in Westlaw for an explanation relating to secti
on55(1)(e) – use of privileged communication.
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Privilege and immunities involving surveil ance
Effect of privilege on surveil ance powers
Section
140 of the Search and Surveil ance Act 2012:
confers rights on privilege holders to prevent surveillance of privileged communication or information and have privileged
material destroyed
imposes obligations on Police to prevent interception of privileged communications or information
provides a framework for Police conducting surveillance to obtain a ruling from a Judge when it is uncertain whether
privilege applies to any particular information or communication or to any record of communication.
Rule of inadmissibility of any privileged communication or information recorded
obtained from surveillance
If privileged communications or information are recorded in the course of surveillance, they are not admissible in any
proceedings except:
with the consent of the privilege holder; and
if the court agrees to admit them.
(s140(5)).
Rights of person making a claim of privilege
A person who makes a claim of privilege in respect of any surveillance has the right:
to prevent, to the extent that it is reasonably practicable to do so, the surveillance of any communication or information to
which the privilege would apply, pending determination of the claim to privilege (and also subsequently, if the claim to
privilege is upheld)
if the claim to privilege is upheld, to require the destruction of any record of any such communication or information, to
the extent that this can be achieved without destruction of any record of any other communication or information.
(s140(1))
Obligations of Police undertaking surveil ance
For most surveillance, the privilege holder will not be aware of the surveillance until after the operation has been terminated.
Any privilege claim is therefore likely to come later on.
Accordingly, the Act imposes obligations on Police undertaking surveillance to consider privilege as the surveillance occurs.
A person who is undertaking surveillance authorised by the Act (whether under a surveillance device warrant or otherwise)
must:
take all reasonable steps to prevent the interception of any communication or information to which a recognised privilege
would apply
destroy any record of a communication or information made as a consequence of the surveillance to which a recognised
privilege would apply, unless that is impossible or impracticable without destroying a record of information to which a
privilege does not apply.
(s140(2))
Police may apply to court when uncertain if privilege applies
A person undertaking surveil ance under the Act who is uncertain about whether secti
on140 applies to any information or
communication or record of a communication or information, may apply to a District Court Judge for an order determining
whether:
the communication or information can be the subject of surveillance; and
any record of such communication or information is required to be destroyed under this section.
(s140(3))
Note: For making application use the ‘Determination of communication or information S140 Application’ form (POL PR7) for
surveillance situations. Go to Police Forms (L-Z) > Privilege Forms > Determination of communication or information or
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Privilege and immunities involving surveil ance
information S140 Application.
Determining application
For the purposes of determining any application, the Judge of the appropriate court may require the record of the information
or communication to be produced to them.
(s140(4))
Note: The privilege relating to the rights conferred on a journalist to protect certain sources under secti
on68 of the Evidence
Act 2006, must be heard in the High Court.
Related information
See:
the
commentary in Westlaw for an explanation relating to the effect of privilege on surveillance
Part 13 – Privilege and immunities under the Actin the ‘Search’ chapter for how privilege applies to search warrants,
production orders and examination orders.
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Privilege and immunities involving surveil ance
Claims for privilege in respect of surveil ance
Responsibilities of person claiming privilege
Under section
141 of the Search and Surveillance Act 2012 any person who wishes to claim privilege in respect of any
surveil ance:
must provide the Police person responsible for the surveillance with a particularised list of the matters in respect of which
the privilege is claimed, as soon as practicable after the person claiming privilege becomes aware of the surveillance of
the matters in respect of which privilege is claimed; and
if the matters in respect of which the privilege is claimed cannot be adequately particularised, then the person, may
apply to a Judge of the appropriate court for directions or relief.
Related information
See t
he commentary in Westlaw for an explanation relating to claims for privilege in respect of surveil ance.
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Privilege and immunities involving surveil ance
Immunities under the Act
Immunities when obtaining or executing surveillance device warrant
You are immune from civil or criminal liability for any act done in good faith to obtain a surveillance device warrant and in the
execution if the execution is carried out in a reasonable manner.
(s165)
Immunities when exercising surveillance powers
You are immune from civil and criminal liability for any act done in good faith in order to exercise a surveillance power if you:
exercise the power in a reasonable manner, and
believe on reasonable grounds that the pre-conditions for the exercise of that power have been satisfied.
Every person is immune from civil and criminal liability for any act done in good faith and in a reasonable manner in order to
assist you to exercise a surveil ance power.
Note: The onus is on the person asserting immunity in any civil proceeding to prove the facts necessary to establish the claim.
(s166)
Crown immunity
Section
167 clarifies that if any person is immune from civil liability with obtaining or executing a surveillance device warrant
and surveillance powers in respect of anything done or omitted to be done, then the Crown is also immune from civil liability in
tort in respect of that person’s conduct.
Related information
See
'Part 13 – Privilege and immunities under the Act'in the ‘Search’ chapter for immunities under the Act in relation to
exercise of an entry or search power.
Printed on : 12/07/2021
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