Crime Prevention Unit

Organised Crime

Office of the Minister of Justice
Cabinet Business Committee

LAW COMMISSION REPORT SEARCH AND SURVEILLANCE POWERS

Paper 4: Warrantless powers

Proposal

1. The Law Commission report on Search and Surveillance Powers (NZLC R97) was tabled in Parliament on 7 August 2007. This paper is part of a suite of 8 Papers in relation to that report and deals with the circumstances in which enforcement agencies should be authorised to conduct warrantless searches of places, vehicles and people.

Executive Summary

2. In New Zealand, as in many other countries, warrantless search powers are provided to enforcement officers for urgent circumstances where the public interest in swift action outweighs the presumption that a warrant should first be obtained. Currently, warrantless powers are derived from a mix of common law and statutory authority which, in many instances, are either uncertain in scope or inconsistent, or both. The exceptional nature of such powers, authorising coercive state action without prior judicial approval, makes it essential to codify their existence and scope.

3. Where possible, warrantless powers for searching people, places and vehicles should be made consistent with each other. However, the inherent mobility of vehicles and people, and the fact that they are often found in public places, mean that discrete powers are required in a number of instances where the warrantless search of premises cannot be justified. This paper discusses the circumstances where warrantless powers are justified and makes recommendations for clarifying and rationalising the law.

Background

4. There are two principal exceptions to the general rule that searches by law enforcement officers may only be undertaken pursuant to the terms of a warrant issued by an independent officer acting judicially. The first is where the subject consents to a search (see Paper 1: Overview). The second is where a specific statutory power or the common law authorises a warrantless search. The importance of the warrant requirement is such that departures from it should only be justified in exceptional circumstances: those where obtaining a warrant will be too time-consuming to meet the objective of the power (for example, to protect life or to secure evidence of serious offending at risk of being destroyed).

5. Prior judicial authorisation has never been a general pre-requisite for a personal search for evidential material relating to criminal offending. Due to the inherent mobility of people and their ability to discard items in their possession, requiring a warrant would invariably frustrate the purpose of the search. But the justification for searching a person, due to the principles of human dignity, personal liberty and freedom of movement, should be greater than for places or vehicles.

6. Warrantless powers have developed in a rather haphazard manner, and in some instances it is difficult for the officers exercising those powers to know the basis for them, when they can be exercised and their exact scope. That is unsatisfactory and should be rectified by codifying and rationalising police warrantless powers in a single statute and amending powers in other statutes to be made consistent with those powers where an alternative approach cannot be justified.

Entry to arrest

7. The authority to enter a place to arrest someone without warrant is limited, under section 317(1) of the Crimes Act 1961, to cases where a constable:

8. There are problems with section 317(1) as presently drafted. It allows entry without warrant even when the person to be arrested is unaware that the police officer is in pursuit, is not deliberately trying to evade arrest, and is unlikely to leave the place before a warrant can be obtained. At the same time, it precludes entry when the officer has not personally witnessed the offence, even when the person is actively fleeing from the police and may escape without immediate intervention.

9. This power needs to target those who are a flight risk. It should also be available where a suspect is not necessarily a flight risk but will discard or destroy evidential material if he or she is not immediately arrested. The potential loss of evidence is just as much a threat to the ability to bring an offender to justice as flight risk.

10. I therefore recommend that section 317(1)(a) of the Crimes Act be replaced with a power to enter for the purpose of arresting a person where the police officer has reasonable grounds to believe that the person is in the place and reasonable grounds to suspect that:

• the person has committed an imprisonable offence; and

• if entry is not effected immediately, the person will either:

11. The Commission recommended in its report that the threshold in respect of the last bullet point should be reasonable grounds to believe. However, subsequent to the publication of its report, concerns have been raised that a belief threshold is too high, given the inherent uncertainty about whether a person will flee or destroy evidence. The Commission agrees with these concerns. I therefore propose that the appropriate threshold in relation to the matters to be satisfied prior to entry (other than the presence of the person in the place) is reasonable grounds to suspect. However, the threshold as to the presence of the person should be belief. The mixed threshold is in accord with the tenor of the general threshold proposed in Paper 1: Overview.

12. The power under section 317(1)(b) should be retained, as it is necessary to deal with situations that police encounter on a daily basis (such as a domestic violence call-out), where the offence occurs in the premises where the person is to be arrested. Without the section 317(1)(b) power there would be a gap in the law not covered by the proposed new section 317(1)(a) power nor the proposed exigent circumstances power (see paragraphs 27-31, below). The current threshold as to suspicion that the person has committed an imprisonable offence in the premises should be retained.

Apprehension of those unlawfully at large

13. The police have power under the Crimes Act 1961 to arrest persons who escape from lawful custody and a corresponding power to arrest those “unlawfully at large” under the Corrections Act 2004 and Parole Act 2002. A power exists under the Summary Proceedings Act 1957 for police officers to enter premises to execute a warrant to arrest a defendant or a witness. The police also have power to “retake” special or restricted patients who escape from an institution or who are absent without leave under the Mental Health (Compulsory Assessment and Treatment) Act 1992; and to detain children and young persons who abscond from a residence whilst the subject of a supervision with residence order under section 311 of the Children, Young Persons and their Families Act 1989.

Places

14. There is no statutory power for police to enter premises to arrest a person falling within the categories in paragraph 13 (to be collectively defined as persons “unlawfully at large”). Such people are fugitives with good reason to avoid apprehension. I recommend that a specific statutory power be enacted for police to enter a place without warrant in order to search for and apprehend a person where there are reasonable grounds to suspect that a person is unlawfully at large and reasonable grounds to believe that person is in the place. I also recommend that the category of those to whom this power applies be extended to include absconders from a supervision with residence order under the Children, Young Persons and their Families Act 1989.

Vehicles

15. Section 317A of the Crimes Act currently provides statutory authority to stop a vehicle to arrest a person who there are reasonable grounds for suspecting is unlawfully at large, and section 317AA specifies the powers that may be exercised upon stopping a vehicle to arrest. Under section 317B a road block can be established for a similar purpose.

16. I recommend that these powers in the Crimes Act 1961 should be retained except that:

• section 317A(1)(a) be amended to require reasonable grounds to believe (rather than suspect) that the person is in the vehicle;

• the expression “unlawfully at large” in sections 317A(1)(a) and 317B be defined in the same way as that for the warrantless search of places and include people in respect of whom an arrest warrant is in force (see paragraphs 13 and 14, above);

• the power to search for evidential material in section 317AA(1)(b)(ii) should apply only where the person to be arrested has been apprehended, or is seen fleeing from the vehicle before he or she can be apprehended (this change is recommended to make the power more consistent with the power to search incidental to arrest, discussed in paragraph 23, below).

Search incidental to arrest

People

17. The common law recognises the power to search a person incidental to arrest. The authority is not unqualified, is dependent on the lawfulness of the arrest and is limited to the purposes of securing items that implicate the arrested person in the commission of an offence, may cause harm to the arrested person or others, or may be used to aid escape from police custody. Case law is inconsistent as to the threshold required to conduct a search for those purposes.

18. Arrest is an inherently risky and difficult activity for police (and other enforcement officers with the power). The Commission proposes a two step procedure for search of the person following arrest to balance the principles of human dignity against the need to protect officers making arrest. An initial frisk or pat down search is proposed upon arrest for protective purposes only and a more thorough search if reasonable grounds exist to believe that relevant items are upon the arrested person. I agree with that approach.

19. The initial frisk search should not be conducted for the purpose of obtaining evidential material. If places and vehicles cannot be searched for evidential material without reasonable grounds to believe that it is present (as recommended in Paper 1: Overview), it would be anomalous to have a lesser standard for search of the person. The frisk search should be defined so as to address its immediate protective purpose, but not so widely as to allow routine examination of the mouth, nose or ears.

20. A more thorough search following arrest should be permitted if there are reasonable grounds to believe that there is anything on the person that may be used to cause harm to the arrested person or any other person or may facilitate the arrested person’s escape or that is evidential material relating to the offence for which the person is being arrested. The reasonable belief that justifies this search may be derived from the frisk search, but the more invasive search following arrest may take place without a prior frisk search if the relevant reasonable belief exists independently of the frisk search.

Places

21. The common law is unclear as to what places may be searched incidental to arrest and the scope of that power. The Commission report discusses a range of options for reform in this area, before recommending a test that would allow any place to be searched following the arrest of a person if the police officer conducting the search has reasonable grounds to believe that:

• the place contains evidential material relating to the offence for which the person was arrested; and

• the delay caused by obtaining a search warrant will result in that evidential material being destroyed, concealed or impaired.

22. The Commission considered whether such search should be confined to the immediate area where the arrest occurs or any place within the person’s possession or control. However, it concluded that the objective was best achieved by permitting immediate action to secure at risk evidential material, wherever it is located, but by limiting the search to evidential material that is relevant to the offence for which the person was arrested. I agree and recommend accordingly.

Vehicles

23. The Commission recommends that a corresponding power to search vehicles should be enacted. However, it proposes to exclude the requirement that the officer have reasonable grounds to believe that the delay caused by obtaining a search warrant will result in that evidential material being destroyed concealed or impaired (the second limb of the test in paragraph 21 above). I agree. The inherent mobility of vehicles means that if the power is not exercised immediately there is always a significant risk that the vehicle will be moved and the evidential material hidden or otherwise tampered with.

Search following detention

24. There are several Acts that vest a police officer with a power to detain and take a person into custody. These powers exist under the Mental Health (Compulsory Assessment and Treatment) Act 1992, the Alcoholism and Drug Addiction Act 1966, the Children, Young Persons, and Their Families Act 1989 and the Land Transport Act. The risks to police in detaining a person under these enactments are the same as those arising upon arrest. I recommend that the power to search the person for protective purposes (both a frisk search and a more thorough search if reasonable grounds exist to believe that there is an item on the person that could harm any person or facilitate escape) should be available to police. However, since the search is not predicated upon the commission of an offence, a search for evidential purposes is not justified in this context.

Search at Police lock-up

25. A distinct and separate power to that which exists upon arrest (see paragraphs 17 to 20, above) is provided in section 57A of the Police Act 1958 to search people who are to be locked up in police custody. The purpose of this power is to remove items from those being locked up in police cells that may be used harm themselves, other prisoners or police staff and to safeguard their property while they are in custody. This power only arises after a decision to lock up the person has been made; the mere fact of arrest or being taken into police custody does not provide an authority for this search.

26. I recommend that the section 57A power be retained but expanded in two important respects. Case law has restricted the scope of this power to those to be locked up with no prospect of bail. In my view that is too restrictive. The police advise that an arrested person who is being held pending a decision on bail is likely to be placed in a holding cell with other prisoners. The risks that this power is designed to minimise arise in such situations, so the power should exist if the person is to be detained, whether pending his or her first appearance in court or a decision to grant bail pursuant to the Bail Act 2000, or for taking particulars under section 57 of the Police Act (the power to take fingerprints and photographs of an arrested person). I recommend that section 57A of the Police Act be amended accordingly.

Exigent circumstances

Places

27. Section 317(2) of the Crimes Act 1961 provides authority for police to enter premises to prevent the commission of any offence that would be likely to cause immediate and serious injury to any person or property. In addition, the common law defence of necessity exists in cases other than crime prevention, allowing any person to enter to preserve human life, prevent serious physical harm and render assistance to another person who has suffered serious physical harm. It is unclear whether the doctrine of necessity applies to the protection of property.

28. It is recommended that both the crime prevention and necessity powers be codified in a single provision. This is because the two powers overlap to some extent. For example, if a 111 call occurs followed by only a scream or silence, the police will not know whether that signifies an offence or some other emergency.

29. There should be no requirement that the nature of the injury to the person should be serious, as presently required under section 317(2). Any violent incident carries with it the possibility that the situation or nature of the harm will escalate unless immediate action is taken. This will generally be impossible for a police officer to assess without attending to the person; the officer should not have to wait to make that assessment until the person’s injury becomes life threatening.

30. However, a warrantless entry to protect property should only be permitted where the potential damage or loss is serious. This is consistent with the general principle that protecting people is more important than protecting property and that warrantless entry should only be permitted where the public interest in so doing outweighs the privacy interests at stake.

31. The threshold for exercising this exigent power without warrant should be reasonable grounds to suspect. In the situations where the power will be required immediate action is paramount, justifying the threshold of suspicion. However, having entered and assessed the situation, the officer should then be permitted to take any action reasonably believed to be necessary to prevent the offending from occurring or continuing, or to avert the emergency.

Vehicles

32. Consistent with the Commission’s recommendations to align statutory powers wherever possible, the proposed power to enter premises to protect people and property should apply in the same terms to vehicles.

Existing powers in relation to drugs, firearms and offensive weapons

33. Warrantless powers of entry, search and seizure are currently provided to police under section 18(2) of the Misuse of Drugs Act 1975 (in relation to class A drugs, some class B and class C drugs and precursor substances specified in particular parts of the Schedules). Similar powers are provided in sections 60 to 61 of the Arms Act 1983 in relation to firearms and explosives. Ensuring that controlled drugs and firearms do not circulate or are not used in the community is very much in the public interest. Both sets of powers should be retained. Given the risk of immediate and serious harm, the suspicion threshold in the specified Arms Act provisions should also be retained. However, the Commission recommended a number of changes to these powers.

Misuse of Drugs Act

34. Section 18(2) of the Misuse of Drugs Act should not be exercised unless the officer exercising the power believes on reasonable grounds that it is not practicable to obtain a warrant. If there is time to obtain a warrant and there is no reason to believe evidential material is at risk, a warrant should always be the preferred means of effecting entry, search and seizure. This recommendation gives statutory recognition to the existing common law in NZ.

35. Section 18(1), (2) and (3) of the Misuse of Drugs Act will require consequential amendment to ensure that general threshold proposed in Paper 1: Overview applies to the exercise of these powers.

Controlled delivery of drugs

36. Police and customs officers have specific warrantless search powers with respect to the controlled delivery of unlawfully imported drugs or precursor substances under section 12A of the Misuse of Drugs Amendment Act 1978. A controlled delivery usually occurs when a customs officer has intercepted drugs coming into NZ, with the officer empowered to allow the package containing some or all of the drugs to be collected or delivered for the purpose of the investigation. Police and customs officers have the power to search any person involved in the delivery and may enter any building, craft or vehicle to do so.

37. This power does not include the power to search the building, craft or vehicle. This is a significant deficiency in the existing power. The person involved in the delivery may have hidden or left the package in a place or vehicle to be picked up by someone else. I recommend that this statutory power be amended to include a search power for places and vehicles (including craft) on the basis of reasonable belief that it contains controlled drugs, precursor substances, a substituted package or other evidential material relating to the offence. This will not provide police officers with any additional powers, since they can presently invoke the general powers under section 18 of the Misuse of Drugs Act to search places or vehicles without warrant in such situations. However, it will enable customs officers to search buildings and vehicles without calling upon police. This is desirable because it is not always possible for police to attend immediately when customs officers are involved in a controlled delivery operation.

38. The definition of what constitutes a controlled delivery operation should also be amended to deal with a wider range of activities (such as the supervised delivery of a substituted package by a courier who has agreed to co-operate with NZ authorities) to recognise changes in unlawful drug importing patterns.

Search for internally concealed drugs

39. During the preparation of the Commission report, the Police queried the adequacy of the current 21-day maximum period of detention under the Misuse of Drugs Amendment Act 1978, where a detention warrant has been issued and there is reasonable cause to believe that a person has internally concealed a class A or class B controlled drug. The Commission did not have the opportunity to fully consider that issue and made no recommendations on it, but intends to further consider this issue in the context of its reference on enforcement powers under the Misuse of Drugs Act.

Arms Act

40. The Commission recommends that the requirement under section 61 of the Arms Act for a commissioned police officer to issue a written authorisation for police officers to enter and seize firearms and explosives, in respect of offences which are suspected to have been or are about to be committed, should be removed. I agree. If there is justification for a warrantless power (which there clearly is), then the urgency of the situation dictates the need to act without a written authorisation being issued by a commissioned officer.

Offensive weapons

41. Section 202B of the Crimes Act allows a police officer to search a person who is believed, without lawful authority or reasonable excuse, to have in a public place a knife, offensive weapon or disabling substance. Due to the risk of immediate and serious harm, as for the Arms Act powers, I recommend that the threshold for search in section 202B of the Crimes Act should be amended from the current reasonable grounds to believe to reasonable grounds to suspect, both in relation to personal search and vehicle search.

Other serious offences

Places

42. The Commission concluded that where there are reasonable grounds to believe that evidential material relating to very serious offending (such as homicide, aggravated robbery or rape) will be destroyed, concealed or impaired during the time taken to obtain a warrant, there is a strong argument for empowering the police to enter premises to search for and seize such material. I agree.

43. The Commission thought this to be the preferable approach to proposing a power to secure premises until such time as a warrant could be obtained. That would often result in greater disruption to the activities of occupiers, their freedom of movement and intrusion on their privacy than the search itself. Moreover, valuable evidential material could deteriorate whilst the warrant was being obtained.

44. As this is a new warrantless power, the Commission recommends that it be limited to only the most serious crimes punishable by 14 years imprisonment or more. I agree that this is appropriate. It reflects that warrantless powers should be available only in the most urgent and serious of cases where the public interest justifies coercive state action without prior judicial authorisation.

45. As a result of this proposed new power, section 78D of the Crimes Act, allowing a commissioned police officer to issue a written order that has the effect of a warrant to search for evidence of espionage in circumstances of urgency, should be repealed. Espionage is an offence carrying a maximum penalty of 14 years imprisonment.

People and vehicles

46. The proposed power should apply not only to places, but also to vehicles and people. Consistent with the proposal for searching places, there will be a reasonable belief requirement that the evidential material is in the vehicle or on the person. However, due to the inherent mobility of people and vehicles there should be no requirement that the officer suspect that the evidential material will be destroyed, impaired or concealed due to the delay in obtaining a warrant. There is always a significant risk that a vehicle will be moved to another location and the evidential material hidden or tampered with, before a warrant is obtained. A corresponding power is required for people, for essentially the same reason.

Stolen goods

47. Section 225 of the Crimes Act allows a police officer who has reasonable grounds for believing that stolen or dishonestly obtained property is in a vehicle to search the vehicle without warrant to locate that property. The Police consider this power to be an essential law enforcement tool in combating burglary.

48. However, the Commission considered the power to be wider than is necessary to achieve this objective, in that it covers not just stolen goods but also dishonestly obtained property (including that obtained by deceit, forgery and counterfeiting). The compelling justification for a warrantless power does not exist for the latter category of goods. The term stolen property, as used in the section, covers the proceeds of burglary, robbery, theft and receiving. I agree with the Commission that section 225 of the Crimes Act should be retained but limited to stolen goods, thereby meeting the law enforcement justification for the power but not extending its scope further than is necessary to meet that objective.

49. Under section 224 of the Crimes Act 1961, the police have the warrantless power to search people reasonably believed to have in their possession stolen or unlawfully obtained goods in places of transit (railways, airports etc), or to search vehicles and containers reasonably believed to contain such goods in such places. The “in transit” nature of the goods does not provide a compelling reason to justify search of the person in such places for goods of this type and a range of search powers exist at the border. In relation to vehicles, the power is effectively redundant, since section 225 of the Crimes Act provides a power to search vehicles for the same goods but is not constrained by the need for the vehicle to be in a place of transit before the power may be exercised. The Police advise that the power in section 224 is seldom used. There is no compelling operational reason for its retention. I recommend that it be repealed.

Powers of entry to private places to impound vehicles

50. Section 119 of the Land Transport Act 1998 provides enforcement officers with a warrantless power of entry to private property to impound vehicles. Under subsection (3), an enforcement officer may enter any building or place to seize a vehicle that is to be impounded if:

51. The alternative scenarios specified in the subsection (3)(a) to (c) above do not, in themselves, justify departure from the warrant requirement. I recommend that those entry powers should be available only if it is impracticable to obtain a warrant. Rather than paragraph (d) being a stand-alone ground for entry, I recommend that one of the first 3 grounds and paragraph (d) must exist to exercise this power without warrant.

52. The Commission recommended that the (3)(c) threshold should be reasonable belief; mere suspicion that the vehicle is to be used in the commission of crime does not provide a sound basis for impounding a vehicle. I agree.

Stopping vehicles to search

53. Section 314A and 314B of the Crimes Act 1961 provide the general authority for police to stop a vehicle to search it pursuant to a statutory power. Sections 314C and 314D provide ancillary powers, such as the requirement for people in stopped vehicles to provide identifying particulars, and create an offence for failing to stop and failing to comply with certain requirements. Other statutes adapt and modify these powers, but not in an entirely consistent manner. The Commission proposes that there should be a single statutory provision incorporating the requirements, powers and obligations in sections 314A to 314D to govern police officers stopping vehicles to exercise a search power. I agree and recommend accordingly.

Searches relating to border control

54. A number of statutes provide a range of warrantless powers to search people, vehicles and items at the border or in relation to protection of New Zealand’s border. Powers of this nature are contained in the Customs and Excise Act 1996 and the Bio security Act 1993. Internationally, border control is recognised as a special area of the law requiring discrete approaches. Such search powers are generally predicated on a suspicion threshold and do not require a warrant, due to the small window of opportunity available at the border to assess the risk and check people, vehicles or items entering or leaving the country for illegal, unauthorised or dutiable customs goods or for items that constitute a bio security risk. The danger of such items crossing the border and getting into domestic circulation justifies this approach.

55. However, the Commission raised concerns about two particular warrantless statutory powers, broadly falling within the category of border control. Section 13 of the Aviation Crimes Act 1972 and section 55(1) (b) (i) of the Maritime Security Act 2004 authorise personal search (and, in the case of the 2004 Act, the person’s vehicle) by police in prescribed circumstances without any requirement that the person be suspected or believed to have committed any offence or any requirement that it is suspected the search will yield evidence of any offence. While the Commission has no doubt that a search power is required in both circumstances and that a suspicion threshold is justified, it considers that before such search can be justified there should be some prior basis to consider that the item being searched for will be found on the person or vehicle. I agree. Both these provisions should be amended to require the member of police conducting the search to have reasonable grounds to suspect both that a relevant offence has been, is being, or is about to be committed and that the search of the person or vehicle will disclose evidential material relating to that offence.

Non-police enforcement officers

56. The Commission has recognised that existing warrantless search powers are justified for non-police enforcement officers in certain circumstances and it recommends that certain powers in this paper should be extended to such officers in the following circumstances:

• Where a non-police enforcement officer, such as a customs or fishery officer, has a statutory power of arrest, such officer should have the same power as for police to search people, places or vehicles as an incident of arrest (see paragraphs 17 to 22, above). The risks to such officers and the need to secure evidential material are the same as for police;

• Where an official, such as a social worker under the Children, Young Persons, and Their Families Act 1989, has power to detain a person, they should have the same power to search as for police under paragraph 24.

57. I agree that those two sets of powers should be extended to non-police enforcement officers in the manner recommended by the Commission.

Amendment of certain non-police warrantless powers

58. The Commission identified three specific statutory powers providing warrantless entry and search powers to non-police agencies that could not be justified in their present form.

59. The first is the power to enter premises without warrant where an offence is suspected under the Immigration Advisers Licensing Act 2007. Under section 58 of that Act a person authorised by the Registrar of Immigration Advisers may enter any premises in which the authorised person has good cause to suspect a person provides immigration advice, for the purpose of investigating a suspected offence against the Act. There is nothing in section 58 of the Immigration Advisers Act providing compelling grounds of urgency justifying a warrantless power of entry. Though this legislation was recently enacted, I recommend that it be amended by requiring that this power be exercised only when authorised by an issuing officer granting a warrant.

60. The second is section 453(2) of the Maritime Transport Act 1994 that provides a warrantless power of entry and inspection in three situations. Subsections (2)(a) and (b) allow an authorised officer to enter and inspect buildings, places and ships where there are reasonable grounds to believe a breach of the Act or Regulations has occurred or any condition imposed under maritime documents is not being complied with. As a stand-alone law enforcement power, there are no compelling grounds justifying a warrantless power. Moreover, the regulatory power of entry and inspection provided by 453(1) provides sufficient authority to achieve the same result as subsections (2)(a) and (b). I therefore recommend that section 453(2)(a) and (b) of the Maritime Transport Act be repealed. The third warrantless power provided by section 453(2) is available where there are reasonable grounds to believe a situation constituting a danger to people or property or a threat to the marine environment has arisen. Though rarely exercised, this power is necessary to deal with emergencies and should be retained.

61. The third statutory power identified as being defective by the Commission, section 13(1) of the Marine Mammals Act 1978, will be repealed by proposed Department of Conservation legislation.

Recommendations

I recommend that Cabinet Business Committee:

1. Agree that section 317(1)(a) of the Crimes Act 1961 be repealed and replaced with a provision that authorises a police officer to enter a place to search for and arrest a person if the police officer has reasonable grounds to believe that the person is in the place and reasonable grounds to suspect that:

• the person has committed an imprisonable offence; and

• if entry is not effected immediately, the person will either:

2. Agree that current threshold in section 317(1)(b) of the Crimes Act 1961, allowing a police officer to enter a place to arrest a person who is reasonably suspected to have committed an imprisonable offence in that place, be retained;

3. Agree that a police officer be able to enter a place without warrant in order to search for and apprehend a person where there are reasonable grounds to suspect that person is unlawfully at large and reasonable grounds to believe that person is in the place;

4. Agree that a person be regarded as unlawfully at large if he or she:

• is the subject of an arrest warrant;

• is unlawfully at large in terms of the Corrections Act 2004 or the Parole Act
  2002;

• is a special or restricted patient who has escaped from an institution or is
  absent without leave under the Mental Health (Compulsory Assessment and
  Treatment) Act 1992;

• has escaped from lawful custody under sections 119 or 120 of the Crimes Act
  1961;

• has absconded from a supervision with residence order under section 311 of
  the Children, Young Persons and their Families Act 1989;

5. Agree that the powers in the Crimes Act 1961 to stop and search vehicles for the purposes of arrest be retained in their present form except that:

• section 317A(1)(a) be amended to require reasonable grounds to believe that
  the person is in the vehicle;

• the expression “unlawfully at large” should be redefined in the same terms as
  proposed in recommendation 4;

• the power to search for evidential material in section 317AA(1)(b)(ii) should
  apply only where the person to be arrested has been apprehended, or is seen
  fleeing from the vehicle before he or she can be arrested;

6. Agree that police officers effecting an arrest be entitled to undertake a frisk search to ensure an arrested person is not carrying anything that may be used to facilitate his or her escape or to harm anyone;

7. Agree that the areas of the body that may be searched pursuant to a frisk search be prescribed, so that it does not extend beyond its protective purpose;

8. Agree that police officers effecting an arrest be entitled to search the arrested person if they have reasonable grounds to believe that there is anything on the person:

• that may be used to cause harm to anyone;

• that may be used to facilitate the arrested person’s escape;

• that is evidential material relating to the offence for which the person is being
  arrested;

9. Agree that the existence of the power to search a place incidental to arrest, and the scope of such a power, be codified to authorise a police officer who has arrested a person to enter and search a place if the officer has reasonable grounds to believe that:

• evidential material relating to the offence for which the person was arrested is
  in the place; and

• the delay caused by obtaining a search warrant will result in that evidential
  material being destroyed, concealed or impaired;

10. Agree that the power to search a vehicle incidental to arrest may be exercised when a police officer has reasonable grounds to believe that the vehicle contains evidential material relating to the offence for which the person was arrested;

11. Agree that non-police enforcement officers who have any statutory power of arrest have the power to search people, places and vehicles on the same basis as police officers under recommendations 6 to10;

12. Agree that a police officer’s authority to search a person following arrest for items that may cause harm or facilitate escape also apply to a person who has been detained pursuant to a statutory power of detention;

13. Agree that non-police officers who have a statutory power of detention have the power to search a detained person as proposed for police officers in recommendation 12;

14. Agree that the present power in section 57A of the Police Act 1958 to search an arrested person who is to be locked up in police custody be retained but it be made clear that a person should be regarded as being locked up if he or she is to be detained in secure custody in a police facility pending appearance in court, a decision as to the grant of police bail or for taking particulars under section 57 of the Police Act;

15. Agree that section 317(2) Crimes Act 1961 be repealed and replaced with a provision that authorises a police officer to:

• enter a place without warrant if he or she has reasonable grounds to suspect
  that in that place:

• take any action that the police officer has reasonable grounds to believe is necessary to prevent the offending from occurring or continuing, or to avert the emergency;

16. Agree that powers to enter places without warrant in emergency situations to protect people and property specified in recommendation 15 apply in the same terms to vehicles;

17. Agree that section 18(2) of the Misuse of Drugs Act 1975 be amended so that it can be exercised only if the officer exercising the power believes on reasonable grounds that it is not practicable to obtain a warrant;

18. Agree that the threshold to exercise the search powers in subsections (1), (2) and (3) of section 18 of the Misuse of Drugs Act 1975 be amended to accord with the general threshold proposed in Paper 1: Overview;

19. Agree that section 12A of the Misuse of Drugs Amendment Act 1978, relating to the controlled delivery of unlawfully imported drugs, be amended to authorise customs officers and police officers to search a place or vehicle as well as any person involved in the delivery;

20. Agree that the description of a controlled delivery contained in section 12 of the Misuse of Drugs Amendment Act 1978 be amended to meet changes in unlawful drug importing patterns;

21. Note that the Law Commission will consider as part of its review of the enforcement powers in the Misuse of Drugs Act whether the current maximum period for detention following the issue of a detention warrant under section 13E of the Misuse of Drugs Amendment Act 1978 is adequate;

22. Agree that the requirement for a commissioned officer of police to authorise a search under section 61 of the Arms Act in writing be repealed;

23. Agree that the power to search a person under section 202B of the Crimes Act 1961 be retained, but amended so that the threshold for search is reasonable suspicion rather than reasonable belief;

24. Agree that a police officer be able to enter and search any place if he or she has reasonable grounds to believe that relevant evidential material is in that place and reasonable grounds to suspect that an offence punishable by 14 years or more imprisonment has been, is being, or will be committed and the delay caused by obtaining a search warrant will result in the evidential material being concealed, destroyed or impaired;

25. Agree that a police officer be able to search without warrant a person or vehicle in a public place if he or she has reasonable grounds to believe that the person is in possession of, or the vehicle contains, evidential material relating to an offence punishable by 14 years’ imprisonment or more;

26. Agree that the power to search vehicles without warrant for stolen or dishonestly obtained property in section 225 of the Crimes Act 1961 be retained, but confined to stolen property;

27. Agree that the power to search a person or vehicle for stolen goods in transit under section 224 of the Crimes Act 1961 be repealed;

28. Agree that section 119(3)(c) of the Land Transport Act 1998 be amended so that the threshold is reasonable grounds to believe, not reasonable grounds to suspect, and that subsection (3) should also be amended so that the power to enter and seize a vehicle in terms of paragraphs (a) to (c) can be exercised only when it is impracticable to obtain a warrant;

29. Agree that police powers to stop a vehicle for the purpose of exercising a power to search the vehicle be governed by a single statutory regime incorporating the requirements, powers, and obligations contained in sections 314A to 314D of the Crimes Act 1961;

30. Agree that the search powers in section 13(1) of the Aviation Crimes Act 1972 and section 55(1)(b) of the Maritime Security Act 2004 be amended to require the member of police conducting the search to have reasonable grounds to suspect both that a relevant offence has been, is being, or is [about to be] committed and that a search of the person will disclose evidential material relating to that offence;

31. Agree that the Immigration Advisers Licensing Act 2007 be amended to provide that the power of entry to investigate offences in section 58 of that Act be exercised only when authorised by warrant issued by an independent officer acting judicially;

32. Agree that section 453(2) (a) and (b) of the Maritime Transport Act 1994 be repealed.

Hon Annette King
Minister of Justice

Date signed: