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This article is focused on New Zealand law and explains issues from a Common law perspective.
New Zealand Police powers of entry and search
Protection under the Bill of Rights
The NEW ZEALAND BILL OF RIGHTS ACT 1990 gives us protection from unreasonable search and seizure (see How to know your rights when arrested).
When can a NZ search warrant be issued?
A search warrant may be issued by a court if there are reasonable grounds for believing that in any building, vehicle or other place there is:
- anything on which or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed
- anything that there is reasonable ground to believe will be evidence that an imprisonable offence has been committed, or
- anything that there is reasonable ground to believe is intended to be used to commit an imprisonable offence
The search warrant should describe the place being searched, the offence involved and the items being searched for.
Generally search warrants apply only to premises and do not give the Police the right to search the people there. (Note, however, that under the MISUSE OF DRUGS ACT 1975 Police have the power to search people while legally conducting a warrant-less search of the premises.)
Search warrants & access to computersPolice executing a search warrant on your property may require you to give them information or assistance to allow them to access data that's held on your computer or that's accessible from it. You can be required to do this only if:
- you are the owner or hirer of the computer, or someone who has possession or control of it, or an employee of one of those people, or
- you have relevant knowledge of the computer or computer network, or of the computer's data-protection measures
When can the Police search premises without a warrant?
Unless they have a warrant, the Police generally only have the power to search premises when the occupier permits them to do so. They cannot enter or remain on the premises uninvited. There are, however, exceptions for firearms and drugs (see below).
Entry without warrant
The Police can enter without a warrant to arrest you if:
- they reasonably suspect you of committing a crime on the premises, or
- they have found you committing an offence and are freshly pursuing you
They can also enter to prevent an offence if they suspect that an offence likely to cause immediate and serious injury to any person or property is about to be committed.
Personal search after an arrest has been made
After you have been arrested the Police can carry out a personal search â€“ that is, they can search your person and your possessions without a warrant. However, even if they have entered your house to arrest you, they still do not have the right to conduct a general search of the premises.
The Police must arrest someone before they have the right to search him or her, unless a suspect consents to a search.
Powers of entry or search in the case of firearms or drugs
The Police also have certain statutory powers of entry to search for firearms or drugs.
As with searching premises, the Police have the right to search a person if they believe that firearms or drugs are being concealed.
Powers of entry and search in relation to abused or ill-treated children
A warrant can be issued authorising a Police officer or a social worker from the Department of Child, Youth and Family Services to search for a child suspected of suffering abuse or harm. These are generally known as "place of safety warrants". If the officer or other person carrying out the search believes that the child has been subjected to abuse or serious harm, he or she may remove the child and place him or her in the custody of Child, Youth and Family Services.
The court can also issue a warrant to remove a child if care and protection proceedings have been started in the Family Court for that child and there are reasonable grounds to believe that the child is suffering abuse or serious harm. The Police can then enter and search for the child.
The Police can enter and search without warrant to remove a child if they believe this is critically necessary to protect the child from injury or death.
- If the Police intend to conduct a search of you or your premises, you have the right to speak to a lawyer privately, and you should contact one urgently.
- If the Police conduct an unlawful search, you may be entitled to have them pay you damages.
- Authorised people who mistakenly execute a warrant are protected from criminal responsibility provided they acted in good faith under the belief that they had authority to take the action they did. The same applies if the warrant is discovered to be legally invalid.
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