Chapter 21

Creating powers of search, surveillance and seizure

This is a single section from Chapter 21. Read the full chapter here.

Part 2

Is a warrant required for the exercise of new search powers?

All searches for law enforcement purposes should be carried out under a warrant unless there are good reasons why a warrant should not be required.

The starting point is that all law enforcement searches should be carried out under a warrant issued by an independent judicial officer.

Warrantless search powers can be exercised without independent judicial oversight; therefore, a compelling reason must exist to create them. Generally, a real risk must exist that some serious harm or damage will occur or evidence will be lost if officers are required to obtain a search warrant.

However, consideration must still be given to whether or not any risk can be satisfactorily addressed by obtaining a warrant but delaying notice to the person or the occupants of a property that is the subject of the search. In the law enforcement context, compelling reasons must exist for granting warrantless search powers in respect of non-imprisonable offences.

In the regulatory context, it may be appropriate to allow warrantless inspections to take place without notice if it is the only effective way to ensure that certain regulatory standards are being adhered to (for example, the inspections of restaurants). Regardless of the context, all search powers must be proportionate to their objectives and all searches must be carried out by properly authorised and trained officers.

Warrantless search powers should rarely extend to dwelling houses or marae and only in circumstances where there is a compelling justification for such a high level of intrusion. Such powers should rarely be granted in the regulatory context.