Powers of Search

Search warrants - s334 and s335 of the RMA

Under s334, an application for a warrant for entry to search can be made where there are reasonable grounds for believing an offence has been committed that is punishable by imprisonment. In particular, warrants can be obtained to search for specified things where there are reasonable grounds to believe that they:

  • are on or in any place or vehicle, and

  • will provide evidence of the offence or are intended for the purpose of committing the offence.

As indicated by the wording of the second item above, a search warrant can be pre-emptive.

The power to seize applies not only to what is specified in a warrant, but also to any other thing for which the enforcement officer or constable reasonably believes a warrant could have been obtained for.

Note that some RMA offences are not imprisonable, such as noise notices under s327 and s322(1)(c).

Section 335 provides that the warrant must be executed by either a constable or an enforcement officer accompanied by a constable. There are various requirements under s335(4) to show the warrant, to leave written notice of the search if the owner/occupier is not present at the time, and to send a list of taken items to the owner or occupier.

Illegal and unreasonable searches

If a search breaks any law or breaches the legal rights of any person (such as failing to provide proper notice), a judge may exclude, from consideration, the evidence that was obtained. Section 30 of the EA applies in such circumstances. The judge will consider things such as, "whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used".

A search may also be unreasonable or 'unfair' even if legal. An example is when there was no good reason to enter, or to enter with force, after permission was refused. Section 21 of the New Zealand Bill of Rights Act requires that any search or seizure undertaken in the exercise of a public function must be reasonable. Proceedings in relation to s21 of the Bill of Rights Act may also result in monetary damages or compensation being awarded.

Previous cases are still relevant to the extent that they are consistent with the provisions and purposes of the EA .

In Hamed v R [2011] NZSC 101 the Supreme Court held that video surveillance could constitute a search if the subject matter of the surveillance was not a place that was within public view.

In considering whether a search is unreasonable the Supreme Court held that it is necessary to look at the nature of the place or object being searched, the degree of intrusiveness into privacy and the reason why the search was occurring.

Power to require certain information - s22 of the RMA

The RMA gives enforcement officers the power to require a suspect to provide information as to their identity.

Under s22 of the RMA, if the officer has reasonable grounds to believe that a person is breaching or has breached any obligations under this part, the officer can direct him or her to give the officer the following information:

  • if the person is a natural person, their full name, address and date of birth
  • if not, the person’s full name and address only.

The officer can also direct the person to give the following information about another person on whose behalf they are breaching or have breached any obligations under Part 3 of the RMA:

  • if the other person is a natural person, their full name, address and date of birth
  • if not, its full name and address only.

It is an offence not to provide this information (s338(2) of the RMA).