Drug Searches at Community Work Facilities

Random searches

There is no lawful authority to conduct random drug searches, either with or without warrant and whether by police or probation officers.

Probation officers are not lawfully entitled to conduct drug searches under any circumstances.

Search with warrant

Police can enter the premises to conduct searches if they have a warrant issued under the Summary Proceedings Act 1957. A search warrant can only be issued if the judge or other authorised person is satisfied that there are reasonable grounds for believing that any of the following are on the premises:

• anything in respect of which an offence punishable by imprisonment has been or is suspected of having been committed
• anything which there is reasonable ground to believe can be used as evidence to the commission of any such offence, or
• anything which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence.

If police have a search warrant in respect of an offence which has been or is suspected to have been committed against the Misuse of Drugs Act, or which is believed to be intended to be so committed, the police may search any person on the premises when they execute the warrant.

Legislative references:

• Summary Proceedings Act 1957
• Misuse of Drugs Act 1975.

Search without warrant

Police can enter the premises and conduct searches of a person without a warrant, provided they have reasonable grounds for believing that:

• a controlled drug is on the premises, and
• an offence under the Misuse of Drugs Act 1975 has been or is suspected to have been committed in respect of that drug.

Head office approval for surveillance

Before any surveillance operation is set up at a CW facility, head office must be consulted and give approval.

Implications

The implications for CPPS in the law relating to drug searches are as follows:

• Any indication that a drug search, with or without warrant, has been conducted in a random or ad hoc manner without particular evidence or an incident to alert suspicion, will almost certainly render the search unlawful.
• Searches carried out illegally, unreasonably or both, might result in:
  • the exclusion of evidence obtained, or
  • the person who was searched seeking compensation from the police and/or CPPS for breach of the New Zealand Bill of Rights Act 1990.
• The fact that such a search was carried out by police, with a warrant, would not absolve CPPS from responsibility if it was not possible to establish a genuine belief or suspicion by either party that an offence has been or is intended to be committed.

Legislative reference: New Zealand Bill of Rights Act 1990.

Policy

CPPS policy regarding drug searches are as follows:

1. Random drug searches are not to be conducted on CPPS premises under any circumstances.

Example: Making a decision to conduct a search a week in advance, in the absence of some specific facts or information that would provide ‘reasonable grounds for belief’ (even if the police were able to obtain a warrant) is likely to be found illegal and might also be unreasonable depending on the circumstances.

2. If a CPPS staff member becomes aware of a specific piece of information leading to a suspicion that an offence under the Misuse of Drugs Act has been or is intended to be committed at a CWC, they should inform the police at the earliest opportunity. The police will then make the decision on what action to take based on a consideration of all circumstances and discussion with CPPS staff involved.

3. Area managers are to meet regularly with their local police district manager under the provisions of the memorandum of understanding between police and the Department of Corrections, to ensure that processes and expectations in respect of drug searches are clearly understood by both parties.