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Mana Whanonga Pirihimana Motuhake

Police entry into house unlawful

29 October 2020

In July 2019 the Authority received a complaint from Mr X alleging an unlawful search of his property when he was arrested at his home south of Dunedin on 21 June 2019.

Police had gone to Mr X's home to arrest him for offences he had committed earlier in the week. When Mr X did not answer the door, an officer spoke to him through a window and told him he was under arrest. Mr X came to the front door armed with an axe handle. The Officers retreated and called for the Armed Offenders Squad (AOS) to attend.

Mr X did not respond to the AOS requests for him to come out of the house, so they entered it by force and arrested Mr X, following which his house was searched.

The Authority referred the matter to Police for investigation under the Authority's oversight.

The Police investigation found the initial entry onto Mr X's property was lawful based on the implied common law right for a person to enter the property of another and knock on the door to make enquiries. The investigation also found the subsequent entry and search by the AOS was lawful under the authority provided by section 8 of the Search and Surveillance Act 2012.

The Authority reviewed the Police investigation and disagreed with the finding in relation to the AOS entry.

Section 8 of the Search and Surveillance Act 2012 includes a requirement that Police have reasonable grounds to believe the person will leave the address to avoid arrest or the person may destroy, conceal, alter or damage evidence if entry is not affected immediately. The Authority found the AOS did not have reasonable grounds to believe these things before they entered Mr X's house, therefore the search was unlawful.

Police have acknowledged the Authority's finding on this issue and accepts their investigation was based on a significant misunderstanding about the application of s.8 of the Search and Surveillance Act in this and other cases. They have undertaken to issue a practice note nationally for staff to better understand the legal requirements.

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