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Rights with the Police: Questioning and Searches

Rights with the police: Questioning and Searches

Sometimes when the police stop you, it’s because they suspect you’re involved in a crime. To find out who the criminal is, the police will need to go through a series of questioning and searches, so they’re able to get evidence to support their case.

This section lets you know about your rights with the police when you’re being questioned or searched by them.

A police officer has stopped me and is asking me questions, what should I do?

If the police come and ask you questions:

  1. Make sure they’re actually a police officer. If you’re not sure, you can politely ask for their proof of identity.
  2. You can find out why the police have stopped you, if you aren’t told when you’re stopped, ask why and whether you’re under arrest.

If you’re not under arrest and you don’t want to speak to the police, you have the right to walk away, let them know you’re leaving because you under you’re not arrested.
If you’re arrested, you may have to go with the police.
If you’re carrying a firearm or suspected of underage drinking, you have to give the police your full name, date of birth and address. If you refuse, you can be arrested.

The rules are slightly different if you are driving.

A police officer has stopped me and is asking me questions while I am driving, what should I do?

If you’re driving, you have to give the police your name, date of birth and address. If you refuse, you can be arrested.
If you’re in a car accident, you also have to give them your licence, car registration details, and information about who was driving the car when the accident happened.
If the police have reason to believe you have drugs in your car, they can search your car without a warrant.
If you’re not sure whether they’re a police officer because they’re not in uniform, you can politely ask for their proof of identity.

What do I do if I’m stopped by the police for a drink driving test?

Sometimes, you’ll see police cars on the side of the road at night, asking drivers to take a sniffer test. It is best not to turn around and drive the other way as that might get you into more trouble.
If you refuse or you fail the breath-screening test, the police can require you to go to the police station for an evidential breath test or blood test. If you refuse, you can be arrested.

Do I have to be informed of my rights by the police if they want to talk to me?

The police only have to inform you of your rights if you have been arrested. Otherwise, the police are not required to inform you of your rights.

Remember that if you’re not arrested, you are free to politely tell the police you’re leaving because you haven’t been arrested and walk away.

Do I have to tell the police anything if they take me into custody?

If you’re in custody, you have to give the police your name, address and date of birth. If you don’t and are found guilty, the maximum penalty is a fine up to $5,000 and/or imprisonment for up to three months.

Apart from these details, you have the right to silence and do not have to answer any other questions. If the police suspect you of committing a crime, it is best to talk to a lawyer before answering any questions. This includes answering questions verbally, in a written statement, or on video.

You are allowed to call a lawyer before answering any questions. The police have a free lawyers list (PDLA) which you can ask for and call.

Can I give the police false information?

It is important to be truthful to the police when supplying your details and statement. Otherwise, they could arrest you for giving false information to them. Giving false information to a police officer is a crime with a maximum prison sentence of up to 3 years. If you don’t want to provide the information, remember you have a right to silence.

Do I have to go with the police if they ask me to (17 years and above)?

The police may ask you to accompany them to the station to help them with their inquiries, or ask you to step outside to answer some questions. However, you do not have to go anywhere with them unless you have been arrested. If you do agree to go with the police somewhere and have not been arrested, you can change your mind and politely leave at any time. You should always ask if you have been arrested if you’re not sure.

Do I have to go with the police if they ask me to (under 17)?

Additional to the rules that apply to 17 years and above, the police can also take you home if you’re under 17 and “at risk”. You can be “at risk” if you’re drunk, at the risk of being abused or hurt, homeless, or just not in a safe environment. If you don’t wish to be taken home or feel unsafe going home, tell the police, and they should take you to a youth residence home or a shelter. If you disagree, the police can take you into custody. You cannot be kept in custody once you sober up unless a health professional recommends that you cannot take care of yourself. The maximum period of time you can be in custody without a health professional’s opinion is 12 hours. MCOT might also get involved.

What are my rights if I am being questioned by the police (17 years and above)?

If the police are questioning you as a suspect, they should tell you:

  • Your right to remain silent – you do not have to answer questions or make a statement except for your name, date of birth and address.
  • If you agree to answer questions or make a statement, you can change your mind and stop at any time.
  • If you make a statement (in writing) or answer questions this may be used as evidence in court.
  • You have the right to consult a lawyer. If you do not have a lawyer, you can ask the police for a list of lawyers on duty for free.

If you’re not arrested or detained, the police do not have to tell you of your rights, but you can also leave at any point.

What are my rights if I am being questioned by the police (under 17 years)?

Additional to the rights that apply to 17 years and above, you also have more rights if you’re questioned as a suspect:

  • The police must inform a family member that you have been taken into custody.
  • You have the right to an independent nominated person (INP).

Give me some top tips when I’m being questioned by a police officer!

Remember:

  • always keep a clear head;
  • stay polite;
  • call the police officer Sir or Madam;
  • do not swear or insult the officer;
  • Although your legal rights are important, being cheeky or smart when being questioned or searched will usually not be in your best interests;
  • Do not try to stop, or resist an officer if he or she has the authority to search you. You can get arrested for obstruction if you try to prevent the search.

Questions to ask:

  1. “Am I under arrest?”
    If they say “Yes”, do not run away or resist.
    If they say “No”, you are free to leave. If you wish to leave, tell the police officer “Sir/Madam, I understand I’m not under arrest, I understand that means I don’t need to stay here. I’ll be leaving now.”

What is an Independent Nominated Person (INP)?

If you’re under 17 and in custody, when the police interview you, you have a right to have an independent nominated person (INP) with you. This is your choice of an adult (a parent or any other independent adult, 20 years and older) who is there to support you while you’re being interviewed by the police. If you don’t choose someone or the police can’t find the person you chose, the police will choose an independent person on your behalf.

What does the Independent Nominated Person do?

The Independent Nominated Person (INP) has to take reasonable steps to make sure you understand your rights with the police, and they have to support you before and when you make a statement to the police.

You can have a private chat with your INP before making a statement with the police so you’re on the same page. If you have been arrested, a police officer must be guarding you at all times though, and the consultation will be subject to reasonable conditions to ensure safety or to prevent a crime from happening.

What happens if the police don’t like the independent nominated person I’ve chosen?

The police can refuse to allow you to have a particular person as an independent nominated person (INP), if the police reasonably believe that this person will try to interfere with the fairness of the process, or if the person cannot be found or it will take them too long to come.

If this happens, you should be allowed to choose another INP. If you don’t choose anyone, or if everyone you choose fits in that category, the police may choose someone independent for you.

Are my parents told if I’m questioned by the police?

If you’ve been arrested for questioning as a suspect in a crime, even if you don’t nominate your parent, guardian or caregiver as the independent nominated person, the police must still inform them that you are being questioned at the police station.

What should I do if I was not informed of my rights when being questioned as a suspect?

If the police do not inform you of your rights when you’re suspected of committing a crime and they later charge you with a criminal offence, make sure you tell your lawyer about this as this may be extremely helpful in defending your court case.

Can the police search me?

The police can only search you, your belongings, your home or your car if:

  • you let them (you’re at least 14 years old);
  • you’re arrested;
  • they have a search warrant;
  • there are reasonable grounds to suspect you have illegal drugs or an offensive weapon on you;
  • there are reasonable grounds to believe you have evidence relating to a serious crime (with a maximum prison sentence of 14 years or more);
  • you’re in a public place where there is a liquor ban and they are searching for alcohol;
  • you’re in transit (i.e. in an airport, railway station or other such places) and they have reasonable grounds to believe that you have property that has been stolen or unlawfully obtained.

If the police officer is “undercover” or in plain-clothes, you can ask to see their warrant card or police identification.

Can the police search my body?

The police can only search your body (or do a “pat-down”) without a search warrant if they reasonably believe you are carrying drugs or an offensive weapon. They can also search you for anything that can help you get away or harm someone if you’ve been arrested.

If you’re being searched under the Misuse of Drugs Act (aka for drugs), the police must tell you so and identify themselves.

If the police want to strip search you, it must be justified, and you must be searched by a police officer of the same sex. For example, if you are being searched and are a female, you should be searched by a female police officer, or you can ask to be searched by a female police officer.

Can the police search my home without a warrant?

Generally, the police need a search warrant to search your home.  They can search your house without a warrant if:

  • you give them permission;
  • they have good reasons to suspect drugs are on the property;
  • there is an emergency with risk to safety;
  • there are illegal firearms;
  • they believe there is evidence relating to a serious crime (with a maximum prison sentence of 14 years or more);
  • they believe someone in your home has escaped from prison or there is an arrest warrant for this person;
  • there is an emergency to do with national security.

Otherwise, they need a search warrant to search your house.

Can the police search my car without a warrant?

The police can search your car without a warrant based on the same reasons as searching your home.

The police do not need a search warrant to search your car if:

  • you give them permission;
  • they believe it has stolen property in it or property from a crime involving dishonesty;
  • they reasonably believe that you are carrying drugs or certain types of weapons.
  • you give them consent to.

Otherwise, they need a search warrant to search your car.

I don’t want the police to search me or my things, what should I do?

If the police ask to search you, your vehicle, belongings or home and you do not agree, make it clear that they do not have your permission, as silence can be taken as agreeing and giving consent.  Say “Sir/Madam, I do not agree to being searched, can you please tell me the lawful authority for searching me?”

If the police have a search warrant, they should hand that to you in a letter before searching you.

Make a note of their answer.  It is also a good idea to take a note of the police officers’ names and badge numbers. Their numbers are displayed on black discs, usually located on their shoulders.  Do not resist if the officer continues to search you despite your lack of consent.  Ask your friends to stay so they witness the search.  If you wish, you can complain about the search afterwards. You should also tell your lawyer if you’ve been charged.

When can the police get a warrant to search my home?

The police can apply for a search warrant if they have good reason to suspect a crime with a prison sentence has been, is being, or will be committed AND they have reason to believe that there is evidence relating to that crime on your property.

A judge will issue a search warrant if they think the police have enough evidence to support their belief.

What does a search warrant say?

A search warrant should say:

  • the offence which the police thinks you (or someone linked to your home) have committed or will be committing;
  • the location the warrant is for, e.g. address;
  • the things (or people) to be searched;
  • the period of time that the warrant is valid.

The police must show you this search warrant if they want to search you or your property with a warrant. Otherwise, they can’t search you unless it is one of the exceptions.

Can I be searched while I am in custody?

Generally, if you have been taken into lawful custody, the police can use reasonable force to search you. Any money or property found on you will be taken away until you’re released.

If the police want to strip search you, it must be justified, and you must be searched by a same-sex police officer.

Give me some TOP TIPS when I am asked to be searched by a police officer!

Remember:

  • always keep a clear head;
  • stay polite;
  • call the police officer Sir or Madam;
  • do not swear or insult the officer;
  • Although your legal rights are important, being cheeky or smart when being searched will usually not be in your best interests;
  • Do not try to stop, or resist an officer if he or she has the authority to search you.  You can get arrested for obstruction if you try to prevent the search.

Questions to ask:

1. “Am I under arrest?”
If they say “Yes”, do not run away or resist.
If they say “No”, you are free to leave and if you choose to do so, you can politely tell the police officer you’re leaving because you are not under arrest.
2. “Sir/Madam, I do not agree to being searched, can you please tell me the lawful authority for searching me?”
If you don’t agree to being searched, let the police officer know you do not consent.
Make sure you write down exactly what the officer says, or, if possible, get a friend to be a witness.

What search rights do I have under the Bill of Rights Act?

Everyone has the right to be free from unreasonable search and seizure under s21 of the New Zealand Bill of Rights Act 1990.

If you feel harassed or improperly searched and you want to make a formal complaint, you should contact YouthLaw or your local community law centre or a lawyer.

If you’re hurt or ill as a result of an unreasonable search, you should ask to see a doctor straight away. If you have any marks or bruising, get a friend to take colour photographs of them and ask a doctor to note down your injuries.

What happens if the police searched me unreasonably or illegally?

If the police didn’t follow the right process in searching you, you can make a complaint about the illegal search.

Also, you should tell your lawyer if you have been charged for a crime linked to the evidence found in the search. The judge may decide to leave out that particular item from evidence in court if the evidence was obtained illegally.

For more information, check out the CLC manual.

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