Attempts to codify the law - that is, to capture the whole of the law on a given subject in a statute so that it is not necessary to refer to sources outside the statute to ascertain what the law is, except that judicial decisions may explain how the statute applies in particular circumstances - usually fail.
Some people thought that our Search and Surveillance Act 2012 codified the law relating to that subject, and indeed it does have a comprehensive feel about it. But, as a recent case from the Supreme Court of Canada illustrates, not everything is covered.
On arresting a person, an officer may search that person for anything that could be used to cause harm to anyone or to facilitate the person’s escape: s 85. Let’s call that a safety search, There doesn’t seem to be any provision concerning a safety search of the arrested person’s immediate vicinity.
The Canadian case, R v Stairs, 2022 SCC 11, addresses the power of safety search where the arrest is carried out at the person’s residence. To what extent can a safety search occur - in the same room, or beyond that in another room in the residence? For example, the person may be arrested in a bedroom, but then may need to use the toilet. Or the arrested person may need to be escorted through the kitchen, a room that is normally full of potential weapons.
Under s 85 a safety search does not require any grounds: there is no need for the officer to have reasonable grounds to suspect that the arrested person is carrying any of the sorts of items covered by the section. As long as the arrest is lawful, and the search is carried out for the purpose of locating such items, and it is carried out in accordance with the actions described in the section, it will be lawful.
Some searches do require grounds, and these can be one of two kinds: where the officer has reasonable grounds to suspect that the items of the kind described in the search power will be found, and those where the officer has reasonable grounds to believe that such items will be found. The thresholds for lawfulness in this respect can be either suspicion or belief. The statute will say which applies. We are concerned with warrantless searches here, and when these require grounds, the threshold of belief applies.
For example, s 83, referring to warrantless search of a place for evidential material relating to an offence for which the person has been arrested, requires reasonable grounds to believe the specified things. The same threshold applies to search of a vehicle: s 84. Similarly, the threshold of belief applies to the more extensive search of an arrested person pursuant to s 88.
In Stairs, the common law equivalent of our s 85 is described at [34], although it is wider than our s 85 insofar as it includes search for evidence of the arrest offence in addition to safety items. Also, there is a third, and lowest, threshold: there must be some reasonable basis for the officers action, that is, it must in the circumstances seem reasonable to check for safety items: [37]-[38].
In the context of constitutionally protected rights, a balancing of privacy and police objectives for safety searches of a home was necessary: [55]. For arrests that occur in the arrested person's home, distinctions are drawn between areas of the residence that are within the physical control of the arrested person, for which the common law standard applies; those which are proximate to the arrest, a contextual and case-specific inquiry: [60]-[61], for which the threshold is reasonable suspicion [66] (applying Chehil, discussed by me here on 3 October 2013), [82]; and those in more remote areas which, without a warrant, are prima facie unreasonable: [50].
So, some potentially useful gap-filling to which our courts may have occasion to refer. But an important consideration will be whether the omission of the kinds of search mentioned in Stairs from the New Zealand legislation was deliberate. The Law Commission’s report Search and Surveillance Powers, R97 (29 June 2007) at [5.30] significantly rejected a power to search beyond the person of the arrestee:
“ … a vast array of items in any home could cause harm or facilitate escape, ranging from wine bottles to keys to cutlery. To allow an incidental search for these purposes is in effect to authorise a fishing expedition (no matter how narrowly defined in terms of proximity to the exact place of the person’s arrest), because it would authorise looking for virtually anything.”
