This right is routinely ignored by the State,[2] which is able to exercise unlimited powers of search and seizure against private individuals.
This right to be free from unreasonable search and seizure is primarily concerned with protecting the privacy interests of individuals against intrusions by the State.
While the courts have not formed a single definition, Elias CJ has said that police investigation which invades private space where individuals have an expectation of privacy constitutes a search.
[13] McGrath J recognised "search" has a broad meaning in terms of section 21 of "an examination or investigation for the purpose of obtaining evidence".
If a police officer simply sees something relating to an offence in the course of their normal duty without any conscious effort to find it then there will generally not be a search.
The use of surveillance equipment and whether covert recording amounts to a search has been a significant issue for New Zealand courts.
In Tararo v R (2010)[19] the Supreme Court held that an undercover police officer video recording a drug transaction was not a search due to the low expectation of privacy.
Covert surveillance of public areas will generally not be search due to the low expectation of privacy.
Police entry on to property outside of statutory powers may be lawful and reasonable where an implied license exists.
An implied license permits an officer to “go to the door of private premises in order to make inquiry of an occupier for any reasonable purpose”.
Finding this evidence will not be an unlawful search as a result of trespass as the officer is lawfully on the property, this was the scenario in Tararo v R (2010)[31] For this reason the scope of implied licenses is strictly limited in New Zealand.
[38] S30 requires the judge to conduct a balancing exercise to decide whether the exclusion of the evidence is a proportionate response to the impropriety or breach of s21 committed.
The factors that the judge will have regard to in the balancing process are given in s30 (3) of the Evidence Act 2006, these include: A useful example of this process in action is Hamed & Ors v R (2011)[39] where police unlawfully filmed activities on private land and parts of the evidence obtained were ruled admissible while other parts were inadmissible under the balancing process In rare cases damages may also be available for breaches of s21 of the NZBoRA 1993 where the court wishes to highlight its disapproval of a breach of a fundamental right.