Police Search Your Phone Without a Warrant (ACT)

In the ACT, police powers to search people and premises are set out in the Crimes Act 1900. The police are permitted to conduct searches of persons and vehicles without a warrant in some circumstances. The police also have the power to conduct searches with a warrant. However, the Crimes Act does not explicitly state whether or under what circumstances the police can search the contents of a person’s phone. This article examines whether the ACT police can search your phone without a warrant.

Why would the police want to search your phone without a warrant?

With phones and other mobile devices becoming increasingly central to everyday life, it is becoming more and more common for these devices to contain evidence of alleged criminal offences. The police may want to search your phone without a warrant if they believe it contains evidence of illegal transactions, prohibited material or correspondence relating to an offence that has occurred or is being planned.

However, because mobile phones are so essential to everyday life, they often contain very personal information about the user. The seizure of a phone may therefore represent a significant privacy concern. It may also pose practical problems if the phone is retained by police for a long time as people rely on their phone to communicate, pay for things, take photos, access information online and navigate.

Voir dire after police search your phone without a warrant

When the police search the contents of a person’s phone without a warrant and criminal charges are subsequently laid, questions may arise as to whether the search was lawful. In this situation, a voir dire may need to be held.

A voir dire is a pre-trial proceeding that determines whether an item of evidence is admissible in the trial or hearing. Evidence is heard as to how the item of evidence was obtained and the defence and prosecution make submissions as to why the evidence should or should not be admitted. A judge or magistrate will then decide whether to admit or exclude the evidence. If the matter is to be decided by a jury, the voir dire will be heard by a judge alone.

Given the current legislation is unclear as to precisely when police have the power to search your phone without a warrant, in circumstances where this occurs, it may often be necessary to hold a voir dire to determine whether the police acted lawfully within the powers conferred on them under the act.

Powers to stop and seize

The Crimes Act permits the police to stop a person and search and seize property from them without a warrant if they believe that:

• the person has possession of stolen property or of a thing relevant to a serious offence;
• it is necessary to exercise the power to prevent the thing being lost, destroyed or concealed;
• the circumstances are serious and urgent.

If the police find evidence during such a search, they may seize it if necessary.

Although this provision does not specifically allow police to search your phone without a warrant, in some circumstances this may occur. Whether it is reasonable for police to go through a person’s phone when conducting a search under this provision will depend on what the police believe the person has in their possession. If they are searching for material that is likely to be stored on a phone or other electronic device (such as child abuse material), it is likely that their search would extend to looking through the contents of a phone.

If the search is for something that is not stored electronically, such as drugs, it is less likely that this would occur. If the police search the contents of a person’s phone in circumstances where this was not necessary or appropriate, and charges are subsequently laid, a voir dire may need to be held to determine the legality of the search.

Searches with warrants

Under section 194 of the Crimes Act, the police can obtain a warrant to search premises if they believe there is evidential material at the premises. The warrant must state the kind of evidential material being searched for and include a description of the premises.

If the police are searching for material that is commonly stored electronically, they may seek to search the contents of a phone as part of a search under this provision.

Passcodes and PINs

A search warrant does not authorise the police to require a person to disclose the passcodes or PINs to their phone or other devices.

If the police suspect that evidence is stored electronically on computers, phones or other devices and these devices are protected by passcodes or PINs and the owner does not consent to the device being searched, they must apply to the court for an assistance order requiring the owner to provide these details. This application is made under section 3LA of the Commonwealth Crimes Act 1914.

It is a criminal offence to fail to comply with an assistance order. This offence carries a maximum penalty of five years imprisonment (or ten years if the offence being investigated is a terrorism offence).

If you require legal advice or representation in relation to police searching your phone without a warrant or in any other legal matter, please contact Armstrong Legal.