When the Police can Seize and Search a Phone

Police are well aware that mobile phones can contain critical evidence, data and information about the commission of a criminal offence. From messages between an accused and an alleged victim, photographs or videos of an offence being committed or encrypted applications used for communications about illegal activities such as drug supply or sharing of child abuse material; there is often material on phones that the police want to obtain.

Police can obtain this evidence in the following ways:

1. By consent;
2. General powers to search and seize items without a warrant;
3. Pursuant to a search warrant; or
4. With a Digital Access Order (NSW) or 3LA Order (Cth).

By consent

One of the most common ways that police will seek to obtain information from a person’s phone is by simply asking for it. This happens commonly when police are responding to or have just detected a crime (such as a domestic violence matter or witnessing a drug supply), as opposed to a long standing investigation whereby a search warrant has been obtained. 

The police can simply ask a person for their phone and for their password. A phone which is unlocked and handed over by consent is, generally speaking, obtained lawfully by police. However, it may be possible to object to the evidence. 

In the experience of our lawyers, many people make the mistake of not exercising their right to silence, handing over their phone by consent and/or agreeing to unlock their phone simply because the police ask, they police tell them they will seize it if they don’t or under the impression they will ‘get their phone back sooner’ if they comply. While the police may have powers to seize a phone, or apply for an order to get access to the phone, that doesn’t mean a person should hand their phone over – particularly if there is potentially incriminating evidence on it. 

Power to search and seize without a warrant

Under section 21 of the Law Enforcement (Powers and Responsibilities) Act, NSW police can stop, search and detain a person (and anything in their possession or under their control, such as a mobile phone) if they believe on reasonable grounds that any of the following circumstances exist:

• The person is in possession of something stolen or unlawfully obtained;
• The person is in possession of something used or intended to be used in the commission of a relevant offence;
• The person is in possession in a public place of a dangerous article for use in the commission of a relevant offence; or
• The person is in possession of a prohibited plant or drug.

A relevant includes:

• Any indictable offence;
• An offence against the Weapons Prohibition Act 1998 or Firearms Act 1996;
• An offence against Part 2 of the Explosives Act 2003;
• The offence of possession of dangerous articles other than firearms in a public place, contrary to section 93FB of the Crimes Act 1900.

Under section 36 of the LEPRA, NSW police may stop, search and seize a vehicle under similar circumstances to those set out above.

In these circumstances, police may seize and detain a thing (including a phone) that they suspect is stolen or a thing that they suspect may provide evidence of the commission of a relevant offence.

In these situations, the police may seize and detain the item and/or evidence of the commission of a relevant offence. This often includes a mobile phone which may contain evidence of a relevant offence. 

However, just because the police can stop a person, search them and seize their phone, doesn’t mean the police can force the person to unlock the phone because they believe the phone was used in the commission of a relevant offence (such as to send messages to coordinate a drug supply or stalk a person). Generally speaking, most phones won’t be unlocked or accessed by police without a pin code or passcode. For this reason, it is usually in a person’s interest not to unlock the phone for the police unless there is a separate order requiring them to do so. 

Can police search your phone without a warrant when you’ve been arrested?

Under section 27 of the Law Enforcement (Powers and Responsibilities) Act, when NSW police arrest a person for an offence, they can search the person if they suspect on reasonable grounds that it is prudent to do so to ascertain whether the person has in their possession:

• Anything that would present a danger to a person;
• Anything that could be used to escape from custody;
• Anything with respect to which an offence has been committed;
• Anything that will provide evidence of the commission of an offence; and
• Anything that was used in connection with the commission of an offence.

Accordingly, a phone may be seized following an arrest if it provides evidence of an offence, was used in connection with the commission of an offence, or was used with respect to an offence.

Under section 28A, the police can search a person who has been arrested and is in custody and seize anything that they have on them. This can only occur at a police station, at a place of detention or before or during transportation to one of these places.

Can police demand your passcode?

The police cannot force a person to disclose their passcode or PIN number unless they have been granted:

1. A Digital Access Order (NSW); or 
2. A 3LA Order (Commonwealth).

These orders require a person to give police access to specified electronic devices and the data contained in them. In practice, this means that police can compel a person to provide any necessary passwords, passcodes, fingerprints, facial recognition or multifactor authentication to allow access to the device itself, as well as access to the data contained on it. 

Getting legal advice

The laws and powers surrounding the police’s ability to stop, search, seize and access phones are very complicated. Police getting access to a phone can be catastrophic for a person if the police find evidence of an offence or offences on that phone. It is imperative that persons get legal advice as soon as possible and before they hand over a phone and/or give access to it.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.