Can Police Search Your Phone Without a Warrant? (NSW)

In New South Wales, the powers and responsibilities of police are set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). In some situations, police may conduct searches of people and properties without a search warrant; in other situations, a warrant is required. However, there is no express provision in the LEPRA that relates to going through the contents of a person’s phone and it is currently unclear to what extent this is permissible under the act. This article considers whether police can search your phone without a warrant in New South Wales.

Power to search and seize without a warrant

Under section 21 of the LEPRA, NSW police can search, seize and detain a person and anything in their possession 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;
• The person is in possession of a prohibited plant or drug.

In these situations, the police may seize and detain:

• The item that is stolen;
• The drug or plant;
• The dangerous article;
• Evidence of the commission of a relevant offence.

What is a relevant offence?

An offence is a relevant offence if it is:

• 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.

Can police search your phone without a warrant in these situations?

Under this provision, NSW police could seize a person’s phone if they believed the phone was stolen. They could also seize a phone that was likely to contain evidence that a relevant offence had been committed or was being planned.

Power to search and seize items in a car

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.

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

Under section 27 of the LEPRA, 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;
• Anything that was used in connection with the commission of an offence.

A phone could therefore be seized following an arrest if it was thought to contain evidence of an offence, to have been used in an offence, or to be stolen.

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.

Power to examine anything in person’s possession

Under section 30 of the LEPRA, police may examine anything in a person’s possession when conducting a search of the person.

There is no specific reference to phones in this provision. There is nothing to prohibit police from looking through a person’s phone, but it is unclear whether a court would uphold a search that involved police looking through material contained on a phone that is clearly unrelated to the suspicion that led to the search.

Can police get your passcode?

The police cannot force a person to disclose their passcode or PIN number without a warrant. However, under the Commonwealth Crimes Act 1914, police can apply to a court for an assistance order to gain access to an electronic device if it is believed to contain evidence of a crime. It is an offence not to comply with an assistance order.

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