Can Police Search Your Phone Without A Warrant? (Vic)

In Victoria, the powers and responsibilities of the police are set out in the Crimes Act 1958 and in the Victoria Police Act 2013. These acts set out the circumstances under which a person or a property may be searched and items seized, both with and without a search warrant. Given the increasing reliance on mobile phones, cases of police searching phones for evidence that an offence has been committed are becoming more common. However, it is unclear exactly when police can search your phone without a warrant in Victoria.

Police search of your phone without a warrant may lead to a voir dire

A voir dire is a pre-trial proceeding that is held to determine whether an item of evidence is admissible in the trial or hearing. In a case where a mobile phone’s contents have been searched without the owner’s consent, it may be necessary for a voir dire to be held to determine whether this was lawful.

In a voir dire, evidence is heard as to how the item of evidence was obtained. Each party makes submissions as to whether the evidence should be admitted into the trial or hearing. The judge or magistrates then makes a decision as to the admissibility of the evidence. If the matter is proceeding to a jury trial, the voir dire is determined by a judge without the jury present.

Why would police search your phone?

Police may want to search a person’s phone because they suspect it contains evidence that an offence has been committed or is being planned. They may believe it contains evidence of drug trafficking, of threats being made or that it contains prohibited material, such as child abuse material. They may also believe the phone to be stolen.

However, a person’s phone may also contain a wealth of information that is unrelated to the police’s search. This may include intimate photos, bank records, appointments, emails, message history and browsing history. It may also be the person’s main mode of communication, method of making payments and GPS.

Having a phone searched by police, therefore, involves significant privacy concerns. The seizure of a phone for an extended period can also cause significant inconveniences and practical problems.

Police can search your phone with consent

Under section 264 of the Victoria Police Act, the police may enter premises and conduct a search with the consent of the occupier. The police may examine and seize any item that they believe on reasonable grounds is connected with the alleged offence.

If police ask to search a person’s phone and the person consents to this, the police may go through the phone’s contents. It is unlikely that evidence obtained from a phone with the consent of the owner would be excluded during a voir dire.

Search with a warrant

Police may obtain a search warrant from a court to search premises or a vehicle if they suspect there is evidence of the commission of an offence on the premises or in the vehicle.

A court may issue a search warrant if satisfied there are reasonable grounds for believing there is a thing on the premises or in the vehicle that is connected with the commission of an offence.

Can police search your phone without a warrant? Passcode and PINs

Police cannot require a person to provide a passcode or PIN number without a warrant. However, if the police obtain a court order that a person is to provide these details so that they can access material stored on electronic devices, it is an offence not to cooperate. This offence carries a maximum penalty of five years imprisonment (or ten years if the offence being investigated is a terrorism offence).

Where crime has been committed

Under the Evidence Act 2008, police are permitted to seize items where there are reasonable grounds for believing:

• that an offence has been committed;
• that the items are evidence of the commission of an offence; and
• the person in possession of the item is implicated in the offence.

Getting your phone back

If the police have seized your phone or other items as evidence, they must provide you with a list of all items that have been seized. The police must only retain seized items for as long as reasonably necessary for their investigation. If you are not charged with an offence, you will be able to reclaim your phone and other items shortly.

Conclusion

Victorian legislation is unclear as to precisely when the contents of a phone may be searched during the course of a police search. Clarity on this issue may be provided by future decisions by Victorian courts.

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