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

In Western Australia, police can issue a search warrant under a number of different legislative schemes. These include the Criminal Investigation Act 2006, the Weapons Act 1999 and the Misuse of Drugs Act 1981. Police in WA also have the power to search people and premises without a warrant under some circumstances. In some cases, this may include searching and/or seizing a mobile phone. This article examines whether police have the power to search your phone without a warrant in WA.

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

A voir dire is a pre-trial proceeding that is conducted where the defence and prosecution disagree as to the admissibility of evidence in a criminal matter. During a voir dire, parties make submissions as to why an item of evidence should or should not be admitted into evidence during the trial or hearing.

If police search your phone without a warrant and find evidence of an offence, it may become necessary for the legality of the search to be determined by a court in a voir dire.

Searches with consent

If the police obtain a person’s consent, they may search the person and their property. Under section 23 of the Criminal Investigation Act, a person is taken not to have consented to a search if they resist the search or do not reply when asked for consent to conduct a search.

Section 30 of the Criminal Investigation Act allows police to exercise any of the powers that they can exercise with a search warrant without a search warrant where informed consent is given.

Informed consent is given where a person is told:

• Of the powers the officer wants to exercise;
• Of the reasons the officer wants to exercise those powers;
• Of the fact that they may refuse to give their consent.

WA legislation makes no express mention of mobile phones in relation to searches with consent. Where a person gives informed consent to police going through the contents of their phone, it is unlikely that any evidence obtained would be excluded from criminal proceedings in a voir dire.

Searches in open public places

The police can search a person in a public open area without a warrant if they suspect that a thing that is relevant to an offence, or a person who has been the victim of an offence, is in the area. The act places some limitations on this power. Police are not allowed to damage or destroy anything in the public open area. They must not dig up the ground or seize anything that is attached to the land without the consent of the person who has control and management of the area.

This provision does not make mention of mobile phones in particular. If the police were to search your phone without a warrant under this power, it is likely the admissibility of any evidence that was obtained would depend on the circumstances of the case and the reasons police had for suspecting that the phone contained evidence.

Searches of vehicles without a warrant

The police have the power to search vehicles in order to prevent offences, to keep the occupants of the vehicle safe, to prevent damage to the vehicle or to stop an offender from leaving the scene of a crime. To do this, a police officer may stop, enter, search and inspect the vehicle and take any reasonably necessary action (section 38). It is unclear whether this power extends to searching through the contents of a mobile phone.

Can police search your phone without a warrant? Passcodes and PINS

The police cannot require a person to supply their passcode or PIN without a court order. Therefore, when an electronic device is suspected to contain evidence and the owner does not consent to its contents being searched, the police will need to apply to a court for an assistance order requiring these details to be supplied. This order is made under section 3LA of the Commonwealth Crimes Act 1914.

It is a criminal offence not to comply with an assistance order. This offence carries a maximum penalty of imprisonment for five years or a fine of 300 penalty units or both. If the offence being investigated is a terrorism offence, the maximum penalty increases to ten years imprisonment and/or a fine of  600 penalty units.

Conclusion

As people rely more and more on mobile phones to manage many aspects of their lives, there are significant privacy concerns with these devices being searched without a person’s consent. A person’s phone may contain photographs, appointments, bank details, medical records and their search and message history.

Current WA legislation on police searches does not clarify under what circumstances police may search through the contents of a mobile phone. Future decisions by WA courts, in response to the defence challenging the legality of police searches, may provide clarity on this issue.

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