Despite it being a commonly held belief, police don’t actually have the power to simply walk up to someone on the street, demand they hand over their phone and then trawl through it. Rather, there are certain laws that officers are required to abide by.
Many of the powers NSW police officers have – and the procedures they’re required to follow when enforcing them – are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which is commonly referred to as the LEPRA.
And even though almost everybody these days owns a smartphone that stores their personal information, the LEPRA doesn’t contain provisions specifically addressing the seizure of these devices – except in times of public disorder. Nor does it directly set out the rules for searching their contents.
Indeed, when the LEPRA was drafted, there was no general awareness that in the not too distant future, people would be walking around with electronic devices that store masses of private information. That being so, many feel it is high time for the deficiency to be addressed.
In the meantime, here are the laws which currently relate to the issue of searching a person’s mobile phone without a warrant.
Can police search and seize your phone without a warrant?
There are two main sets of circumstances whereby a NSW police officer may stop and search a person without a warrant, and then seize and confiscate items the person has in his or her possession, such as a mobile phone.
Section 21 of the LEPRA empowers police to stop and search a person if the officer has a suspicion on reasonable grounds that they’re in possession of a stolen item, an illicit substance, or if they have a dangerous weapon related to a crime, or anything else used or intended to be used in an offence.
The section also permits an officer to seize and detain an item in the person’s possession, if the officer has a reasonable suspicion that it’s stolen, or that it has or will be used in committing an offence, or contains evidence of an offence.
Under section 36, police can stop and search a vehicle in similar circumstances to what’s just been set out, as well as seize and detain items for the same reasons. In addition, police can search a vehicle if it’s in the vicinity of a public place or a school and is “likely to give rise to a serious risk to public safety”.
Are there other circumstances that apply?
There are two other situations set out in the LEPRA that allow police to seize mobile phones without a warrant, and both are in the context of a person having been formally arrested.
Section 27 of the LEPRA stipulates that a police officer can search a person on or after their arrest if he or she has a reasonable suspicion they’re carrying something that poses a danger, or could allow them to escape, or has been used or was to be used in an offence, or could provide evidence.
And section 28A allows police to search a person in lawful custody after their arrest and seize anything they have on them. This must be carried out at a police station, a place of detention, or immediately before or during transportation to one of these places.
Common law clarification
Despite the existence of the LEPRA, a common law case continues to be cited with a view to clarifying the laws relating to seizure.
This is the 1970 UK case Ghani v Jones, where Lord Denning found that police can seize an item from a non-suspect when they have a reasonable suspicion a serious crime has been committed, and the item is the fruit of that crime, was used in it or is evidence of it.
In the 2017 NSW Local Court case of Police v Ronald Sines; Police v Andrew Love, Magistrate Vivian Swain applied Ghani, when she found that police had the power to seize the phone of Mr Love, who’d been filming officers arresting Mr Sines, as it contained evidence of an assault of an officer.
But, can police search through your phone?
All of that said, the question of whether a police officer can trawl through your phone with impunity after they’ve taken possession of it remains a murky area.
Section 30 of the LEPRA sets out that an officer can do a number of things when searching a person, including “examine anything in the possession of the person”. This means an officer can certainly take a look through your wallet or your bag, or indeed your phone, if the outlined reasonable suspicion is established.
And there is certainly nothing in the legislation that expressly prohibits an officer from looking through any part of your phone that is not related to the ground upon which their reasonable suspicion was based.
However, given the emphasis in the LEPRA – and in the second reading speech leading up to its enactment – on the requirement of reasonable suspicion and the link between that suspicion and the subsequent search and seizure, there remains an unsettled question as to whether a police officer is legally entitled to access information that is not related in any way to their suspicion – such as go through intimate images that are clearly unrelated to a search for drugs.
Clarification by the legislature or courts on the legal parameters of a search in that context would be desirable.
Do I have to give an officer my passcode?
Under federal law, forcing an individual to disclose his or her password, personal identification number or private encryption keys to enable access to a smartphone or a computer requires a warrant.
Section 3LA of the Crimes Act 1914 (Cth) sets out that a constable may apply to a magistrate for an order requiring an individual provide them with access to their electronic device if it’s suspected to hold evidence of a crime. And the owner doesn’t have to be a suspect of the wrongdoing.
A constable is defined in section 3 of the Crimes Act as a member of the Australian federal police or any state or territory police force.
And it’s a crime not to comply with an assistance order. A person who doesn’t is liable to 5 years imprisonment and/or a fine of up to $63,000. However, if the assistance order is in relation to a serious crime or serious terrorism offence, 10 years behind bars applies, as well as a $126,000 fine.
So, what’s the bottom line?
If a police officer does stop and search you, it’s best to follow their directions, as resisting can lead to a charge of hindering police, or resisting arrest if they make the decision to arrest you. Always make sure your phone is secured with a password, as unless an officer is exercising a commonwealth power or gets an order from a court, you’re not required to provide them with access to it.
And lastly, remember that whatever you do, don’t ever consent to a search, as if a good lawyer is able to prove the search was carried out illegally, any evidence found against you has the potential to be thrown out of court, in accordance with section 138 of the Evidence Act 1995 (NSW).
If you do provide your informed consent, the search will be considered legal even if police did not have a suspicion on reasonable grounds to conduct it.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.