Can police search your phone?
All of our personal information such as emails, personal photographs, places we have been, friends we associate with, financial information and much more are all contained in one small hand held device. Nothing contains as much intensely personal information than our Smartphones. From our browsing histories to our dating preferences, our phones often contain some of our deepest darkest secrets.
With all this wealth of easily accessible personal information it is no wonder that 69% of us secure our phones and other devices with a password or pass code, according to a 2014 study by McAfee.
With all this personal information available at just a few swipes, is this data safe from the prying eyes of the police? Imagine you are stopped on the street and asked to empty your pockets one of which contains your cell phone. Can police search your phone? Can they demand you provide your pass code or fingerprint to access the information in your phone?
Unfortunately there are many instances where the police do try to seize people’s phones during arrests and demand the owner enable access to the data in their phones.
In 2016 Paul Gibbons, a former federal Australian police officer and former NSW police officer alleges that police seized his phone and demanded he provide access by unlocking it with his fingerprint during what he states was a violent arrest while he was on vacation in the Gold Coast. Gibbons wrote a complaint to the CCC stating the arresting officers deleted not only the footage he was taking of the incident, but also all of the other videos he had on the device during the arrest including those of his honeymoon. He was subsequently released without charge.
As a general rule of thumb police officers can search your mobile phone as long as they have your consent. One thing to note with this though is that voluntarily permitting police to look at one piece of information (i.e. your contact list) also, according to R v Varga  QDC 82, gives them authority to look at all the other information in your phone as well.
However without voluntary consent, the rules around whether police can search your phone gets a bit nebulous; especially if it is during a pre-arrest. For example in Queensland, if it is believed that your phone was used in the commission of a drug offence (i.e. texting someone to bring you a stash) possessing the phone becomes an offence.
Under Sect 10 of the DRUGS MISUSE ACT 1986 states: A person who has in his or her possession anything –
(a) for use in connection with the commission of a crime defined in this part; or
(b) that the person has used in connection with such a purpose;
The maximum penalty for this charge is 15 years imprisonment.
Police powers differ when it comes to post-arrests however. In this case, if a person has not consented voluntarily to having his or her phone searched then a search warrant is required to gain access to his or her device. The search warrant must include special provisions on the face of the warrant that enables the executing officer to request the information needed to access the device (i.e. password) and all of its stored data.
Also under the CRIMES ACT 1914 – SECT 3E the search warrant must state “the offence to which the warrant relates” and “the kinds of evidential material that are to be searched for under the warrant.”
Other items can be seized including a cell phone if during the execution of the search warrant the executing officer reasonably believes that the item is “evidential material in relation to an offence to which the warrant relates.”
The law also allows access to phone data through emergency search powers. In this case if the police reasonably believe that the phone contains evidence of an indictable offense and they believe this evidence may be at risk of being destroyed they can seize the device.
If you refuse to provide access to your device you could under the LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 be charged with obstructing or contravening directions given by police.
Critics argue that with so much confusion around whether and under what circumstances a phone can be searched, proper procedures need to be put in place. If you believe your phone has been searched without proper justification a criminal lawyer can help.