Police Powers | Mobile Phones
Civil Law Factsheets
There are a few circumstances in which a NSW police officer may stop and search a person without a warrant, and then seize any items including a mobile phone.
Stop and Search Power – Section 21
Section 21 of the Law Enforcement (Powers and Responsibilities) Act 2005 (NSW) (‘LEPRA‘) gives police the power to stop and search a person. However, that is only if the officer has a suspicious, based on reasonable grounds, that they’re in the possession of:
- a stolen item,
- illicit substances,
- or they have a dangerous weapon or anything else used or intended to be used in an offence.
This section also allows an officer to seize and detain any item in that persons possession if the officer has a reasonable suspicion that:
- it’s stolen,
- or it has or will be used in committing an offence
- or contains evidence of an offence.
Stop and Search (Vehicle) – Section 36
Under this section, police can stop and search a vehicle in similar circumstances to what’s just been set out above. As well they can seize and detain items for the same reasons.
Searching after an arrest – Section 27
Section 27 allows a police officer to search a person on or after their arrest. This is if the officer has the reasonable suspicion that they are carrying something that could be dangerous, allow them to escape police custody, or was used in an offence or could be or contain evidence.
Searching someone in custody – Section 28A
Section 28A allows police to search someone in lawful custody after their arrest. They can then seize anything on their person. However, this has to be done:
- at a police station,
- a place of detention,
- or immediately before or during transportation to one of these places.
Can an officer look through my phone if they seize it?
If the phone is locked with a passcode, then police won’t be able to look through it unless they have a warrant (see the section below!).
This is a tricky area as smartphones. While they’ve been around for ages, they are still pretty new in terms of legislating around them. Smartphones hold an almost limitless amount of information and are substantially different from a search of your backpack or wallet.
Section 30 of LEPRA allows an officer to examine anything in the possession of someone they are allowed to search. For example, they can look through your bag, wallet or your phone. There isn’t anything explicit in the legislation which says police can not look through your phone at things not related to the grounds for the search.
However, there is this presumption that there needs to be some sort of link between what they are legally entitled to access in your phone and the grounds for the original search. Ultimately this really needs clarification by the NSW Government, Police or the Courts.
Can police demand you unlock your phone?
Police need a warrant in order to force you to disclose your password, PIN or encryption keys to enable a smartphone.
It’s unclear whether an officer holding your phone up to your face to unlock it biometrically would satisfy this requirement.
Section 3LA of the Crimes Act 1914 (Cth) sets out that an officer needs to apply to a magistrate for a order requiring an individual provide them with access to their electronic device if there is suspicion of it holding the evidence of a crime.
If an officer has this order, then you could suffer severely penalties by not complying with it.
Getting searched by NSW Police
If NSW Police stop and search you, follow their directions. Otherwise you may face charges of assault police, resist arrest or hindering police.
If you are told you are being searched, the best thing to say is “I do not consent, but I will comply”.
In the event of an unlawful search, O’Brien Criminal & Civil Solicitors can represent you in any criminal charges, to have the charges dropped. We can then potentially represent you in civil proceedings to obtain compensation for the unlawful stop and search.