Is It Legal For Police To Search Your Phone?

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Consider the following scenarios: A police officer stops you on the street and asks you to empty your pockets. A police officer stops you in your car and asks to search you and the vehicle. Regardless of nearly all factors, one of the items recovered will inevitably be a mobile phone. But in what circumstances can police search your phone? Must they obtain a search warrant? And what will happen if you refuse to provide your passcode or fingerprint required to access your phone? Let's find out.

Matthew Raj is an Assistant Professor at the Faculty of Law at Bond University

A 2014 study found that of 1,519 people surveyed, 69% secured their smartphone with a password or passcode. Perhaps one of the reasons is because in just four swipes on the interface of your phone, another person can access a wealth of your personal information.

Phones, privacy and the law

Overseas, legal precedent has formed to suggest that the warrantless search of a mobile phone by police is too invasive. In 2014, a US Supreme Court decision confirmed the search and seizure of digital contents of a phone during an arrest is unconstitutional. Chief Justice John Roberts described mobile phones as:

… not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life”.

The court seemed to recognise that, in many ways, phones are more like a home than a handbag.

And, in July this year, a US Federal Court judge excluded evidence obtained without a warrant using a surveillance device that tricks suspects’ phones into revealing their location.

In Canada, a narrowly divided Supreme Court ruled in 2014 that warrantless police searches of a phone following an arrest are permitted, so long as the search is directly related to the circumstances of the arrest.

The court ruled that detailed records must be kept of the search. Justice Thomas Cromwell said:

Unwarranted searches undermine the public’s confidence that personal communications, ideas and beliefs will be protected on their digital devices. This is particularly important given the increasing use and ubiquity of such technology. It is difficult to conceive of a sphere of privacy more intensely personal – or indeed more pervasive – than that found in an individual’s personal digital device or computer.

The position in Australia is nebulous. Last year, police officers on the Gold Coast arrested Paul Gibbons, a former Australian Federal Police officer. It was alleged the officers required Gibbons to unlock his phone using his fingerprint. It was also suggested that, once seized by police, material was deleted from Gibbons’ phone.

What happens in Queensland?

Generally, police officers can search your mobile phone with your consent. A recent Queensland decision made it clear that voluntarily permitting a police officer to look at one piece of information (like your phone contacts list) acts as consent to look at all the information stored on the phone.

However, information stored on the phone does not include information accessed via the internet (like your Facebook messages). Without a warrant or a person’s consent, police must rely on existing powers to search (either before or after arrest). For example, police must reasonably suspect you possess an unlawful dangerous drug.

It has been recognised, in line with the aforementioned 2014 US Supreme Court decision, that while a warrantless pre-arrest search of a phone may be legally justified (despite the invasion of privacy), a post-arrest search may not be.

Additionally, police can rely on emergency search powers to prevent the loss of evidence – for example, when they reasonably suspect that evidence of the commission of an indictable offence may be destroyed.

Police powers to search also exist in relation to your vehicle and anything in it, which includes your phone.

In Queensland, it is an offence to possess something that has been used or is used in connection with the commission of a drug offence. So, for example, if you text another person to arrange the supply of drugs, merely possessing the phone becomes an offence.

Somewhat controversially, if you refuse to provide the police your passcode or fingerprint, you may be charged with an offence of obstructing or contravening a direction given by a police officer. This is because, in circumstances where an officer has the power to seize a phone, they also have the power to examine it.

Without the voluntary consent of an owner, a search warrant must include authorisation (under special provisions relating to warrants) to gain access to a password-protected device. In addition to obtaining a valid warrant, police must have this special provision on the face of the warrant so as to require you to provide the information necessary to access all of your electronically stored information.

The need for greater transparency

Almost invariably, your mobile phone carries a great deal of information.

Your work email, personal photographs, places you’ve been, friends with whom you associate, dating preferences, levels of fitness, internet browsing history, bank account details and much more are all carried in your hand. With enough work, even the stuff you’ve deleted can end up being retrieved.

What’s clear is that police powers to search phones in Australia need to be examined. Clearer guidelines ought to be issued to police.

One such desirable improvement is the procedure for obtaining consent to search data stored on a phone. Another would be ensuring that detailed records on data examined and the reason for accessing that data be kept.


The author would like to thank Russell Marshall for his invaluable contribution to this article.

This article was originally published on The Conversation.


Comments

    "Somewhat controversially, if you refuse to provide the police your passcode or fingerprint, you may be charged with an offence of obstructing or contravening a direction given by a police officer. This is because, in circumstances where an officer has the power to seize a phone, they also have the power to examine it."

    Incorrect - No Court in the world can force you to provide your password.

        You do realize florida is located in the US, Not australia. US court decisions have no basis here.

          You do realise that courts look to similar jurisdictions and similar cases to guide their consideration of nebulous areas right?

          While an Australian court wouldn't be bound by the Florida decision, it wouldn't surprise me if that case was cited in an effort to sway a decision one way or another.

          He was responding to the statement "No Court in the world", and googled that line. His response wasn't Australia-centric.

        If you read that article you linked, you will find that they had a search warrant. As was said previously in this article (this page) US Supreme Court ruled that they could search your phone and get your password if they had a search warrant.

      They didn't say the court was going to force anyone to do anything, just that you would be charged with obstructing or contravening a direction given by a police officer.

        Be interested to know how that might interact with someone's right to not incriminate themself.

        I don't believe I'm guilty of anything, but a search of my phone might reveal that I am unknowingly.

      In Western Australia you must comply with a data access order if you are served, including passwords etc...

      (2) A person who is served with a data access order and who, without reasonable excuse (the onus of proving which is on the person), does not obey it commits a crime.

      Penalty: imprisonment for 5 years.

      Summary conviction penalty: a fine of $24 000 and imprisonment for 2 years.

      http://www.austlii.edu.au/au/legis/wa/consol_act/cia2006243/s61.html

    I find this a really interesting point of contention. We talk of a phone. In reality of course our hand held device has not been a 'phone' for at least a decade. Its a computer. A very sophisticated computer, way better and more technically proficient than any computer of even a decade ago.

    I am not aware of a jurisdiction in the western world that permits the seizure and search of a persons computer without a warrant. Not to put too fine a point on it, it is not a stretch to imagine a scenario where evidence gleaned from a phone was summarily dismissed for want of a warrant to seize a computer.

    Nor indeed is it a stretch to imagine a scenario where law enforcement is sued for accessing a citizens computer without a warrant.

    Last edited 11/07/17 12:42 am

    In QLD a warrant has special provisions to allow Police to demand passwords, biometrics etc if the warrant is authorised by a magistrate. Failing to comply is a contravention of a magistrates direction (not obstruct police). Police in QLD cannot force you to provide your pin/bio without a warrant and there is no offence not to provide it. They can search an unlocked phone without consent based on reasonable suspicion of an offence. As well cloud storage, social media accounts if accessible via a phone is deemed to be material in your possession and is treated just as though it's located on your phone I.e it's. It considered data held in another country and as such can be accessed and used as evidence. Perhaps the author needs to read some case law and recently amended legislation.

    I personally think that It should not be allowed for police search to our phone. But in some cases where they have already catch us in doing something wrong then they might have right for it.

      Why do they need to Search a phone when we all know they can quite easily get a history of every text sent and location of texts and calls eith history by simply asking a telco. I was raided 6 months ago and the first thing they did was take my phone, then they made the biggest mistake of their lives and when i asked to call my solicitor they dialed it on my phone and handed it to me. While on speaker phone i factory reset while 5 cops stood around listening to my phone call go dead As it formatted. No one said i couldnt format it and no charge was laid at all. If you want to defeat the police you simply have to use your brain. Theres also a phone lock that a specific code entered to unlock the phone will erase its contents, its a must in the police state of qld.

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