It has become increasingly common for police, in the course of their investigations, to request individuals provide access to their mobile phones. They may ask a suspect to hand over his or her phone and provide the password. They may even ask a bystander, who could have evidence contained on their phone, to grant access.
However, while there is no question that the police have broad powers to search and seize property in NSW, particularly on 'reasonable suspicion' of commission of an offence or after a valid arrest, these powers are not unfettered.
Police do not have the express power to search the contents of a mobile phone, nor any express power to require a suspect to provide access to a phone that is password protected. As a result, the police must rely on more general powers to assert this right.
In the absence of any clear case law authority in NSW, it would appear that there is room for argument about the scope of police powers. Given the significant amount of highly sensitive personal information likely to be contained on a person's mobile phone it is, arguably, more akin to the search of a person's premises rather than the search of pockets or a handbag, generally accepted as permitted as part of a personal search. As a result, different principles should apply, as they do to the search of a person's home.
The NSW Police rely on three main provisions when conducting personal searches.
Pre-arrest search without a warrant
First is the power to search without a warrant in Law Enforcement Powers and Responsibilities Act 2002 (NSW) (LEPRA) s 21. Under this provision, a police officer may search 'a person and anything in the possession of or under control of the person, if the police officer suspects on reasonable grounds' that (relevantly):
- the person is in possession of stolen property; or
- the person is in possession of anything used or intended to be used in the commission of a 'relevant offence' (ie an indictable offence or certain offences relating to dangerous articles, weapons and firearms); or
- the person is in possession of a prohibited plant or drug.
The police officer also has the power to 'seize and detain' such property (LEPRA s 21(2)). A police officer exercising his or her powers, must provide their name, evidence that he or she is a police officer and the reason for the exercise of the power (LEPRA s 202(1)). Failure to comply with a police direction is not an offence unless the officer has met these requirements (LEPRA s 204B).
Post-arrest search while in police custody
Second is the power to search on arrest in LEPRA s 27. This gives the police the power to search a person after a valid arrest [for the requirements of which see LEPRA s 99: 'if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything' (relevantly):
- 'that is a thing that will provide evidence of the commission of an offence'; or
- 'that was used, or is intended to be used, in or in connection with the commission of an offence'.
In addition, the police have the power to search a person who is in custody after their arrest and 'seize and detain' anything found in that search (LEPRA s 28A). A person taken into police custody must be cautioned and has the right to contact a lawyer (LEPRA ss 122 - 123).
It is worth noting that there is no specific reference to a power to search the contents of a mobile phone in either of these provisions, nor to require a person to provide a password. However, unlike s 27, s 21 does permit the police in those circumstances to search 'anything in the possession of or under the control' of the person, which could extend to a mobile phone. In addition, while conducting a lawful search, the police do have the power to 'examine anything in the possession of the person' (LEPRA s 30(c)). It could be argued that the powers do not extend beyond seizing and detaining the phone itself. In the absence of an express power to search the contents or to require the suspect to provide a password, arguably, if the police want to search the contents of the phone without consent they should apply for a warrant under LEPRA Part 5.
Searches carried out with consent
In practice, the police regularly request individuals suspected of having committed an offence to provide access to the contents of their mobile phone. Where this is done with consent of the owner, then the police officer does have the power to carry out the search and 'the purpose of the search is the purpose for which the police officer obtained consent to search' (LEPRA ss 34A and 29(2)(a)), ie it is limited to that purpose and does not extend to a 'fishing expedition'. To obtain consent, the police officer must provide the person with evidence that he or she is a police officer and specify the purpose of the search in advance.
Where consent is refused, however, police may nevertheless proceed upon the basis that they have the power to require access to the contents, including to any relevant password. However, as explained above, this depends on a broad reading of the power to search 'anything in the possession or under control of the person' (LEPRA s 21(1)) and the ancillary power to 'examine anything in the possession of the person' under LEPRA s 30(c). Even a broad reading of these powers would, arguably, not support anything beyond a search of the contents of the data stored on the phone itself, as opposed to downloading data to the phone from an Internet site such as Facebook or Instagram.
Failure to comply with a lawful police direction 'without reasonable excuse' may be an offence and subject to a penalty notice (LEPRA s 199, reg 53). Alternatively, if a person does not comply with a request to provide a password, the police could potentially argue that the person is hindering the police in the execution of their duty (Crimes Act 1900 (NSW) s 546C).
The principle of legality
However, such a broad reading of the powers in LEPRA ss 21(1) and 30(c), is, arguably, contrary to the principle of legality, which requires criminal statutes to be interpreted strictly in favour of the accused. It is presumed by the courts that Parliament did not to intend to abrogate our fundamental rights and freedoms unless expressly stated in the statute. The right to privacy, freedom from arbitrary search and seizure, and the right to silence and privilege against self-incrimination, are all such fundamental freedoms recognised at common law. In Coco v The Queen, the High Court said:
'The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights . .' (per Mason CJ, Brennan, Gaudron and McHugh JJ at ).
Unfortunately, the Court of Criminal Appeal in NSW is yet to provide a definitive answer to the question of whether, or in what circumstances, the police have the power to search the contents of a mobile phone without a warrant or to require a person to provide his or her password. However, a recent Queensland Supreme Court decision, on similar legislative provisions to those outlined above, suggests that privacy rights may be considered by the courts in interpretation of the NSW provisions.
In R v N  QSC 91 the Queensland police attended a city hotel in response to a noise complaint and an assertion that drugs were being used by the occupants. On arrival, the police proceeded to conduct three separate searches. N was detained and strip searched for drugs, of which none were found. Then her handbag was searched, revealing $305 and an iPhone. Suspecting that the $305 related to drug supply, the police then searched the phone and found some incriminating text messages indicating drug related activities. In coming to his decision that the third search was not authorised by the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) s 29 (cast in similar terms to LEPRA s 21), Carmody CJ held that the location of $305 was not a sufficient basis to form a 'reasonable suspicion' of drug related activities, as required to enliven the power to search. As a result, it was held that the search of the phone was unlawful and the evidence obtained should be excluded under the discretion to exclude illegally or improperly obtained evidence. In reaching this decision, Carmody CJ specifically discussed the importance of the right to privacy, stating that (at ):
Privacy rights are important too. They must not be disregarded without good cause or for compelling reason. We must consider the two rival objects of desire - public and community safety, on the one hand, and unconstrained State coercive law enforcement, on the other.
In addition, Carmody CJ reviewed the United States case of Riley v California, 573 US 373 (2014), which held that the search and seizure of the contents of a mobile phone without a warrant following an arrest was unconstitutional (unlike the Australian Constitution, which is silent on this issue, the 4th amendment to the US Constitution prohibits 'unreasonable searches and seizures'). He specifically noted, with approval, that in reaching its decision in that case (at ):
. the Court accepted that because of their large storage capacity and broader privacy implications, iPhones differ in both a quantitative and qualitative sense from other documentary records.
Noting that in Riley v California, 'the general incident to arrest power was considered too broad and invasive to justify searching a mobile phone' (at ), he found that, similarly in Queensland, the police would have to justify such a search by reference to some concern regarding imminent destruction of evidence (under PPRA s 160), otherwise they should obtain a search warrant.
In an earlier Queensland case of R v Peirson  QSC 134, the Queensland Supreme Court had accepted that the search of an accused who was seen getting out of a taxi holding alcohol (an offence) and indicating signs of being under the influence of another drug, was lawful under PPRA ss 29 and 30 (which are similar but not identical to LEPRA s 21). This search extended to reviewing the contents of his mobile phone and the evidence obtained was, therefore, admissible.
So, ultimately, an important consideration if faced with a request from a police officer to search your mobile phone, is that they do not have a general power to do so, absent a valid power to search or following a valid arrest (as outlined above). While you may consent to such a search, consent must be expressly obtained by the police officer prior to the search and then the power to search is limited to 'the purpose for which the police officer obtained consent', which must be made clear to you prior to consent being given. If you do not consent and the police go ahead and search the contents of your phone regardless, then, if the search is later found to be unlawful, any evidence the police obtain as a result of the search may be excluded from any subsequent trial.
Sources and further references:
Andrew Hemming, Francine Feld and Thalia Anthony, Criminal Procedure in Australia (LexisNexis, 2nd ed, 2019).
Matthew Raj and Russ Marshall, 'Examining the Legitimacy of Police Powers to Search Portable Electronic Devices in Queensland' 38(1) University of Queensland Law Journal 99.
Jane Sanders, 'Police powers to search and seize mobile phones' The Shopfront Youth Legal Centre (August 2017).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.