Under the ‘Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), a police officer may, without a warrant, stop, search and detain a person, and anything in the possession or under the control of the person, if the police officer suspects—on reasonable grounds—that the object is in relation to a crime. Although there is a law that states that you may be searched or detained depending on the situation, there are still instances wherein a police officer may be overstepping boundaries. You should get in touch with a lawyer in Sydney or a law firm near your area so that you can take the necessary steps for legal action.
With this information at hand, is it reasonable to assume that a police officer can ask you to unlock your phone? Further, begin to trawl through its databanks, through your personal messages, even your videos. If you’ve given them consent to unlock your phone, either “express” or “implied”, are they entitled to delete information? Are they able to do this if you haven’t even been charged in connection with a crime?
All the powers that police officers are able to exercise are held within the ‘Law Enforcement (Powers and Responsibilities Act 2002 (LEPRA). If you feel that any of your rights have been infringed by a police officer, please get in contact with us today or submit a complaint form to the Commissioner of Police or the Law Enforcement Conduct Commission (LECC).
Searches By Consent
Under s34a of the ‘Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), a police officer may search a person with the person’s consent but only if the police officer has sought the person’s consent before carrying out the search.
Consent can be provided in many forms; it can be either express or implied. When a police officer asks whether they can search your phone and you provide confirmation by stating “yes”, you have provided “express consent” to a police officer to search your phones. “Implied consent” can be confirmed when a police motions for you to unlock your device and you enter in your screen lock details, which give them access to your phone. Both implied and express consent grant police the ability to search through your phone. However, consent can always be withdrawn. If at any point, you don’t wish the search to continue, make it verbally clear to the investigating police officer that you ‘do not consent’ to the search.
However, under the current NSW Legislation, it is not clear whether searches of mobile phones are an exercise of the powers granted by s34a of the LEPRA Act. It is currently a legally murky area of the law. If you feel like your rights have been violated but you are unsure what you can do about the situation, it is advisable that you consult with a lawyer in Sydney.
As A Bystander, Do I Have Any Rights To Prevent Seizure Of My Mobile Phone From Police?
Imagine that you are at the scene of the crime. You have decided to pull out your mobile phone and begin recording the scene when police arrive. You have recorded an ample amount of footage or taken photos that—on reasonable grounds—may provide evidence of the commission of a relevant offence. Obviously, you would be inclined to help assist police officers when possible to investigate crimes, especially when you are not involved. However, would you allow police officers to seize your phone or provide them with your password to unlock the device at their leisure? Or what if the evidence that you have is in relation to misconduct by police officers attending the scene of a crime, would you still be so inclined?
It is a common practice for members of the NSW Police Force to seize mobile phones from bystanders who are recording incidents in which they are not criminally involved.
The phones that are seized can be retained for long periods of time for the purpose of preserving and downloading the footage for use as evidence in a criminal matter.
Not only are there issues with the legality of these seizures, but they also constitute major inconveniences for the owners of these devices. Not to mention the potential interference with the phone owner’s privacy.
Currently, the leading case law has illustrated that if a police officer has reasonable grounds to believe that a serious offence has been committed and that the mobile phone holds material evidence that could prove that the serious offence alleged, then the phone must be surrendered. A refusal to provide the phone to the police officer may lead to police to believe that this refusal is unreasonable. Furthermore, this can be illustrated when the amount of time that the phone would be kept from the owner is not longer than reasonably necessary. Although the laws are still dim on this issue, getting a lawyer in Sydney can help you understand your rights better.
However, there are many more appropriate ways of obtaining such evidence from 3rd parties, or bystanders. This can be highlighted by a “Subpoena of production” which can be utilised by police to have you—a 3rd party—produce your mobile phone or it’s data.
Do The Ordinary Search And Seizure Powers Of Police Officers In NSW Give Them The Authority To Search And Subsequently Download Data On Mobile Phones?
By trawling through and downloading data from a mobile phone, an individual’s privacy may be infringed upon. Mobile phones now contain the type of personal information that would be, traditionally, be kept in a person’s home or office. This data includes personal information, such as bank information, private correspondence and other matters that many people would want to keep from the public eye. Such an intrusive search should not be performed without a warrant except unless in exigent circumstances. Once again, this is an extremely murky area of the law as there is no express statutory provision that compels a person to unlock a phone or to provide a password. In comparison to other objects, such as a wallet that can be found on a person during an arrest, police officers have the power to check it’s contents during a search, or the ability to compel a person to open their mouth and or move/shake their hair in certain circumstances.
What To Do If Police Are Attempting To Search Your Phone?
Firstly, ensure that you have a passcode on the device. This will prevent police from being able to access your information without your consent. An unlocked phone that is handed to the police can be seen as implied consent by the investigating officer or the custody officer to search its contents for information.
Secondly, inform the police officer that you don’t consent to the search of the contents of the mobile device. Consent can come in many forms. You may consent to the search of an individual message or a video that you have recorded. Make sure that you voice your consent regarding what you allow and don’t allow for them to search.
Thirdly, if police suspect that the phone in question is under suspicion to be stolen, you may choose to unlock the device to prove that you are the owner of the device. Try to shield the passcode or pattern that you enter into the device away from the investigating officer either by holding the back of the phone to the front of the officer, showing him that the device has unlocked and then lock the device. The purpose of exercise is to show that you are the owner of the device, it is not to give the investigating police officer implied consent to ascertain whether the information stored is yours as well.
Finally, if at all you feel that police have overstepped the boundaries and have disobeyed your consent, get in contact with us today to discuss your concerns. We are a trusted law firm in Sydney that you can rely on this kind of situation.
