These days almost everyone carries a mobile phone on them wherever they go. We use our phones to communicate, to work, to store our contacts and correspondence. Our phones can be used to make payments and do banking. We can keep our driver’s licence in our apple wallet. Our internet browser stores our search history and website passwords. We can even use apps on our phones to open our car, control smart devices around the home and so much more.

Given the sheer volume of personal information stored on our phones, we’re often asked by clients what are a person’s rights and obligations if NSW police want to search their phone.

Can NSW police ask you to open your mobile phone and search it?

Unless you provide consent, police may only search through the contents of your phone if they have legally confiscated it first.  Police can only confiscate a mobile phone if the police have:

1. a warrant; or
2. reasonable grounds to suspect the phone is stolen or contains evidence of a serious offence*

* A serious offence is one that carries more than 5 years imprisonment.

If you are stopped and searched by police, the officer can examine anything in your possession, but police cannot demand that you unlock your phone. It’s unclear whether this power extends to examining your phone just because it’s in your possession, but the general view is it probably does.

So what does that mean? If you don’t give the passcode they will never be able to look in your phone? No. And that’s because of digital access orders.

What are digital access orders?

In 2023, new laws were introduced that allowed police to apply to a court for a digital access order, which is like a warrant. A digital access order is an order that requires a person to provide police with a password, passcode, or other information to gain access to their digital devices such as phones, computers, and tablets.

A digital access order is one that is then put in writing, like a search warrant.

If the police have obtained a digital access order against you, you are only required to comply with it if the police can show you a copy of it.

The penalty for non-compliance with a digital access order or providing false information in response to a digital access order is a fine of up to $11,000 or imprisonment of up to 5 years. So it’s a serious offence not to comply.

There is nothing stopping you seeking advice from a lawyer if you are issued with a digital access order. And it is a good idea for you to do so. 

If your phone gets confiscated, what can you do?

Having your phone taken can have real implications for people. Not only with work, but also accessing banking, communicating with family and friends, etc.

If police confiscate your phone, they can hold on to your phone until they decide that:

(a)         the property is no longer needed as evidence

(b)         it is lawful for you to have the property in your possession.

You can request the return of your phone by contacting the officer in charge of the matter. Police must notify you when your property is ready to be collected, and you have 28 days to claim your property.

The reality is, if there is a brief of evidence being complied, or the matter is ongoing and police have sent your phone off for analysis, the likelihood of getting your phone back anytime soon is low. It can be requested, but police will generally hold onto it in the event there might be relevant evidence on the phone, or the evidence may need to be tendered in court.

What about resetting a phone remotely?

When police confiscate a mobile phone, they use the internet or set the phone, usually disconnect it from the internet or set it to aeroplane mode. If the phone is remotely reset, it may not update the device that has been confiscated and disconnected from the internet.

However, you should not reset a phone in police custody or do anything that might alter its contents. This might constitute tampering with evidence, a very serious offence punishable by 10 years imprisonment.

Police use special software called Cellebrite to access, download, and analyse mobile phone content. Depending on the nature of the encryption, Cellebrite can access some encrypted and deleted data from the phone.

In short, if police have asked to search your phone or issued you with a Digital Access Order, it’s a good idea to consult with a lawyer. For more information and advice, contact Streeton Lawyers today.

*Photo by Daria Nepriakhina on Unsplash