Do NSW police have power to search the contents of a mobile phone without a search warrant?

• Published date: 23 August 2021
• Subject Matter: Media, Telecoms, IT, Entertainment, Criminal Law, Mobile & Cable Communications, Crime
• Law Firm: Lamont Law

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...