When Can Police Take Your Phone?

https://www.criminaldefencelawyers.com.au/blog/when-can-police-take-your-phone/


NSW Police are often seizing mobile phones (and other items) from people suspected of crimes, including those that are bystanders, who record an incident which they are not even involved in.

The digital era, with the regular use of smart phones, which allow people to record footage and photos wherever and whenever, has resulted in more and more people’s phones being seized by police.

Smart phones and smart devices carry sensitive and significant personal information which people often rely on, on a daily basis. One can imagine the significant inconvenience (and privacy issues) resulting on an individual who’s phone is taken away by police, often for lengthy periods of time.

For those reasons, perhaps the law on police powers to search and seize smart devices need to be revised.

Police Powers to Take Possession of your Phone After a Lawful Search on You

The NSW Police are given certain powers under the Law in NSW to carry out searches on people, and includes detaining and seizing items found on those people searched. An illegal exercise of those powers can result in charges being dismissed in court.

However, while these powers are given to police under the Law enforcement (Powers And Responsibilities) Act 2002 (NSW), also known as “LEPRA”. Those powers do not allow police to detain and seize items (such as a mobile phone) from you, without lawfully searching you first.

In other words, if there is no lawful search done on you first, the police cannot take your mobile phone under those powers.

Important Things You Should Know About These Police Powers

The below are police powers under the law which allow a police officer to take and seize your mobile phone, only after a lawful search is done on you beforehand.

Section 21 LEPRA- Police Power to Seize Your Phone After a Personal Search Without an Arrest

This power allows police to take your phone, without you being arrested, but after a lawful search is done on you without a warrant.

Under section 21 of LEPRA (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/leara2002451/s21.html), a police officer can take “a thing” (which can include your mobile phone) from you if it was found on you after you were lawfully searched (there the phone was found from that search), and only where the police officer suspects on reasonable grounds that:

The police can lawfully search you without a warrant if the police officer first suspects, on reasonable grounds, that any of the following circumstances exist:

Section 27 LEPRA – Power to Seize Phone After Personal Search & After Being Arrested

This power allows police to take your phone, during or after you’re arrest, and after a lawful search is done on you (with or without a warrant).

Section 27 of LEPRA (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/leara2002451/s27.html) allows police to take your mobile phone from you in those circumstances only after you’re lawfully searched, where your phone is found from that search, and where the phone:

The police can only search you, without a warrant and after (or during) your arrest, if the police officer suspects on reasonable grounds that he/she should search you to find out whether or not you’re carrying anything in relation to those 4 points.

Section 28A LEPRA-Power to Seize Phone After Personal Search & After Being Arrested

Section 28A of LEPRA (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/leara2002451/s28a.html) gives the police power to take “anything found” from searching you, including your phone, after you’ve been arrested, and during the time you are in lawful custody of police.

This is a very broad power because it says “anything”.

When Can Police Arrest You Without a Warrant?

Under section 99 LEPRA (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/leara2002451/s99.html), police can arrest you without a warrant in the following circumstances:

If the Court finds that the police officer didn’t have sufficient basis to form a reasonable suspicion to search you (or in case of an illegal arrest), then any evidence obtained from a search done illegally may end up being thrown out- resulting in dismissal of charges against you.

Police Powers to Take Possession of your Phone Without Conducting a Search on You

There is no legislation in NSW that actually allows police to take your phone from you, without you being lawfully searched first.

Can Police Seize a Bystander’s Mobile Phone?

There appears to be a common law power, established over the years, from past cases that gives police the power to seize items from people not suspected of committing an offence, and without the police having to first conduct a lawful search.

The Decision of Ghani v Jones [1970] 1 QB 693 appears to allow police to take items from you (including a phone), without a warrant, and without the need for police to arrest you in the following circumstances:

Examples of What Would be a “Quite Unreasonable” Refusal by a Bystander

A “quite unreasonable” refusal to hand over your property to police could include the following circumstances:

Police Powers to Seize Your Phone under a Warrant

Under section 49 of LEPRA, the police can seize and detain your phone or smart device, under a valid warrant. The police can do this, if the person executing the search warrant has reasonable grounds to believe the phone or smart device is connected with any offence.

When Must Police Return Seized Items?

Under section 218 LEPRA (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/leara2002451/s218.html), police must return the item back to you if he/she is satisfied:

Court Order to Have Item(s) Returned

Under section 219 LEPRA (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/leara2002451/s219.html), you can make an application in court for the court to make an order that the item seized by police be returned.


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