Consider the following scenarios:
A police officer stops you on the street and asks you to empty your pockets.
A police officer stops you in your car and asks to search you and the vehicle.
Regardless of nearly all factors, one of the items recovered will inevitably be a mobile phone. But in what circumstances can police search your phone? Must they obtain a search warrant? And what will happen if you refuse to provide your passcode or fingerprint required to access your phone?
A 2014 study found that of 1,519 people surveyed, 69% secured their smartphone with a password or passcode. Perhaps one of the reasons is because in just four swipes on the interface of your phone, another person can access a wealth of your personal information.
Phones, privacy and the law
Overseas, legal precedent has formed to suggest that the warrantless search of a mobile phone by police is too invasive. In 2014, a US Supreme Court decision confirmed the search and seizure of digital contents of a phone during an arrest is unconstitutional. Chief Justice John Roberts described mobile phones as:
… not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life”.
The court seemed to recognise that, in many ways, phones are more like a home than a handbag.
And, in July this year, a US Federal Court judge excluded evidence obtained without a warrant using a surveillance device that tricks suspects’ phones into revealing their location.
In Canada, a narrowly divided Supreme Court ruled in 2014 that warrantless police searches of a phone following an arrest are permitted, so long as the search is directly related to the circumstances of the arrest.
The court ruled that detailed records must be kept of the search. Justice Thomas Cromwell said:
Unwarranted searches undermine the public’s confidence that personal communications, ideas and beliefs will be protected on their digital devices. This is particularly important given the increasing use and ubiquity of such technology. It is difficult to conceive of a sphere of privacy more intensely personal – or indeed more pervasive – than that found in an individual’s personal digital device or computer.
The position in Australia is nebulous. Last month, police officers on the Gold Coast arrested Paul Gibbons, a former Australian Federal Police officer. It was alleged the officers required Gibbons to unlock his phone using his fingerprint. It was also suggested that, once seized by police, material was deleted from Gibbons’ phone.
What happens in Queensland?
Generally, police officers can search your mobile phone with your consent. A recent Queensland decision made it clear that voluntarily permitting a police officer to look at one piece of information (like your phone contacts list) acts as consent to look at all the information stored on the phone.
However, information stored on the phone does not include information accessed via the internet (like your Facebook messages). Without a warrant or a person’s consent, police must rely on existing powers to search (either before or after arrest). For example, police must reasonably suspect you possess an unlawful dangerous drug.
It has been recognised, in line with the aforementioned 2014 US Supreme Court decision, that while a warrantless pre-arrest search of a phone may be legally justified (despite the invasion of privacy), a post-arrest search may not be.
Additionally, police can rely on emergency search powers to prevent the loss of evidence – for example, when they reasonably suspect that evidence of the commission of an indictable offence may be destroyed.
Police powers to search also exist in relation to your vehicle and anything in it, which includes your phone.
In Queensland, it is an offence to possess something that has been used or is used in connection with the commission of a drug offence. So, for example, if you text another person to arrange the supply of drugs, merely possessing the phone becomes an offence.
Somewhat controversially, if you refuse to provide the police your passcode or fingerprint, you may be charged with an offence of obstructing or contravening a direction given by a police officer. This is because, in circumstances where an officer has the power to seize a phone, they also have the power to examine it.
Without the voluntary consent of an owner, a search warrant must include authorisation (under special provisions relating to warrants) to gain access to a password-protected device. In addition to obtaining a valid warrant, police must have this special provision on the face of the warrant so as to require you to provide the information necessary to access all of your electronically stored information.
The need for greater transparency
Almost invariably, your mobile phone carries a great deal of information.
Your work email, personal photographs, places you’ve been, friends with whom you associate, dating preferences, levels of fitness, internet browsing history, bank account details and much more are all carried in your hand. With enough work, even the stuff you’ve deleted can end up being retrieved.
What’s clear is that police powers to search phones in Australia need to be examined. Clearer guidelines ought to be issued to police.
One such desirable improvement is the procedure for obtaining consent to search data stored on a phone. Another would be ensuring that detailed records on data examined and the reason for accessing that data be kept.
The author would like to thank Russell Marshall for his invaluable contribution to this article.