Mobile phones now contain some of the most personal information about our lives, including messages, photos, email, banking apps, browsing history and location data.
There are many legal guidelines governing police powers to seize and search phones in certain situations.
Do NSW police need a warrant to search your phone?
In many situations, police will require a warrant before conducting an extensive search of a mobile phone. However, NSW law also gives police certain powers to stop, search, and seize items, including phones, without a warrant in specific circumstances.
Police may stop and search a person if they reasonably suspect the person possesses:
- stolen property,
- prohibited drugs,
- weapons,
- evidence connected to an offence.
If police reasonably suspect a phone contains evidence of an offence, they may seize the device.
Can police search your phone after an arrest?
Yes, in some circumstances. Police may search a person after arrest and seize an item believed to contain evidence of an offence, have been used in connection with an offence, pose a safety risk and assist escape from custody.
This means a mobile phone may lawfully be taken by police following an arrest of an officer who reasonably believes it is connected to criminal activity.
Can NSW police force you to unlock your phone?
Generally, police cannot simply demand your password during a routine interaction. In NSW, police do not automatically have the power to compel a person to provide a phone passcode unless they have specific legal authority.
If the evidence is illegally obtained, it could become inadmissible.
Are text messages admissible in court?
Evidence is considered relevant if it could reasonably help prove or disprove something important in the case. Courts look at whether there is a logical connection between the text message and the facts in dispute.
Sometimes, evidence may be temporarily accepted until its authenticity is proven, such as confirming who sent a message or whether a screenshot is genuine. Once evidence is found to be relevant and properly proven, it can be used in court unless it is excluded by other rules.
Relevant evidence can be excluded if it is unfair or unreliable. Examples of where evidence can be excluded include:
- If it is unfairly prejudicial, misleading, confusing, or wastes time.
- If it’s unfair prejudice outweighs its value
- If it was obtained illegally or improperly, unless it is still in the public interest to admit it.
Probative value is how strongly evidence helps prove something in the case.
Text messages can have high probative value if they show admissions, intent, planning or awareness of wrongdoing. However, their value may be lower if they lack context, are incomplete, or are susceptible to misinterpretation.
Digital Access Orders
A Digital Access Order requires a person to provide police with access to specified electronic devices and the information stored on them. This means police can legally compel the person to provide any passwords, passcodes, fingerprints, facial recognition, or multi-factor authentication needed to unlock the device and access its contents.
The Commonwealth law outlines that “a constable may apply to a magistrate for an order to provide any information or assistance that is reasonable and necessary”, allowing access to the data stored on “a computer or data storage device.
At the NSW state level, the Police can issue a Digital Evidence Access Order, which is regularly issued alongside a general physical search warrant.
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