Smart phones form a large part of everyday life, holding endless information about where people have been, who they have spoken to, what they have written, and when they have done things. So, what happens when a police officer asks to see a person’s phone?
If the police have no reason to stop a person, they do not have to show police anything. If they ask someone whether they can look at their phone, this should be treated as request for a person’s consent. This consent is not required to be provided.
However, under sections 29 and 30 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA), a police officer may search a person or vehicle without a warrant if they reasonably suspect the existence of a prescribed circumstance. Critically, sections 30 and 31 of the PPRA describe these circumstances. They include situations where a police officer has a reasonable suspicion that a person is in possession of stolen property, has a weapon or drugs, is using a vehicle unlawfully, or has general evidence related to an offence.
The power to search the contents of a phone is restrained by both sections 29 and 30 of the PPRA, in that a thing in a person’s possession to be searched must be “relevant to the circumstances for which the person is detained”. Courts have acknowledged that a phone is a personal and private device that may contain sensitive and confidential information and therefore, police must have a legitimate and reasonable suspicion that it contains evidence of criminal activity. Consequently, if a person is caught with a small amount of drugs, then text messages might be relevant to indicate the origin of the drugs. If stopped for public nuisance, a person’s phone contents would probably not be relevant.
These circumstances are known as a warrantless pre-arrest search. If a person has an unlocked mobile phone, it is likely that the police may search its contents. Ultimately, there is no power for the police to order a person to unlock their phone and there is generally no obligation for a person to disclose a password or pin code. If the police ask questions such as “what is your password/pin code”, this should be treated as a request for consent which does not have to be provided.
However, the powers of police to conduct a search of an unlocked phone are more restricted once a person is under arrest (as opposed to a warrantless pre-arrest search).
Under section 443 of the PPRA, when a person is lawfully arrested and in custody, the powers of search are confined to ‘the person’ only. If a phone is found during the search of a person incidental to arrest, the powers conferred under section 443(2) of the PPRA limit the authority of police to seize the phone as evidence of the commission of an offence or take and retain the phone in safe custody until the person is released. Police would then need to apply for a warrant to search the phone’s contents.
Section 154A of the PPRA is an additional power beyond those generally available in a search warrant. It allows a Magistrate or Judge to make a similar order in relation to a device that has been seized under a search warrant after the device has been seized. This includes a legal requirement to disclose a password or pin code.
It is important to note, a Magistrate or Judge can only make an order under section 154A if satisfied there are reasonable grounds for suspecting that device information from the digital device may be relevant evidence.
A person who fails to comply with a s section 154A order to provide information or assistance in respect of a digital device risks being charged with an offence under section 205A of the Criminal Code. This section makes it an offence for a person to, ‘without reasonable excuse’, contravene an order and offence is punishable by a maximum penalty of 5 years imprisonment.
Accordingly, a ‘reasonable excuse’ could be grounds to resist the demand for a person’s pin. Some examples of a reasonable excuse include that a phone contained correspondence subject to legal professional privilege, or a phone contained photos that would be offensive under religious beliefs for others to witness. Caution and legal advice should be taken seeking to invoke a “reasonable excuse” given the implications of such an offence.