In Australia, the Police have the power to seize and retain a person’s phone as part of an investigation. Usually, there is no time limit to how long they can hold your phone as long as it is for the purpose of an investigation or held as evidence for a matter listed for a hearing or a trial. If the Police determine that your property is not evidence of a criminal offence, or as soon as they can duplicate any relevant information or test the item, they must return your belongings to you. The Police will inform you when you can collect your property, and you will have 28 days to do so. Failure to collect your belongings within this period may result in the Police disposing of the property.
If you use an item to commit a crime, or if possessing the item is illegal and could prevent future serious offences, the Police may seize and forfeit the item. If you disagree with the decision to forfeit your property, you have the right to apply to a magistrate and appeal the decision within 28 days.
Ultimately, the Police must adhere to strict guidelines on how long they can hold your phone and when they must return it.
The Police can only hold your phone for as long as necessary to conduct their investigations. This period varies depending on the nature and complexity of the investigation. In some cases, the phone may be held for a few hours, while in other cases, it may be held for weeks or even months. The around this area is complex and depends on various scenarios.
In NSW, if a police officer lawfully searches you under section 21 of LEPRA and finds an item, such as your mobile phone, they can take it from you only if they have reasonable grounds to suspect that it:
The police officer can perform a search on you without a warrant if they have reasonable grounds to suspect that:
Under Section 27 of LEPRA, if the Police lawfully search you and find your mobile phone, they can only take it from you if:
The Police can perform a search on you without a warrant, and after or during your arrest, only if the police officer has reasonable grounds to suspect that the search is necessary to determine whether you possess anything related to the four circumstances mentioned above.
In general, the Police can keep your phone for as long as it takes to complete their investigation. However, there are legal time limits that apply in some cases. For example, suppose the Police seize your phone under a search warrant. In that case, they can only keep it for a maximum of 30 days unless they obtain a court order to extend this period or if charges against you have been laid and the evidence forms part of a brief of evidence against you.
The Police have the power to access the data on your phone if they have a warrant or a court order. They can also access your phone without a warrant in certain circumstances, such as if they believe there is an imminent threat to public safety.
Do you have to unlock your phone for the Police?
To enable access to a smartphone, the Police must obtain a warrant before compelling an individual to disclose their password, PIN, or encryption keys. For example, let’s say you locked your phone using either your password or PIN. The Police cannot force you to unlock your phone by using biometric features, such as facial recognition, or enter your password or PIN.
Under Section 3LA of the Crimes Act 1914 (Cth), an officer must seek a magistrate’s order to obtain access to an individual’s electronic device if there are grounds for suspicion that it holds evidence related to a crime. Failure to comply with a lawful order obtained by the officer can lead to severe penalties. The penalty for breaching Section 3LA of the Crimes Act 1914 (Cth) varies depending on the specific offence committed. Section 3LA sets out the process for obtaining an order to require a person to provide access to an electronic device. If a person fails to comply with such an order, they may face criminal charges for contempt of court, which can result in fines or imprisonment.
Additionally, suppose the person is suspected of committing a crime and fails to provide access to their electronic device. In that case, they may face charges related to obstruction of justice, hindering an investigation, or other related offences. This can carry significant penalties such as fines and imprisonment. The specific penalty will depend on the nature and severity of the offence and the circumstances surrounding it.
If the Police have seized your phone, they must provide you with a receipt that lists the items taken. They must also inform you of your rights, including your right to legal advice.
To get your phone back, you will need to contact the police station where your phone was taken and request its return. Depending on the circumstances of the case, the Police may require you to provide additional information or evidence before returning your phone. For example, a receipt of the purchase of the phone or another document that shows it belongs to you.
If the Police refuse to return your phone, you have the option to apply to the Local Court of NSW, under section 219 of LEPRA, for an order that requires the Police to return the seized item. The section relevantly states;
219 Disposal of property on application to court
(1) A court may, on application by any person, make an order that property to which this Division applies–
(a) be delivered to the person who appears to be lawfully entitled to the property, or
(b) if that person cannot be ascertained, be dealt with as the court thinks fit.
It is crucial to act quickly and seek legal advice to protect your rights and ensure the safe return of your phone. If the Police have seized your phone and you require its return, contact our team of criminal lawyers in Blacktown.