• Ben Dickens

Can The Police Take My Phone?

Updated: Apr 27

As we become more reliant on our mobile phones, the idea of losing it can cause a lot of stress and anxiety. The question that a lot of people have though, is under what circumstances can the police take my phone and recover the information stored on it?

According to the Criminal Investigation Act 2006 (WA) (“the Act”) there are multiple circumstances in which police may seize a mobile device, these include:

  1. The police have a search warrant; and/or

  2. The police reasonably suspect that the phone may be relevant to an offence


SEARCH WARRANTS


Police can obtain search warrants to investigate a “target place” or to search for a “target thing”. They are able to seize any “thing” at the target place that may be relevant to an investigation, or that they have a reasonable suspicion has been used for the commission of an offence.


If your phone is the “target thing” or, police reasonably suspect that it’s relevant to the investigation they will likely be able to seize your phone.


REASONABLE SUSPICION


If police don’t have a warrant they may still be able to seize your phone under section 146 of the Act.


This section specifies:

If this Act provides that an officer may seize a thing that is relevant to an offence the officer may do so only if the officer reasonably suspects one or more of the following –

  • That the thing is property that has been stolen or otherwise unlawfully obtained;

  • That the thing may be seized under another written law;

  • That the possession of the thing at that time and place by the person in possession of it is unlawful;

  • That the thing may be forfeited to the State or the Crown;

  • That it is necessary to seize the thing for one or more of the following purposes –

  1. To prevent it from being concealed, disturbed or lost;

  2. To preserve its evidentiary value;

  3. To do a forensic examination on it;

  4. To prevent it from being used in the commission of another offence


Police aren’t able to seize your phone on a whim. They must be able to show that they have a right to seize it, and, that they have a reasonable suspicion that the phone relates to an offence.


DATA ACCESS ORDER


Just because the police have your phone does not mean you need to unlock the device or provide them access to it.

If police want to unlock the device, they are required to obtain a “Data Access Order”. If their application is successful then you would be required to provide information and assistance reasonable and necessary to allow the officers to gain access to the data included in the Order.


If you have been served a search warrant, or had property seized by the police, please do not hesitate to contact one of our criminal lawyers on (08) 9408 5212 and speak to a lawyer regarding your rights.


Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

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