One question that appears to be on people’s mind is, can a police officer approach you and request to search your phone. We are all aware police officers have numerous powers however, do these powers extend to your mobile phone? To answer this question, we need to first discuss where police powers come from. You see, police officers are bound by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)(LEPRA, here thereafter).  They can only exercise powers that are found within the LEPRA.

Despite the prevalence of mobile phones in society, the LEPRA does not contain any provisions specifically for a police officer to seize and search your phone. However, there are some provisions in LEPRA that inherently allow police officers to search and seize your mobile phone if they can establish a ground for ‘reasonable suspicion’.

You may be wondering what grounds may allow a police officer to search and seize your phone. To determine more precisely the type of grounds we need to look closely at the governing legislation found within LEPRA.

There is both legislation for the search and seizure without a warrant and the search and seizure while under arrest that can be applied to mobile phones.

Can Police search and seize your mobile phone without a warrant?

At current there are two provisions within the LEPRA allowing police officers to search and seize things without a warrant. These powers are as follows:

  1. Section 21 of the LEPRA allows a police officer to stop, search and detain anything in the possession of the person if the police officer suspects there is a link to crime.
  2. Section 36 of the LEPRA empowers a police officer to stop, search and detain a vehicle if the police officer suspects there is a link to crime.

Both provisions require police officers to use their discretion to determine whether there is a reasonable ground to exercise the power. Examples of situations where an officer may choose to exercise either power in relation to a mobile phone include the suspicion the phone is stolen, or the phone is intended to be used as evidence.

If you are arrested can the police seize your phone?

There are two provisions in the LEPRA that allow police to seize your mobile phone in the context of you being formally arrested.

  1. Section 27 of the LEPRA states a police officer may search a person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything that poses a danger, or could allow them to escape, or has been used or was to be used in an offence, or could provide evidence.
  2. Section 28 of the LEPRA stipulates a police officers can search a person in lawful custody after their arrest and seize anything they have on them.

It is important if you have been arrested that you comply with police orders. Failure to comply with the directions of a police officer is a crime under section 199 of the LEPRA.

Do you have to tell the Police your password?

In New South Wales you are not required to give a police officer your password unless an order from the court has been issued. If the police suspect your mobile phone holds evidence to a crime, they can apply to a magistrate for an order pursuant to section 3LA of the Crimes Act 1914 (Cth). The order will stipulate that you must disclose the mobile phones password. Any failure to comply with the order will have consequences. We recommend if you find yourself in this situation that you contact our office so that one of our Specialist Criminal Lawyers can ensure your rights are protected.

Can the police browse through your phone?

Under section 30 of the LEPRA a police officer in conducting a search can examine anything in the possession of a person, including a phone. The scope of the power is questionable considering a police officer can look through your wallet and bag if a ground for ‘reasonable suspicion’ can be established. There is no specific law prohibiting a police officer from browsing your phone. We would advise you to put a password on your mobile phone in case you face a situation where the police seize your mobile.

Case Study

Jane Brown (Jane, here thereafter) was out with friends having a few drinks when a police officer who she was aware had been observing her from afar approached. The police officer introduced himself to Jane and said that he needs to have a look at her phone. Jane fortunately was aware of her rights and politely asked the police officer why he needs to look at the phone.

The police officer explained to her that they had received a tip off that indicated her phone may be linked to a crime. He further said that he would be exercising a police power empowered by section 21 of LEPRA. Following directions, Jane handed her phone over to the police officer.

The police officer attempted to unlock the phone and soon realised there was a password needed. He asked Jane to unlock the phone, but Jane is the nicest way possible replied with “no sorry”. The police officer seized the phone and is now going to need to apply to the court for a warrant if he is to lawfully get Jane to disclose the phones password.


The team at National Criminal Lawyers hoped you found this article informative. If you have any specific topics you would like us to discuss in the future, we encourage you to let us know.


Get In Touch!

"*" indicates required fields