Can WA Police Search Your Phone?

The mobile phone in your pocket contains vast amounts of information regarding your communication with others, movements and download history. It’s therefore not surprising that the WA Police will often want access to it!

The following article outlines the law in WA regarding police access to your phone, including the distinction between searches with a warrant and without a warrant, as well as special powers to place a legal obligation on individuals to provide their passcodes.

Searching a Phone With a Warrant

WA Police will be able to access and search your mobile phone if they have obtained a valid search warrant to do so. A search warrant is a written authority provided by a Magistrate allowing police to enter premises or seize property, including electronic devices, if they have reasonable grounds to believe they will find evidence of an offence.

Search warrants are regulated by different issuing legislation and can vary based on the type of crime being investigated. The main legislation governing search warrants in WA includes:

• Criminal Investigation Act 2006 (WA)
• Misuse of Drugs Act 1981 (WA)
• Criminal Property Confiscation Act 2000 (WA)
• Firearms Act 1973 (WA)
• Weapons Act 1999 (WA)
• Crimes Act 1914 (Cth) (for Commonwealth offences)

If police obtain a valid search warrant, they may seize your phone and search it for evidence. However, warrants must specify the items sought, location, and timeframe for execution.

Searching A Phone Without a Warrant

WA Police will be able to search your phone without a warrant in some limited circumstances, most of which are outlined under the Criminal Investigation Act 2006 (WA).

Under section 23 of the Act, police can search a person’s belongings (including a mobile phone) if the owner gives informed consent. However, consent must be voluntary, and individuals have the right to refuse in this circumstance.

Under section 38 of the Act, police can search a public place without a warrant if they suspect an item in the area is linked to an offence. This can include a mobile phone if it is reasonably believed to be directly connected to an offence.

Further, under section 28 of the Act, police may search a person and their possessions, including a mobile phone, at the time of arrest or while in custody if they suspect:

• The phone could assist in escape or self-harm;
• The phone contains evidence of an offence; or
• The phone was used in the commission of a crime.

Finally, for some serious offences (for example, drug trafficking, terrorism, child exploitation material), police may seize a phone under emergency search powers without a warrant if they believe there is an immediate risk of losing evidence.

How Can Police Unlock Your Phone?

In some circumstances, police may be able to access the data in your phone without utilising a passcode, this can include accessing data stored by telecommunication companies, utilising phone intercepts or by-passing the phone lock using a forensic tool.

However, if they need you to supply your passcode, they will likely seek a ‘Data Access Order’ under special powers granted under section 3LA of the Crimes Act 1914 (Cth) for Commonwealth offences, and section 58 of the Criminal Investigation Act 2006 (WA) for state offences.

A ‘Data Access Order’ allows WA Police to apply to a Magistrate for a special order, called a ‘Data Access Order’, to place a legal obligation on an individual to provide their passcode or unlock their phone.

Failing to comply with a Data Access Order is a serious offence. For Commonwealth offences, failure to comply carries a maximum penalty of 10 years imprisonment, if related to terrorism offences, or 5 years imprisonment and/or a fine of 300 penalty units in all other cases. For WA offences, failing to comply carries a maximum penalty of 5 years imprisonment.

In circumstances where a serious offence is being investigated, the police cannot, without a Data Access Order, legally force you to unlock your phone, even if it has been seized.

What If Phone Data Is Accessed Unlawfully?

If WA Police obtain evidence from a mobile phone unlawfully, courts have discretion to exclude it under section 112 of the Evidence Act 1906 (WA).

The High Court in Bunning v Cross [1978] HCA 22 established a balancing test for the exclusion of illegally obtained evidence, weighing factors such as the seriousness of the police misconduct, the importance of the evidence, and whether it could have been obtained lawfully. If the breach is minor and the evidence is crucial to the case, it may still be admitted, particularly for serious offences.

However, courts are more likely to exclude evidence if police acted deliberately or recklessly in violating legal protections, such as conducting a search without consent, a warrant, or lawful authority. The courts are more likely to exclude the evidence if admitting the way in which the evidence was obtained would undermine public confidence in the justice system. Ultimately, the decision depends on whether the need for reliable evidence outweighs the need to deter improper police conduct.

Need Legal Advice?

If you are facing criminal charges, it's crucial to obtain legal advice early on in your matter to ensure your rights are protected.

Andrew Williams is an experienced Criminal Lawyer and Barrister who can provide you with expert legal advice. Andrew offers a range of criminal law services and traffic law services in Perth, Fremantle and throughout Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

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This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.