Can Authorities search through my personal device without consent in Queensland?
Jye Hopkins – Criminal Law Legal Research Officer
Without a warrant or a person’s consent, police must rely on existing powers to search (either before or after arrest). For example, police must reasonably suspect you possess an unlawful dangerous drug among other possible criteria that gives the basis for a search. Some of these include:
- a weapon (e.g. a knife, explosives or an unlicensed gun)
- illegal drugs or drug implements
- stolen or unlawfully obtained property
- graffiti instruments
- tools used for housebreaking or car stealing
- something you intend to use to harm yourself or someone else with
- evidence of certain breaches of the Liquor Act 1992 (e.g. drinking alcohol in a public place)
- some evidence of either an offence punishable by 7 years jail or wilful damage.
What happens if I don’t consent?
There must be a lawful reason for a police officer to search your phone or computer, however, if there is no lawful reasoning behind the search and you haven’t consented then the court may not consider any evidence found.
You can refuse the question of searching your phone or computer. Police will need a warrant to commence a more extensive search, until then, police have authority to seize the item or items. Courts may grant authority in police officers to obtain your codes or passwords for the devices in question.
What protects me during a search? (Police obligations)
Police are legally obliged to ensure that they respect your dignity and cause minimal embarrassment. They must also limit a search in public to a ‘frisk’ search, away from public view. Usually for searches that are more invasive, a police officer of the same sex is to search you, unless an immediate search is required.
What happens is Police take my property?
If your phone or other mobile device is seized in the process of a search, there must be a valid legal reason behind why it has been kept. Usually when property is taken by the police, you have illegal drugs, stolen property, unlicensed guns, child pornography or something else that might be evidence of an alleged offence. There is also a potential for police to take larger items such as vehicles if you have committed an offence through criminal activity.
After your property is taken, a receipt must be given to you as soon as possible by police. If you are found to be guilty of an offence by the court, the judge or magistrate may order to confiscate or even destroy the property. There is the possibility that upon application to have the property returned, after 28 days it may be back in your hands, this is only applicable to things other than illegal drugs and weapons or any other illegal property.
Police officers cannot search your device without lawful reason, if they breach their obligations to you through incorrect searching methods, or other weighted factors, it would be recommended to seek legal advice to break down further technicalities involved in the law.