Just like every other aspect of our lives, more and more evidence in criminal investigations and trials is taking a digital form.
In addition to videos and photos, smartphones contain a wealth of information that may be of interest during a criminal investigation including:
- Message history and contacts
- Personal details
- Places you’ve been
- Internet browsing history
- Social media
- Calendars and planners
This has led to people’s phones being seized as evidence against individuals accused of a criminal offence, as well as occasionally from potential witnesses as well.
While this has helped in many criminal investigations, it also poses plenty of potential issues.
In addition to the sensitive personal information many of us keep on our phones, some use their phones as their sole contact method, and many use it to process payments, too.
Our increasing reliance on these devices can mean that even a relatively short phone seizure can result in significant disruption and can have considerable privacy implications – our identify theft lawyers have dealt with fraud cases where someone’s identity was obtained through their phone.
As such, it’s important that you know your legal rights regarding phone seizure – which is exactly what our team will be focusing on today.
Can the police take your phone as evidence?
Under the Evidence Act 2008, Victoria Police are allowed to seize certain items if there are reasonable grounds to believe that:
- An offence has occurred
- The items seized constitute material evidence to prove the commission of the serious offence
- The person in possession of the item being seized is implicated in the crime
In addition to the clauses setting out when police may lawfully seize your property, the Evidence Act 2008 also dictates that police are not permitted to retain the seized articles for longer than is reasonably necessary to complete their investigations, or to create a copy of it.
With mobile phone footage becoming an increasingly common type of evidence in criminal investigations, this means that phones represent a large (and growing) portion of seized items.
If you’re only the witness to a crime and not a suspect, police will only hold onto your phone long enough to create a copy of the data on it before handing it back. In many cases, it can be a matter of minutes as police make a copy of photos or videos on-the-spot.
It’s a different story when it comes to individuals who are suspected of a criminal offence, however.
If it’s believed that there is material (that’s to say, important) evidence on your phone or that your phone itself is a potential piece of evidence, police may retain your phone for longer:
- If the phone was stolen, it is unlikely to be returned
- If the phone itself is a piece of evidence rather than just the data on it, it may be retained for the duration of the investigation
- If police are only interested in what’s on the phone, it is likely to be returned after the relevant data is copied
What to do if your phone is seized by the police: getting your phone back
When your phone is seized, certain procedures need to be followed.
Specifically, the officer executing the seizure will need to provide you with a document listing all the items seized, which both of you will need to sign.
In addition to providing a record, this document is also crucial in reclaiming any seized items.
As we mentioned earlier, the law only allows police to hold onto seized items for as long as reasonably required to for an investigation.
If you are not accused of a criminal offence and have had your phone seized, you can get in contact with the police station it’s stored at and reclaim your seized phone shortly.
If your phone seizure is not seized in accordance with these procedures, we recommend engaging a criminal law firm Melbourne to assess your options.
Do the police have a right to search your phone?
As mentioned above, the Evidence Act 2008 permits Victoria Police to seize items if they believe that it will provide material evidence in a criminal investigation.
Oftentimes, that includes not only confiscating the phone itself, but also searching through the data and information contained on it, including photos, videos, location data and message history, just to name a few.
Do police need a warrant to search my phone?
Unless you give voluntary consent, police will need to obtain a search warrant in order to go through the contents of your phone.
However, previous cases such as McElroy vs The Queen (2018) VSCA 126 have set a precedent that muddies the waters.
The implications of McElroy vs The Queen (2018)
In this particular case, an individual was arrested and had their phone lawfully seized in the process.
However, their phone did not have a lock and while in police custody, the owner received a message, prompting police to go through the owner’s message history. This search yielded substantial evidence that helped convict the defendant of armed robbery.
Despite attempts by the defendant’s lawyer to have the evidence dismissed owing to the lack of a formal warrant, the Court of Appeal upheld the conviction, citing the:
- Importance of the evidence
- The seriousness of the crimes alleged
As a result, there is currently considerable confusion surrounding individuals’ legal rights regarding phone searches.
In order to ensure that your legal rights are upheld and your privacy respected, it’s important to consult with a criminal lawyer.
The importance of good legal representation
Criminal law (and law in general) has a well-deserved reputation of being extremely complicated and difficult to navigate. That’s why it’s so important that you have the right legal advice to help you understand the process, and ensure that things are carried out properly.
Our criminal lawyers in Melbourne’s CBD can prepare you for every part of the criminal justice system, from preparing you for police interview questions to forming a defence strategy and ensuring that your case is properly presented during trial.
We offer after hours Legal Aid in Victoria for a number of different offences, meaning that, if eligible, you can enjoy quality legal representation without the associated cost.
And it isn’t just individuals who are accused of criminal offences that need legal representation – if you’ve had your phone seized by police, our team can answer your questions and offer qualified advice regarding your options.