The police have seized my mobile phone how can I get it back?
This is a question commonly asked by our clients. If you are being investigated or have been charged with a criminal offence, there is a good chance that the police have seized your mobile phone. The police may also seize your mobile phone if you are a witness to a crime that is being investigated. The reason for this is that mobile phones usually hold key pieces of evidence that will assist a police investigation (for example, if you have been charged with drug trafficking, the police will seize your phone to examine your text message and call history which may provide evidence to support the sale of drugs). It can be incredibly frustrating to navigate life without a mobile phone these days, so it is important to know what your legal rights are.
Police powers to seize property
The search and seizure powers of the Victorian Police can be found in legislation relevant to various offences, including under the Drugs Poisons and Controlled Substances Act 1981, Crimes Act 1958, Firearms Act 1996, Control of Weapons Act 1990, Road Safety Act 1986, Magistrates Court Act 1989 and Victoria Police Act 2013.
The Victoria Police Act 2013 specifically deals with police search and seizure powers in Part 14 Division 3.
Retention and return of seized things
Under s 272(1), of the Victoria Police Act 2013, there is a requirement by the police to take reasonable steps to return seized property if:
- The reason for its seizure no longer exists;
- The thing is not required, or likely to be required, in connection with any investigation or proposed investigation (under Part 7, 9 or 10).
Under s 272(2), If the thing seized has not been returned within 6 months, the police officer must take reasonable steps to return it unless:
- There are incomplete proceedings for which the item seized was retained, which commenced within that 6-month period; or
- There is an incomplete investigation under Part 7, 9 or 10, for which the item seized is relevant, commenced within that 6 month period; or
- the Magistrates’ Court makes an order under section 273 extending the period during which the thing may be retained.
If property has been seized by the police and the property has not been returned (for example, the police refuse to return property in circumstances where the reason for its seizure no longer exists), we can apply to the Magistrates Court for an order under s 97 of the Confiscation Act 1997. An order under s 97(3) may direct that the property be returned or that the person be allowed access to the property.
S 267(1) states that the police may apply to a Magistrate for the issue of a search warrant in relation to particular premises or a vehicle located in a public place, if the officer believes on reasonable grounds that there is, or may be within the next 72 hours, on the premises or in the vehicle evidence that a person has committed a relevant offence.
S 267(2) provides a Magistrate with the power to issue a warrant in accordance with the Magistrates Court Act 1989.
If a warrant is issued under s 267 of the Victoria Police Act 2013, the police officer named in the warrant may enter the premises or vehicle named in the warrant and, if necessary, use force. So long as the police officer believes on reasonable grounds that a thing, or thing of a particular kind, named or described in the warrant is connected with the alleged offence, they may:
- Search for the thing;
- Seize the thing;
- Secure the thing against inference;
- Examine, inspect or take samples of the thing.
Seizure of things not mentioned in the warrant
The police may also seize property not mentioned in the warrant if they believe on reasonable grounds that the item is of a kind which could have been included in the warrant or will afford evidence about the commission of any offence. The officer must also believe on reasonable grounds that the seizure of the thing is necessary in order to prevent its concealment, loss or destruction or its use in the commission of an offence (s 271).
The common law describes the seizure of property not specifically mentioned in a warrant as the “chance discovery rule”, which requires goods seized to be ‘adventitiously found’ in the execution of a search warrant. (R v Applebee (1995) 79 A Crim R 554; Siddique v Martin (2016) 51 VR 564 557 ). The common law also states that goods may only be seized in this manner if the police officer holds a reasonable belief that the goods constitute evidence of a serious offence (Siddique v Martin (2016) 51 VR 564 557).
Do the police need a warrant to search and seize my phone?
The general rule is that unless a person provides voluntary consent, the police need a warrant to search and seize a person’s phone. There are certain circumstances, however, where the police do not need a warrant to enter and search premises for the purpose of arresting someone. For example, under s 459A of the Crimes Act 1958, the police can enter and search a premises without a warrant if the officer finds a person committing a serious indictable offence or if they believe on reasonable grounds a person has:
- committed a serious indictable offence in Victoria
- committed an offence elsewhere which, if committed in Victoria, would be a serious indictable offence; or
- escaped legal custody.
The case of Ghani v Jones  1 QB 693 is an old but commonly cited case by Victorian Courts when considering whether a search and seizure is lawful without a warrant. In this case, the police were investigating a woman’s disappearance and, as a result, searched the woman’s father-in-law’s home. As a result of the search, the police seized passports of this man, his wife and daughter, which the police believed to be of ‘evidential value.’ The plaintiffs brought proceedings against the police seeking for the documents to be returned as well as damages. Talbot J, who considered the case, ordered that the documents be returned. The police attempted to appeal the decision but were unsuccessful.
In the appeal, Lord Denning MR (with Edmund Davies LJ and Sir Gordon Willmer agreeing) identified two situations in which seizure may occur:
- the seizure took place where the police entered a person’s house by virtue of a warrant; or
- the seizure was incidental to the arrest of a person, with or without a warrant.
Lord Denning MR found that an assessment of whether a seizure was lawful when disconnected from an arrest requires the weighing up of the freedom and privacy of an individual against the public interest of repressing crime. His Honour identified 5 principles in relation to a lawful seizure in these circumstances:
- Officers must believe on reasonable grounds that an offence has occurred that is of such gravity that it is of first importance that the offenders be brought to justice.
- Officers must believe on reasonable grounds that the articles to be seized constitute material evidence to prove the commission of the serious offence.
- The person in possession of the article being seized must be someone whom the officers believe on reasonable grounds is implicated in the crime.
- The 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.
- These requirements must be assessed at the time of the seizure and are unaffected by any subsequent events (Ghani v Jones  1 QB 693, 708-709).
How long can the police keep my mobile phone?
The answer to this question depends on the facts and circumstances of the case we are dealing with. Generally, if you have been charged with a criminal offence, or you are witness to a criminal offence where a mobile phone is a crucial piece of evidence, you will not get your phone back until the matter has been finalised in court. However, there may be circumstances where we can contact the informant on your behalf and negotiate the return of your phone at an earlier stage of proceedings.
Mobile phone seizure cases
In McElroy v Queen  VSCA 126, the Court of Appeal determined that while the seizure of a mobile phone without a warrant could be considered evidence improperly obtained, the evidence found on the phone was still admissible under s 138 of the Evidence Act 2008. The Court held that the evidence found on the mobile phone had significant probative value forming part of a strong substantial case of a serious offence of armed robbery.
The case of Middin-Hannah v Queen  SASCFC 112 was an unsuccessful appeal against two counts of trafficking in a controlled drug. The applicant sought to exclude evidence of text messages found on his mobile phone, which resulted in a conviction against him for drug trafficking in circumstances where no traffickable quantities of drugs were found at his home.
The police, in this case, had a general search warrant pursuant to s 67 of the Summary Offences Act 1953 (SA) and, following a search of the appellant’s home address, they searched the appellant in the changerooms of a football ground where he was training. The appellant was asked for his mobile phone, which he gave to police along with his PIN code upon request. The police had advised the appellant (who was concerned about the police seizing his phone) that he could get his phone back if they could not find anything of relevance on it. The police, however, did find text messages supporting the police case and seized the appellant’s phone.
On appeal, the appellant argued that the officer who held the general search warrant had no authority under s 68 of the Summary Offences Act 1853 (SA) to seize the smartphone and the illegality of that seizure required the exclusion of the evidence of the text messages.
The appeal was dismissed. The court held that there was no forensic unfairness in adducing evidence of the text messages, although the appellant should have been cautioned before being asked to provide his PIN.