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NSW Police Demanded to See Mobile Phone Without Search Warrant

Discussion in 'Criminal Law Forum' started by artdalemn, 30 October 2015.

  1. artdalemn

    artdalemn Member

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    Police came to my front door and demanded to see my mobile phone.

    I said 'Don't you need a warrant for that?'.

    One of them replied with a straight 'No', and said that if I don't give him my mobile phone I would be committing the offence of 'obstruction', which he went on to describe as 'hindering police investigation'.

    I know I don't have to answer questions, and that they cannot legally search my house without a search warrant, but was I obliged to comply with his demand to give him my mobile phone? What should I have said/done?

    Also, can I record police in my own house or at my front door with a phone camera when they speak to me?
     
  2. Lance

    Lance Well-Known Member

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    Can the police take your phone/ camera?
    When in a public place the police do not have the power to:
    • Prevent a person from taking photographs or filming police officers, operations or incidents;
    • Confiscate photographic or filming equipment;
    • Delete images or recordings; or
    • Request or order a person to delete images or recordings.

    A police officer may only demand your phone if they believe it was stolen, was used in the commission of a crime, or has pictures or footage on it that are evidence of a serious crime (like some types of assault, including assaulting the police).

    This means that there is a possibility that if you film/photograph police on duty and capture evidence of a serious offence, the police may be able to seize and keep your camera or phone and the photos or footage on it. Failure to comply with a request carries a $550 fine. If the police confiscate your phone they must give you a receipt, and they are responsible for any damage done to your phone.

    If a police officer tries to confiscate equipment or delete images or recordings without having a valid reason, they may be liable for prosecution for assault or trespass to your person.

    It’s not clear whether police can ask you to unlock your phone as part of a search. If you have been arrested, refusing to cooperate with police to unlock your phone may be an offence. The best course of action is to ask to speak with a lawyer first

    Can I take photos and/or videos of police officers?
    Generally, you can film or photograph police performing their duties in public.

    Filming the police, especially when they are using force (such as during an arrest), may be beneficial. Good photos or video can provide evidence to support a police complaint, support the defence case for a person charged with a criminal offence, and encourage the police to act within their powers.

    You can also record a conversation you have with a police officer in public, although recording a phone conversation may be against the law.

    You may be told by a police officer that you cannot film or photograph them without their permission. This is not correct. If you were to say ‘This is a public place and I’m allowed to film’ will be enough for the police officer to let you keep filming.

    You should note, however, that you still have a legal obligation to comply with move-on directions. You also have a legal obligation not to interfere with the police or hinder them if they are carrying out an arrest. If the police ask you to step away because they say you are filming too closely, it might be better to just to move back and keep filming, rather than engage in a confrontation that could lead to your arrest.
     

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