Police Took Your Phone. Can They Search It — and Do You Have to Unlock It?

Imagine NSW Police arrest you after an alleged assault. They search your pockets, seal your mobile phone in an evidence bag, and back at the station an officer asks a simple question: "What's your passcode?"

Most people assume one of two things. Either police can do whatever they like once they have the phone, or you can simply refuse to unlock it, no matter what. Neither is right.

Under NSW law there are three separate questions hiding inside that one moment: can police seize the phone, can they search what's on it, and can they compel you to unlock it? The answers aren't the same — and knowing the difference can matter enormously.

Can NSW Police Seize Your Phone?

Yes. In a range of situations, police can lawfully take a phone.

Without a warrant, police can search a person they reasonably suspect is carrying something stolen or unlawfully obtained, something used or intended for use in connection with an indictable offence, a dangerous article in a public place, or prohibited drugs — categories that also cover weapons, firearms and explosives offences. Anything they reasonably suspect is evidence can be seized, and these stop-and-search powers extend to vehicles, so a phone sitting in a car can be taken on similar grounds. Police can also search you after arrest, again once you're in custody, and can take a phone under a search warrant or at a crime scene.

The key point is that police don't necessarily have to prove the phone holds incriminating material before taking it. Depending on the power being used, a reasonable suspicion that it might is enough.

Seizing the Phone Is Not the Same as Reading It

Here's where the common assumption breaks down. The power to take a phone is not automatically the power to open it and read every message, photo, email, banking app and cloud account it can reach.

A smartphone is a doorway — often to years of private conversations, financial records, location history, photographs and data stored remotely in the cloud — and the law treats that reality seriously. Whether police can actually access that data depends on the authority they're relying on: a search warrant, a crime scene warrant, your consent, or a separate court order known as a Digital Evidence Access Order.

Do You Have to Give Police Your Passcode?

There's no law in NSW that you must reveal your passcode just because an officer asks. Police can request that you unlock the phone voluntarily — but a request is not a legally enforceable direction. It helps to separate three very different things: police asking for your consent, police telling you that you're legally required to assist, and police relying on a court-issued Digital Evidence Access Order.

In practice, the most common way police get into a phone is the simplest one: they ask, and the person says yes. A phone that's voluntarily handed over and unlocked is generally treated as lawfully obtained — which means the protections around your passcode fall away the moment you consent.

People often unlock because an officer simply asks, because they're told the phone will be seized anyway, or because they believe they'll get it back sooner if they cooperate. None of those make it a legal requirement to unlock, and doing so can hand police access to material they'd otherwise have no straightforward way into. Before you unlock anything voluntarily, it's usually wise to exercise your right to silence and get legal advice first.

That position changes significantly, though, once police hold a valid Digital Evidence Access Order.

What Is a Digital Evidence Access Order?

A Digital Evidence Access Order is a court-authorised order under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the legislation commonly known as LEPRA.

Under the current law, the order is generally connected to an existing search or crime scene warrant, and before granting it an issuing officer must be satisfied there are reasonable grounds to suspect evidential material is held in — or accessible from — the device. It can be directed not only at a suspect but at an owner, user, employee, contractor or system administrator with relevant knowledge of the device or its security.

Once it's in force, an officer can direct the named person to give reasonable and necessary assistance to access, copy or decrypt the data — and the legislation expressly says that can include unlocking a device secured by a fingerprint or facial scan. So biometrics are not a loophole. An order can also reach data that's merely accessible from the phone — linked accounts, apps, backups and cloud storage — so unlocking to show police one message can open years of emails, photos and files. In plain terms, a valid order can require you to provide a password, unlock the phone, or use your fingerprint.

Can You Refuse to Comply?

Refusing a casual request is a world apart from refusing a lawful direction under an order. A person named in one must not, without a reasonable excuse, fail to comply — the maximum penalty is currently 100 penalty units (a fine of up to $11,000), five years' imprisonment, or both. And the Act is explicit that it's not a reasonable excuse to refuse simply because complying might incriminate you; the usual privilege against self-incrimination doesn't apply here.

"Reasonable excuse" is a genuine but narrow concept that turns entirely on the facts — genuinely being unable to remember an old or automatically generated password is very different from simply choosing not to cooperate. It's exactly the kind of thing to get advice on rather than gamble, and no responsible lawyer will advise you to obstruct a lawful investigation. If police say you're legally required to unlock your phone, it's fair to ask whether they're making a request or giving a direction under a Digital Evidence Access Order, and to ask to inspect the order. What you shouldn't do is physically resist police or give false information.

A Note on Commonwealth Powers

NSW isn't the only source of these powers. Where a matter has a federal aspect — say, an investigation involving the Australian Federal Police — a separate Commonwealth regime under the Crimes Act 1914 (Cth) can apply. Often called a 3LA order, it works much like the NSW version, compelling a person to provide passwords, PINs or biometrics to unlock a device — but for serious offences the penalties can be higher.

Are the Laws About to Change?

Possibly. In June 2026 the NSW Government announced proposed reforms to expand these powers in organised crime investigations — including letting police, in qualifying matters, seek a Digital Evidence Access Order for a device already lawfully seized during an arrest, roadside stop or other lawful detention, without first obtaining an accompanying search or crime scene warrant. At the time of writing, that's an announced proposal, not yet law, and it's aimed at organised crime rather than everyday matters.

What This Case Means for You

If police ask you to unlock your phone, the single most valuable thing you can do is not guess. Stay calm and ask a few simple questions: Am I legally required to unlock this? What power or order are you relying on? May I inspect the order? Can I speak to a lawyer first?

Never lie about a password, invent false information, delete or wipe data, or

physically interfere with police — tampering after you know of an investigation can create fresh allegations and rarely prevents recovery anyway. But you are entitled to understand the basis for what's being asked. Whether you can lawfully decline depends entirely on the circumstances, because a voluntary request, a search warrant and a Digital Evidence Access Order are three different things with three different consequences. Seizing a phone doesn't, by itself, answer whether police can read all of it or make you open it — but where a valid order applies, refusing without a reasonable excuse is itself a serious criminal offence.

At Surge Legal, we act for clients in police investigations and criminal proceedings throughout NSW. If police have seized your phone, or directed you to provide access to it, getting advice before you respond can be critical — sometimes more important than the underlying matter itself.

Call our team on (02) 8551 7851, contact us online or book a consultation. You can also read more about how we help on our Criminal Law page.

This article provides general information only, and it does not constitute legal advice. Please contact Surge Legal to discuss your individual circumstances.