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The huge advances in technology that the world has seen in the past decades can seem quite threatening when they intersect with police search powers. Our mobile phones paint a detailed and intricate picture of our lives. When the police obtain the contents of a mobile phone it is likely that they will receive far more data than what is required for the purposes of their investigation. If you are a suspect in a police investigation it is more crucial than ever to know your rights and understand police search capabilities. It is also helpful to understand the technologies that police can deploy in the course of law enforcement to extract information from your phone. This article looks at police search powers in relation to mobile phones. It explains the circumstances in which the police can hack your phone, listen to your calls, and read your text messages.
Stop and search powers
Whilst police powers to seize and search your electronic devices do exist, it is important to understand that unless you are suspected of a terrorism offence or a child sex offence, the police cannot simply stop you randomly in the street and demand to look at your phone without your consent.
Police stop and search powers enable officers to stop and search you if they have ‘reasonable grounds’ to suspect you are carrying illegal drugs, weapons, stolen property, or something which could be used to commit a crime such as a crowbar. These powers are set out in Section 1 of the Police and Criminal Evidence Act 1984.
Before you are searched, the police officer must give you the following information:
Police should also advise you that you can have a record of the search and (if this isn’t possible at the time) how you can get a copy. There are also situations where you could be stopped and searched without reasonable grounds for suspicion, if this is approved by a senior police officer. These include where serious violence could take place, such as where you are carrying a weapon or have used one or you are in a specific location or area. However, these powers were not intended to be used to gather data from mobile phones (in fact, the law was written before the era of smartphones).
Under stop and search powers, police do not have the right to search your phone. Whilst police officers may question you, you do not have to answer their questions. Similarly, whilst a police officer might ask to look at your phone, you are not under any obligation to consent to this. There is an exception to this if you are suspected of terrorism offences, as noted, however.
Search powers following an arrest
Once you have been arrested for an indictable offence, police have the power to seize your phone where it is connected to that offence, or a similar or connected offence.
Section 17 of PACE and Section 18 of PACE set out police search powers at the time of and subsequent to an arrest. Essentially, police may search a premises at the time of exercising their power of entry in order to arrest a suspect. Police may also enter a premises without a warrant where it is occupied or controlled by a person who is under arrest for an indictable offence. During these searches, the police have the power to seize any item that they have reasonable grounds for believing is connected to that offence, or a related or similar offence. This includes your mobile phone.
In addition, Section 32 of PACE gives police the right to search an arrested person for anything that might be evidence relating to an offence. So if you have been arrested on suspicion of dealing drugs, the police can seize your phone to look for evidence to prove their allegations.
Search powers with a warrant
The police can seize your phone from your place of work or a friend’s house if they have a warrant. The police can apply to the Magistrates’ Court for a warrant that will enable them to search a premises (this could be any premises, not necessarily one connected with the suspect). They must satisfy the court that there are reasonable grounds to believe that an indictable offence has been committed, and there is material on the premises (such as a phone) that is likely to be of substantial value to the investigation, and the material is likely to be relevant evidence. This is set out at Section 8 of PACE.
Clients have told us about situations where the police have asked them to consent to the extraction of their data by providing their pin code to access the device. Even if you have nothing to hide, whether or not you should consent to phone extraction is a difficult question, which depends on the special circumstances of your case. There is a risk that in extracting all of your data, the police may bolster otherwise weak evidence or identify other offences that you have committed. In addition, the data will allow the police to build up a detailed profile of your life. On the other hand, enabling the police to access your device could be an important way to prove your innocence. Seek the advice of one of our criminal defence solicitors today if you are facing this situation.
There are two situations in which law enforcement can hack your phone. The first is where your phone is seized by the police. The second is where law enforcement conducts remote surveillance on you because you are suspected of a serious offence.
Mobile phone extraction following an arrest
This type of hacking uses technology to retrieve the contents of your phone. Cellbrite has developed the Universal Forensic Extraction Device, which allows police to download all the data kept on your phone. Sometimes the extracted data will include deleted information. This is less likely if your phone has an SSD hard drive, because these types of hard drive empty themselves of deleted information. Often, mobile phone technology can override your pin code, meaning that even if you do not give police your pin code, they can still access the data on your phone. However, the newer models of iPhone are reportedly more secure and difficult to hack.
Surveillance activities by law enforcement
Police also have access to technologies that allow them to conduct remote surveillance, which includes intercepting your calls and messages. In order to do this, police exploit loopholes in mobile phone technology. This has attracted criticism from civil society organisations such as Privacy International that argue that by doing this, the police are making us more vulnerable to organised criminals exploiting the same weaknesses in the technology. Whilst surveillance activities are regulated by law, law enforcement agencies tend to keep quiet about the extent to which they are using these powers.
There are various ways in which police can listen in to phone calls. Police can use International Mobile Subscriber Identity (IMSI) catchers to track your phone and monitor your calls. An IMSI is a number unique to your SIM card. Once your phone connects with an IMSI catcher, it reveals this number. The IMSI catcher can then reveal your phone’s location by measuring the strength of the signal from the phone. Police forces including the Metropolitan Police, Essex Police, and Kent Police are using this technology. IMSI catchers can listen to your phone calls. Some can re-route your calls or edit your messages, or block your phone so that you can no longer use it.
The police can read your text messages when they obtain your data through phone extraction. In addition, they can get an order from the court that will oblige your service provider to disclose a list of the times and dates that messages were sent and their recipients. These lists will not usually contain the contents of text messages. However, your service provider can see the content of unencrypted text messages, so it is possible that the police could obtain this information. The police can also obtain your text messages through phone interception, such as by using an IMSI catcher.
Has your phone been seized by the police? Are you wondering whether to hand over your pin code and you want some legal advice in respect of your options? Look no further than the expert team at Stuart Miller Solicitors. Our tech savvy team of criminal defence solicitors will explain the police’s powers in relation to your phone and its contents. We treat our clients with the utmost care, confidentiality and respect. Call or email us for a no-obligation consultation today.
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