Our smartphones know a lot about us. Information that other can use to find out about you. Especially in the case of the police, having access to as much information as possible will make it potentially easier to solve a crime. Recently in the United States, numerous cases are emerging of the police accessing people’s phones (lawfully or otherwise) in order to gain evidence. In order to see if such access can be done in Malta, we reached out to a lawyer regarding the legality of a search of your smartphone.
What does the law say in Malta?
In accordance with Article 351 of the Criminal Code (Cap. 9 of the Laws of Malta), the police may, in a public place, or in any place to which the public is admitted, even against payment of an entrance fee, search any person or vehicle,
Essentially, if you’re in public, they have the power to search you, or your phone.
if they have a reasonable suspicion that the search will discover the possession of things, which are prohibited, stolen or acquired as the result of an offence whatsoever, or which may be used or may have been used in the commission of an offence or which may serve in the investigation of an offence.
If the officer feels that a search will help an investigation, or stop an illegal act, they can search you if they have reasonable suspicion.
What constitutes “Reasonable Suspicion”?
“Reasonable suspicion” is a bit of a vague term. The officer does not need to have any certainty. And the evidence of their suspicion does not need to be admissible in court. This means that the police can act upon hearsay. If they believe the smartphone is connected to an offence in any way, they can seize and search your phone.
In the event of police misconduct
What about when you see an event of police misconduct, say an officer texting while driving and record it on your phone? The police officer in question cannot confiscate or search your phone lawfully. Unless the police officer has other “reasonable grounds” to search your phone.
If you are caught doing something potentially illegal
If the officer believes that searching the phone can serve the investigation of an offence. Or they believe the phone was involved in the offence in any way, they have every right to search and confiscate your phone, or any object for that matter.
If you are on private property
In that case, the police will require a warrant from a magistrate. This includes any house or building that is not considered a public space. Not just your own home. There are some cases where the police may enter a home and search without a warrant. Article 355E(1)(a) to (e) provides the exceptions.
Should police officers be able to search our phones? Let us know in the comments below.