Seizing phones during a drugs search

25 September 2019

Not reviewed after the date of publication

Question:

If a person with a history of drug dealing, is lawfully stopped and searched under section 23 of the Misuse of Drugs Act 1971, and no drugs are found but the person is in possession of one or more phones, can the phone(s) be seized?

Answer:

Section 23(2) of the Misuse of Drugs Act 1971 allows an officer to stop and search a person where there are reasonable grounds to suspect that person is in possession of a controlled drug, and to seize anything that appears to be evidence of an offence under that Act.

It is our opinion that if there is reasonable suspicion that a person is in possession of a controlled drug and then drugs are found, it may be that a phone / phones may be deemed as relevant evidence in the circumstances.

Based on the wording of the legislation, you could technically seize the phones under section 23(2) on their own, as the legislation states ‘any evidence’, however, to seize phones without drugs being present, you would need to be able to justify why they appeared to be evidence of a drugs offence.

In our opinion, in the absence of there being any other evidence at that time of a drugs offence having taken place, seizing a phone under this provision would not be appropriate and would likely be viewed as an abuse of power.

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