Last July, I wrote about the Supreme Court of Canada hearing arguments in the case of R. v. Fearon, in which the issue to be decided was whether police could, without a warrant, search the contents of the cell phones of people they arrest. We now, sadly, have our answer.In a 4-3 decision issued late last year, Canada’s highest court held that warrantless searches of arrestees’ cell phones were permissible, as long as the arrest is lawful, the search is required to preserve evidence, the search is conducted in a manner tailored to its purpose, and the officers take detailed notes.
In the Fearon case, Fearon was arrested after a robbery at a Toronto flea market. Police officers looked through his cellphone after he was arrested and found pictures of a gun and cash, as well as a text message about jewelry. The Appeals Court held that if a cellphone discovered upon arrest is not locked in any manner, making the contents readily available to other users, and if the officer has a reasonable belief that the cellphone contains evidence relevant to the arrest, a warrantless search is justified as a ‘search incident to arrest’.
The Supreme Court said that they “agree with the Courts of Appeal in British Columbia and Nova Scotia that, generally, the search of the entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest.” However, they went on to hold that certain information on the phone can be reviewed without a warrant. In attempting to “strike a balance between the demands of effective law enforcement and everyone’s right to be free of unreasonable searches and seizures,” the Court said that it could “achieve that balance with a rule that permits searches of cell phones incident to arrest, provided that the search — both what is searched and how it is searched— is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.”
This decision gives Canadian law enforcement broader authority to search cell phones than did a similar decision by the United States Supreme Court earlier this year. In June, the U.S. Supreme Court ruled unanimously that that the U.S. Constitution’s protection against “unreasonable search and seizure” meant that police cannot search the contents of cell phones and smart phones of people under arrest without first obtaining a search warrant.
It is unfortunate that the Supreme Court of Canada didn’t follow the lead of its colleagues in Washington in recognizing that the vast quantities of information on our cell phones should be off-limits upon arrest unless law enforcement can meet the same burden that is required to search for the same information if it was contained on paper or in a folder in our homes.
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