December 11, 2014 2:04 pm
Updated: December 11, 2014 3:49 pm

What rules must police follow to search a cellphone during arrest?

If your phone is password-protected, do you have to provide your password?

Devin Sauer / Global News
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TORONTO – If you thought police would need a search warrant to look through the personal information in your cellphone during an arrest, think again. In a 4-3 vote, the Supreme Court of Canada ruled Thursday that police can conduct a limited search of a suspect’s cellphone without a warrant—but they must follow strict rules.

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The ruling comes in relation to the case of Ontario man Kevin Fearon, who was convicted after a robbery at a Toronto flea market. Police 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 Ontario Court of Appeal upheld Fearon’s conviction, concluding that because his phone wasn’t protected by a password, police were permitted to look through the device “in a cursory fashion” to see if there was evidence relevant to the crime. Though his Section 8 rights (unreasonable searches and seizures) were violated, the court ruled police had made an honest mistake, “not state misconduct that requires exclusion of evidence.”

So what are the new rules, and does the password-protection stand? We break down what it means for you, according to the R. V. Fearon court ruling, with help from York University’s Osgoode Hall Law School professor Benjamin Berger and University of Ottawa professor Carissima Mathen.

Berger calls it a fascinating technology case that shows a “softening” since rulings in the 1980s about the need for a warrant.

“We walk around with these treasure troves of information about ourselves on our cellphones nowadays, and the court is having to grapple with what that implies and requires of police powers,” he said.

Mathen calls electronic devices “extensions of ourselves.”

“So while there are circumstances in which the police will require access to our property or to some of our devices for really good reasons, the majority decision here authorizes the police to do so really just to assist in their investigation—and that’s, I think, maybe the wrong balance to strike,” she said.

Here are the conditions police must meet to search a cellphone during an arrest without a warrant:

  1. The arrest must be lawful – This is the case for any situation; it just means if the arrest isn’t lawful, then neither is the search.
  1. The search must be incidental to the arrest and police need an “objectively reasonable” reason to conduct the search. These include: protecting police/the accused/the public; preserving evidence; discovering evidence such as finding more suspects.

This criteria means it’s not just that police could discover “some” evidence on the phone, says Berger.

“It’s about discovering some evidence where the investigation would be stymied or significantly hampered, absent the ability to promptly search the cellphone,” he said.

Berger explains the ruling says if police can wait and get a search warrant for the cellphone, it’s best to do that and protect privacy; they would need one of the three purposes above (protecting police or the public, preserving evidence or discovering evidence) to proceed without a warrant.

“There’s obviously going to be a debate between an accused and the police as to whether or not they had reasonable basis to proceed with a search targeted at protecting the public, preserving evidence, or discovering evidence in the narrow circumstance which they describe.”

  1. The nature and extent of the search are tailored to the purpose of the search. This means police activity on the phone must be directly linked to the purpose they give.

“If [police] are saying, ‘I’m interested in very recent communications because I think there might have been some communication that’s relevant to this,’ if [they] started going into the search of emails sent years and years ago, then they don’t have something that’s tailored to the purpose of the search,” said Berger.

The ruling states that in practice, “this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.”

Mathen acknowledges the attempt to put rules in place to constrain police power, but says it might not work.

“In the moment when the police are looking through the cellphone, there’s no question that there is the possibility they will access very private information which may have in fact nothing to do with the subject matter of the investigation,” she said.

  1. Police take detailed notes of what they looked at on the device as well as how it was searched (e.g. which applications or programs they looked at, the extent of search, the time of search, its purpose and duration)

This is the most unique aspect of the ruling, and one that acts as an “accountability mechanism” for the second and third pieces of criteria, says Berger.

Since police have no prior authorization, the detailed notes will allow the arrest to be scrutinized and reviewed after the arrest.

“So after the fact, we’ll be able to look at your notes, make sure that you took careful notes and taking the careful notes will have disciplined you to be careful to follow rules,” he said. “And it’ll give us something that we can review.”

Mathen noted how much discretion is given to police, even with this accountability criteria.

“They’re ultimately going to be assessing the privacy interests of the people whose cellphones they’re searching, and the dissent did not think that was a sensible position,” she said. “That, in fact, wherever possible it should be a judge that makes that determination.”

Whether a phone is password-protected or not is not a determining factor, according to the ruling. Though a suspect has the right to remain silent during an arrest and not give their password, police could still take the phone and unlock it, depending on their technological capabilities.

“Obviously if it’s password-protected then the police will be limited in their ability to search it on the spot but that’s more of a practical consideration,” said Mathen.

In a June 2006 kidnapping case in British Columbia, two password-protected BlackBerry smartphones were seized as part of the investigation. It took an RCMP forensic lab two months to recover information from one, and over two years to recover contents from the other.

Carmi Levy, a tech analyst and writer with Voices.com, said Canadians are likely going to become more savvy about what is stored on phones so we know how to protect our privacy should we find ourselves on the wrong side of the law.

“It wouldn’t surprise me if over time, apps became a little bit more network-centric or network-friendly so that, for example, unless you authenticate the device, you won’t be able to access your content in the cloud,” he said.

“I see a burgeoning new market for security software that protects citizens against unreasonable search and seizure when police want to see their phone.”

With files from Global News producer Leslie Whyte and The Canadian Press

© 2014 Shaw Media

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