The Ontario Court of Appeal has refused to carve out an exception for cell-phones searches incidental to arrest, at least for now.
In R. v. Fearon, 2013 ONCA 106, a flea market jewellery stall operator was packing merchandise into her car when two men robbed her. One pointed a handgun at her and they grabbed jewellery valued at between $10,000 and $40,000. Based on the description provided by a witness, police suspected Fearon may have been involved. He was arrested for robbery while armed with a firearm, cautioned and advised of his right to counsel.
Fearon was patted down and a cell phone was located. A police officer turned it on and manipulated the key pad to discover photographs of a gun, cash and an incriminating draft text message which read, "We did it were the jewlery at nigga burrrrrrrrr."
At the police station, the draft text message was saved and additional checks of the phone were made throughout the night and the next morning as the investigation progressed. In the lead investigator's experience, cell phones found in similar circumstances contain text messages sent between co-accuseds that would assist police in recovering stolen property and apprehending suspects. Many months later, another officer involved in the investigation believed a search warrant was required to download the contents of a cell phone, obtained one and re-examined the phone for the photos and text message.
In the Ontario Court of Justice Fearon contended that the phone search incident to his arrest and the retrieval of the photographs and text message exceeded the common law power and breached s. 8 of the Charter. The evidence obtained should have been excluded under s. 24(2), he argued. In his opinion, the expectation of privacy in a cell phone is so high that a warrant is required before its contents can be examined.
The judge disagreed. In her view both the search at the arrest scene and later at the police station were lawful. She found there was a reasonable prospect of securing evidence of the offence for which Fearon was being arrested by searching the phone at the time of arrest and it was reasonable for the investigator to believe that.
Fearon may have had communications through the cell phone before, during or after the robbery with other perpetrators or with third parties. The search at the arrest scene was brief and cursory and there was no suggestion that it was an expansive or abusive search. As for the searches during the night and early morning hours of the next day, they too were lawful as an incident to arrest.
"Although considerable time and distance had passed from the search at the scene, it wasn't significant because the searches of the cell phone at the station were closely connected to the search at the scene," said the judge.
"The searches at the station were essentially an extension of the search at the scene... The information stored is not so connected to the dignity of the person that this court should create an exception to the police ability to search for evidence when truly incidental to arrest and carried out in a reasonable manner."
She also considered s. 24(2) in the event she was wrong in her analysis and would have admitted the evidence. Fearon was convicted of robbery and sentenced to six years in prison.
Fearon appealed to Ontario's highest court, submitting that the phone search wasn't lawfully conducted as an incident to his arrest and infringed his <s. 8> rights. He argued that there should be a cell phone exception to the search incident to arrest doctrine. In his view, the warrantless phone search incident to arrest (except for a cursory examination to see if it contains evidence of the alleged crime) is prohibited by s. 8 absent exigent circumstances. Police should have applied for a search warrant after the pat down search produced the phone or, at the very least, after the cursory examination when the photos and text message were discovered.
Furthermore, he contended that the trial judge erred by admitting the incriminating text and picture produced from the cell phone under s. 24(2). The Crown, on the other hand, suggested that cell phone examinations made by police fall properly within the ambit of the common law power of search incident to arrest and no "exception" ought to be carved out for this doctrine, thus the trial judge's analysis was correct.
Three interveners also took positions on this issue. The Canadian Civil Liberties Association submitted that cell phones should be excluded from warrantless searches incident to arrest, except in exigent circumstances. The Criminal Lawyers' Association would permit a cursory examination to determine if it contained relevant evidence, then the examination should cease and a search warrant should be obtained. The Director of Public Prosecutions of Canada submitted that there should be no cell phone exception.
Phone searches incident to arrest
For a search to be lawful as an incident to arrest there must be some reason related to the arrest for conducting the search at the time it is carried out, such as protecting police, protecting evidence or discovering evidence. Police do not need reasonable grounds that they will find anything but their reason for searching must be objectively reasonable.
Justice Armstrong, writing the unanimous judgment, found the trial judge did not err in concluding that police reasonably believed examining the phone contents would yield relevant evidence.
The (accused) was arrested about three hours after the robbery. The police had information that the (accused) had acted with a second person and that a third person was involved in the stashing of the stolen jewellery. There was therefore a potential for communication among the three suspected participants. In addition, the police had a legitimate concern about the location of the gun and the stolen jewellery. Any communication among the three suspects could lead to the discovery of one or both. In respect of the photographs found in the cell phone, the police knew from experience that robbers will sometimes take photos of the stolen property and even of themselves with the loot (para. 47).
The court found the initial search upon arrest was valid. Armstrong stated:
I cannot conclude, in the circumstances of this case, that the original examination of the contents of the cell phone fell outside the ambit of the common law doctrine of search incident to arrest. Apparently, the cell phone was turned "on" and it wasn't password protected or otherwise "locked" to users other than the (accused). The police officers had a reasonable belief that they might find photographs and text messages relevant to the robbery. The initial search at the time of the arrest involved a cursory look through the contents of the cell phone to ascertain if it contained such evidence (para. 57).
The subsequent searches at the police station were more difficult for the court to analyze:
Arguably, those examinations went beyond the limits for a search incident to arrest. In my view, the proper course for the police was to stop the examination of the contents of the cell phone when they took the appellant to the police station and then proceed to obtain a search warrant. (A detective) agreed that there was no urgency to search through the cell phone. There is no evidence that it would have been impracticable to appear before a justice to obtain a search warrant in the usual manner.
If it was impracticable for an officer to appear before a justice to obtain a search warrant, the police could have proceeded to obtain a telewarrant under s. 487.1 of the Criminal Code. That said, the trial judge concluded that the examination of the contents of the cell phone at the police station were connected to the search at the scene of the arrest. Although some time and distance had passed from the arrest, the trial judge found that the police were still looking for evidence of the location of the jewellery and the gun as well as for contacts among the parties to the offences. These were findings of fact made by the trial judge. While I would have come to a different conclusion, I cannot say that these factual findings reflect palpable and overriding error.
There is also another observation to make about the search of the cell phone at the police station. No additional evidence appears to have been discovered by the police and none was tendered in evidence from that search (paras. 58-59).
The court concluded the trial judge did not err in finding the phone examination at the time and place of arrest and later at the police station were within the ambit of the common law doctrine of search incident to arrest.
Carving out an exception
The court refused to carve out a cell phone exception to the common law power of search incident to arrest, at least on the facts of this case, finding it neither necessary nor desirable to do so. Armstrong stated:
In this case, it is significant that the cell phone was apparently not password protected or otherwise "locked" to users other than the appellant when it was seized. Furthermore, the police had a reasonable belief that it would contain relevant evidence. The police, in my view, were within the limits of Caslake to examine the contents of the cell phone in a cursory fashion to ascertain if it contained evidence relevant to the alleged crime. If a cursory examination did not reveal any such evidence, then at that point the search incident to arrest should have ceased...
There was no suggestion in this case that this particular cell phone functioned as a "mini-computer" nor that its contents were not "immediately visible to the eye". Rather, because the phone wasn't password protected, the photos and the text message were readily available to other users.
If the cell phone had been password protected or otherwise "locked" to users other than the (accused), it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant (paras. 73-75).
Even if there was a <s. 8> breach, the trial judge's s. 24(2) analysis wasn't in error. Fearon's appeal was dismissed. It is worth noting that Armstrong did, however, suggest that perhaps some future case may produce facts that would lead the court to carve out a cell phone exception to the law.