Supreme Court Sanctions cell phone searches

Mike Novakowski
January 12, 2015
By Mike Novakowski
Canada's highest court has narrowly upheld searches of cell phones incident to arrest but modified the general framework of such searches to address heightened privacy concerns.

Canada's highest court has narrowly upheld searches of cell phones incident to arrest but modified the general framework of such searches to address heightened privacy concerns.

In R. v. Fearon, 2014 SCC 77 police reasonably believed the large quantity of jewellery stolen by two men, one armed with a handgun, was readily-disposable. Officers wanted to locate the gun before it could be used again and the jewellery before it could be sold or hidden.

Fearon and another man were arrested but they didn't have the jewellery or handgun. Fearon was patted down and a cell phone was found in his pants pocket. Police looked through the phone by manipulating the key pad to enter into different modes and accessed text messages and photographs. They found photos of males and a gun, along with an unsent text message that read: "We did it were the jewelry at nigga burrrrrrrrrrr."

Police also checked some of the phone numbers called by Fearon to see if they led to possible associates. Officers eventually obtained a warrant to search a getaway vehicle they seized and secured shortly after the robbery. The search revealed a loaded Smith and Wesson silver semi-automatic handgun.

Police also obtained a warrant some months later to search and download the contents of the cell phone, but no new evidence was discovered. Fearon was charged with robbery and other offences.

In the Ontario Court of Justice Fearon argued that the search of his phone breached s. 8 of the Charter and that the evidence out to have been excluded under s. 24(2). The judge disagreed and found that the search was incident to arrest. He held the search was directed at public safety (locating the handgun), avoiding the loss of evidence (the stolen jewellery) and obtaining evidence of the crime (information linking the accused to the robbery and locating potential accomplices). In the judge's view, the officer reasonably believed that the cell phone might contain evidence of the robbery.

"I find that there was a reasonable prospect of securing evidence of the offence for which the accused was being arrested in searching the contents of the cell phone," said the judge. "In particular, it was reasonable of [the officer] to believe that the arrestee... may have had communication through the cell phone before, during or after the robbery with other perpetrators or with third parties."

Police also said it was important to follow up all leads immediately because they still had outstanding jewellery, a firearm and an unidentified suspect. There was no s. 8 violation and the photos and text message were admissible. The judge found that the gun recovered from the car was used in the robbery and depicted in the photo found on Fearon's cell phone and convicted him of robbery with a firearm and related offences.

Fearon challenged his convictions to the Ontario Court of Appeal, where it was unanimously dismissed. It upheld the trial judge's conclusion that the search was incident to arrest and there was no s. 8 Charter breach.

The initial search by the arresting officer was within the ambit of the power to search incident to arrest. Police reasonably believed that they might find relevant evidence. The appeal court found it unnecessary and declined to create an exception to the power of search incident to arrest with respect to cell phones, given that the phone was not password-protected or otherwise "locked." However, the court suggested that it would not have been appropriate to search a locked phone without a warrant.

Fearon appealed to the Supreme Court of Canada. He submitted that the draft text message and two photos were inadmissible because the search was unreasonable under s. 8. In his view, police did not have the common law power to search his cell phone incident to a lawful arrest.

Search incident to arrest

A four member majority of the Supreme Court found that cell phones could be searched as an incident to arrest, subject to certain limitations. In doing so, the majority noted that competing interests must be weighed; the public purposes served by effective control of criminal acts (demands of effective law enforcement) versus respect for the liberty and fundamental dignity of individuals (everyone's right to be free of unreasonable searches and seizures).

The general framework of the common law power to search incident to arrest permits searches without a warrant, even in circumstances in which the grounds to obtain a warrant do not exist. Justice Cromwell, speaking for the majority, described the general requirements this way:

The common law framework requires that a search incident to arrest must be founded on a lawful arrest, be truly incidental to that arrest and be conducted reasonably [para. 27].

The majority, however, went on to modify the general common law power in a way that would recognize the potentially significant informational privacy in a cell phone and the potential invasion of privacy from searching it by placing meaningful limits on the purpose, manner and extent of the search. The search of a cell phone or similar device will not be permissible on every arrest. The following factors are required for a reasonable search;

  • The arrest must be lawful;

  • The search must be truly incidental to the arrest. Police must have a reason based on a valid law enforcement purpose to conduct the search, and that reason must be objectively reasonable. Valid law enforcement purposes are:

  • Protecting police, the accused or the public;

  • Preserving evidence; or

  • Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. However, if ... all suspects are in custody and any firearms and stolen property have been recovered, it is hard to see how police could show that the prompt search of a suspect's cell phone could be considered truly incidental to the arrest as it serves no immediate investigative purpose.

This will mean, in practice, that cell phone searches are not routinely permitted simply for the purpose of discovering additional evidence. The search power must be used with great circumspection. It also means, in practice, that the police will have to be prepared to explain why it was not practical (and I emphasize that this does not mean impossible), in all the circumstances of the investigation, to postpone the search until they could obtain a warrant;

  • The nature and extent of the search must be tailored to the purpose of the search. As the majority stated, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined, as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted; and

  • Police must take detailed notes of what they have examined on the device and how it was searched. [O]fficers must make detailed notes of what they have examined on the cell phone... In my view, given that we are dealing here with an extraordinary search power that requires neither a warrant nor reasonable and probable grounds, the obligation to keep a careful record of what is searched and how it was searched should be imposed as a matter of constitutional imperative.

The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization. Having a clear picture of what was done is important to such review being effective.

In addition, the record keeping requirement is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.

In modifying the general framework in its approach, the majority notably rejected (1) a categorical prohibition against searching a cell phone without a warrant, (2) imposing a requirement that officers have reasonable grounds to believe that evidence of the offence will be found on the cell phone, or (3) a prohibition of cell phone searches in all but exigent circumstances.

In this case, the majority found Fearon's arrest for robbery was lawful. The phone searches leading to the text message and handgun photo were also truly incidental to that arrest. They were conducted for valid law enforcement objectives and appropriately linked to the offence for which he had been lawfully arrested. However, the searches were nonetheless held to be unreasonable and therefore a s. 8 breach because there was no "detailed evidence about precisely what was searched, how and why."

Admissibility

Despite the breach, the evidence was admitted under s. 24(2). The police acted in good faith, which favoured admission. The dominant view at the time of the arrest was that cell phone searches incident to arrest were permissible.

"Of course, the police cannot choose the least onerous path whenever there is a gray area in the law," said Cromwell.

In general, faced with real uncertainty, the police should err on the side of caution by choosing a course of action that is more respectful of the accused's potential privacy rights. But here, if the police faced a gray area, it was a very light shade of gray, and they had good reason to believe, as they did, that what they were doing was perfectly legal.

As for the impact on Fearon's Charter protected interests, his informational privacy interests were impacted, but not gravely. This factor favoured exclusion, but did so weakly. Finally, the evidence was cogent and reliable. Society's interest in the adjudication of the case on its merits favoured admission.

Crimes types

The majority hinted that some crimes will more likely justify a limited search of cell-phones:

The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking.

Generally speaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the law enforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences [para. 79].

Fearon's appeal was dismissed.

A different view

A three member minority concluded that police officers are not entitled to search a mobile phone found in the possession or vicinity of an accused person upon arrest. In its opinion, "searches of personal digital devices risk similarly serious encroachments on privacy and are therefore not authorized under the common law power to search incident to arrest."

The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection.

Only judicial pre-authorization can provide the effective and impartial balancing of the state's law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person's phone or other personal digital communications device.

Our common law already provides flexibility where there are exigent circumstances, when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence [para. 105].

Thus, the minority would permit a warrantless search of a cell-phone incident to arrest only in cases of exigent circumstances, "when (1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety or (2) there are reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by a warrantless search."

In this case, police were required to obtain a warrant before searching the phone because they did not have exigent circumstances, although they were entitled to seize the phone pending an application for a warrant.

The minority would have excluded the evidence because it was unconstitutionally obtained and allowed Fearon's appeal.

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