The Nova Scotia Court of Appeal has upheld the warrantless forensic search of a cell-phone incidental to arrest.
In R. v. Cater, 2014 NSCA 74 police launched a massive joint investigation, code named Operation Intrude, into the Spryfield Mob criminal organization for a variety of crimes, including drugs and guns. Police obtained an authorization to intercept the private communications of individuals believed to be involved.
Cater, one of the named targets, was arrested as part of the "take-down" day involving about 100 police officers. Several firearms were found in a search of his father's home. Cater's Samsung cell phone was seized during the booking process at the police station. An officer removed the battery later that day to prevent damage to evidence stored inside.
The phone was sent for forensic analysis a week later and an analysis and subsequent report were completed about six weeks later. Police did not obtain a search warrant before sending the phone for analysis. They also didn't examine the device or thumb through text messages or phone calls because they believed doing so could corrupt potential evidence.
Forensic analysis resulted in evidence, including text messages, contact information and digital images of firearms, supporting a criminal case against Cater on many weapons offences, including firearms storage, possession and trafficking offences.
A Nova Scotia Provincial Court judge found that seizing the phone did not breach the Charter. Cater had been lawfully arrested for possessing a restricted firearm (and could have been arrested for weapons trafficking), was legitimately searched incident to his arrest and his phone was lawfully seized during that search. The judge also ruled that police were entitled to have the phone forensically analyzed incidental to the arrest. The search, he concluded, was also conducted reasonably and no warrant was required.
In the event the evidence was unconstitutionally obtained, the trial judge would have nonetheless admitted it under s. 24(2). First, any breach was inadvertent and not serious. The police officers had acted in good faith and the law with respect to searching cell phones was evolving at the time of this search.
Police testified that seizing all arrestees' cell phones was essential to their investigations and, based on their experience, could provide valuable evidence. The search had a modest impact upon the accused's <is. 8 Charter rights and the subsequent forensic search, in the absence of a warrant, was a technical breach.
Police clearly had the grounds to obtain a warrant and, had they done so, the evidence would have been discovered. Further, the evidence would have been discovered through a cursory search of the phone and the delay between the arrest and the forensic analysis wasn't excessive or unwarranted.
The device wasn't a smart phone and had very limited capacity, described by the judge as the technological equivalent of an unlocked brief case containing correspondence (text messages), an address book (contact information) and photographs (digital images).
Finally, the evidence in the phone was valuable to the prosecution and the truth-seeking function of the criminal trial process. Cater was convicted of several of the weapons offences and sentenced to eight years in prison.
Cater challenged his convictions on many grounds to the Nova Scotia Court of Appeal, including the constitutionality of the phone search. In his opinion, the trial judge erred in finding the search reasonable under <is. 8 of the Charter and ought to have excluded the information found under s. 24(2).
The appeal court disagreed. Although the law about searching cell phones incidental to arrest is unsettled – currently a Supreme Court of Canada decision on reserve (R. v. Fearon) – Justice Saunders found the trial judge did not err in finding no Charter breach.
The search was incident to Cater's lawful arrest. The contents of the phone as extracted, including the metadata, were therefore admissible. Even if the warrantless search was unconstitutional, the evidence should not have been excluded under s. 24(2) as found by the trial judge. She considered the proper factors, her findings were reasonable and her decision to admit the evidence was owed deference.
Cater's appeal was dismissed.