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Warrant required to search computer


December 3, 2013
By Mike Novakowski

Police who find a computer while executing a search warrant must obtain specific pre-authorization to search it,
Canada’s highest court has ruled.

In <R. v. Vu, 2013 SCC 60,> a BC Hydro subcontractor reported an electricity diversion. Police sought and obtained a search warrant under <s. 487> of the Criminal Code to investigate the theft. The warrant authorized officers to search not only for equipment used to divert electricity but also for “documentation identifying ownership and/or occupancy” relevant to the investigation of the offence.

Police found a marijuana grow-operation in the basement, an electrical bypass and two computers and a cell phone in the living room. A desktop computer was connected to a security video camera monitoring the front of the residence. Video showed a black Honda CRV in the driveway; Vu owned a 2007 black Honda CRV.

A laptop was actively running MSN Messenger (on-line chat) and had Facebook open, both using Vu’s name. Using the laptop’s search tools, police located a resumé under Vu’s name and took a photo of it. They also examined the cell phone and found a photo believed to be of Vu. They seized all three devices and charged Vu with production of marijuana, possession for the purpose of trafficking and theft of electricity.

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A British Columbia Supreme Court judge held that the Information to Obtain (ITO) did not support reasonable grounds to believe that documentation showing ownership and/or occupancy of the residence would be found inside the premises. The officer did not say he believed this to be so, there were no facts to support such a belief and the judge did not accept that the justice of the peace (JP) could have inferred that they would be found.

The trial judge also ruled that police were not authorized to search the computers and cell phone, holding the searches to be unreasonable.

“It is no longer conceivable that a search warrant for a residence could implicitly authorize the search of a computer (or a cellular telephone containing a memory capacity akin to a computer) that may be found in the premises, even where the warrant specifically grants an authority to search for documentary evidence of occupation or ownership,” she said.

In her opinion, a warrant must expressly authorize a search for documents in electronic form. Although the judge admitted the images from the security computer, the evidence obtained from the laptop and phone were excluded. She wasn’t satisfied beyond a reasonable doubt that Vu had knowledge and control of the grow-operation and subsequently dismissed all charges.

On appeal, BC’s top court concluded there was a basis on which the authorizing justice could have included documentary evidence in the list of things to search for. In its view, the trial judge re-weighed the grounds set out in the ITO and substituted her view for that of the authorizing judge. Justice Frankel, writing the judgment, found the facts in the ITO were sufficient to support a reasonable inference that documentation evidencing ownership or occupancy would be found in the residence.

The appeal court also disagreed on the warrant’s authority to search the computers and cell phone for documents showing ownership or occupancy. In its opinion, there wasn’t anything in the nature of electronic devices that required they be treated differently than other receptacles found on a premises.

The warrant authorized searching for documentation that could assist in determining who controlled the premises, including documentation contained in the computers and cellular telephone. The evidence obtained from the examination of those devices should have been admitted. The Crown’s appeal was allowed, Vu’s acquittals were set aside and a new trial ordered.

Vu appealed to the Supreme Court of Canada, arguing that the appeal court erred in finding the warrant properly permitted a search for documentation, including on the computers and phone, identifying the owners and/or occupants. The high court unanimously rejected one of Vu’s submissions but agreed with another.

{Documentation}

The Supreme Court found the ITO established reasonable grounds to believe that relevant documents would be found in the residence. Although the affiant police officer did not expressly state his belief that documentation identifying ownership and/or occupancy would be found, the facts in the ITO were sufficient to support a reasonable inference that they would be and a JP could draw that inference. Thus, the BC Supreme Court justice (reviewing judge) erred in substituting her opinion for that of the JP issuing the warrant (authorizing judge).

<The question for the reviewing judge is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge”. In applying this test, the reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO; the informant need not underline the obvious.

The ITO set out facts sufficient to allow the authorizing justice to reasonably draw the inference that there were reasonable grounds to believe that documents evidencing ownership or occupation would be found in the residence. In particular, the ITO referred to the premises to be searched as a “residence” and as a “two storey house”.

It also indicated that the (accused) owned the property and that electricity was being consumed there. In my view, it is a reasonable inference that a residence would be the place to look for documents evidencing ownership or occupation. Where else would one expect to find such documents if not in the residence itself?

Moreover, I think that the authorizing justice could reasonably infer that a place was being occupied as a residence from the fact that electricity was being consumed at that place and that it had an owner> (references omitted, paras. 16-17).

It was open to the authorizing justice to lawfully issue the search warrant for documents evidencing ownership or occupation of the property, thus there was no <s. 8> Charter breach on this basis.

{Computer searches}

The court noted that privacy interests in computers (and cell phones) are markedly different from receptacles such as filing cabinets and cupboards, ruling that a warrant authorizing the search for ownership and occupancy documentation did not allow police to search these devices. To do so, they would have needed specific, prior authorization. After-the-fact review, it found, would not provide sufficient protection for the privacy rights at stake during a computer search. In a sense, computers are to be treated as a separate place requiring a warrant.

said Justice Cromwell, speaking for the court. <These factors, understood in light of the purposes of s. 8 of the Charter, call for specific pre-authorization…

Computers differ in important ways from the receptacles governed by the traditional framework and computer searches give rise to particular privacy concerns that are not sufficiently addressed by that approach. One cannot assume that a justice who has authorized the search of a place has taken into account the privacy interests that might be compromised by the search of any computers found within that place. This can only be assured if, as is my view, the computer search requires specific pre-authorization> (para. 2).

And further:

<(T)he general principle is that authorization to search a place includes authorization to search places and receptacles within that place. This general rule is based on the assumption that, if the search of a place for certain things is justified, so is the search for those things in receptacles found within that place. However, this assumption is not justified in relation to computers because computers are not like other receptacles that may be found in a place of search. The particular nature of computers calls for a specific assessment of whether the intrusion of a computer search is justified, which in turn requires prior authorization> (references omitted, para. 39).

The court then went on to outline, in a viable way, how its ruling applied to police searches of computers.

(para. 3).

And again:

<Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. They need not, however, establish that they have reasonable grounds to believe that computers will be found in the place, although they clearly should disclose this if it is the case. I would add here that once a warrant to search computers is obtained, police have the benefit of s. 487(2.1) and (2.2) of the Code, which allows them to search, reproduce and print data that they find.

If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized) and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant> (para. 48-49).

The court, however, rejected a constitutional requirement of search protocols – conditions limiting how computers are to be searched – as part of the warrant. It also was careful to highlight that the requirement for computers only applied to those found during searches with a warrant..

<It is not my intention to create a regime that applies to all computers or cellular telephones that police come across in their investigations, regardless of context. As the respondent correctly points out, police may discover computers in a range of situations and it will not always be appropriate to require specific, prior judicial authorization before they can search those devices.

For example, I do not, by way of these reasons, intend to disturb the law that applies when a computer or cellular phone is searched incident to arrest or where exigent circumstances justify a warrantless search. Rather, these reasons relate to those situations where a warrant is issued for the search of a place and police want to search a computer within that place that they reasonably believe will contain the things for which the search was authorized.

As noted earlier, it is not necessary that the police present reasonable grounds that a computer will be found in order to obtain a warrant that includes authorization to search a computer found in the premises.

While the scope of these reasons is restricted to warranted searches of a place, they apply equally to all computers found within a place with respect to which a search warrant has been issued. Put differently, any time that police intend to search the data stored on a computer found within a place for which a search has been authorized, they require specific authorization to do so.

I find no reason, for the purposes of prior authorization, to treat computers differently on the basis of the particular use to which they have been put. For example, in this case, I make no distinction between the “personal” computer and the “security” computer for the purposes of prior authorization because both were capable of storing personal information. Computers do not distinguish between personal data and non-personal data; if information can be reduced to a series of ones and zeros, it can be stored on any computer.

Moreover, decisions about whether or not to search the data on a device must be made before police know exactly what it contains. Rare will be the case where police know, at the authorization stage before they search a device, whether a computer is used for personal purposes or not. When it comes to authorization, then, I would treat all computers in the same way> (paras. 63-64).

{Exclusion of evidence}

Despite the <s. 8> Charter breaches, the court refused to find the evidence obtained from the personal computer or the cell phone inadmissible under <s. 24(2)>. Vu’s appeal was dismissed and the order setting aside his acquittals and ordering a new trial was upheld.


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