Cellphone searches upon arrest allowed by Canada's top court
Police can search the cellphones of people they arrest under strict conditions, Canada's top court said today.
The Supreme Court of Canada says law enforcement officials can go through the cellphone of someone under arrest as long as the search relates directly to the arrest and police keep detailed notes.
The Supreme Court of Canada split 4-3, with the minority arguing cellphones and personal computers are "an intensely personal and uniquely pervasive sphere" that needs clear protection.
The majority also found that whether someone has protected their phone with a password doesn't carry much weight in assessing that person's expectation of privacy.
"An individual's decision not to password protect his or her cellphone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone," Justice Thomas Cromwell wrote.
Canadian courts have been inconsistent so far in deciding whether police can search the cellphone of someone they're arresting, an issue that raises more privacy issues with the prevalence of smartphones that carry vast amounts of information.
Search done in good faith
In the case of Kevin Fearon, the man who challenged the search of his phone, the court found his rights were violated because police did not take adequate notes on the action, and couldn't say precisely why or how the phone was searched.
Fearon was convicted of armed robbery in a 2009 Toronto jewelry heist. Despite finding the search of his phone wasn't reasonable and breached his rights, the Supreme Court said the search was done in good faith.
The court kept the evidence found in the phone — a photo of a gun and a draft text message referring to jewelry that said "We did it."
Excluding the evidence, the court found, would undermine the truth-seeking function of the justice system. The minority disagreed and would have excluded the evidence because it was unconstitutionally obtained.
The court warned that allowing some narrow searches doesn't give police free rein to go through the phones of everyone they arrest.
"Police officers will not be justified in searching a cellphone or similar device incidental to every arrest," Cromwell wrote.
Further, allowing a narrow search "does not give the police a licence to rummage around in the device at will," he wrote.
"In practice... 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."
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