When is it okay for the police to conduct a warrantless search of a cell phone when making an arrest? The short answer, according to the Canadian Supreme Court’s decision in R. v. Fearon (2014 SCC 77) is “sometimes”. But, beyond that, I’m really only sure about a couple of things. First, there is no reason to worry that the police are about to start searching everyone’s mobile device. Second, the law can be incomprehensible and impractical at times.
Background
Back in 2009 a woman was robbed at gun point while she was closing up a jewellery stand at a Toronto flea market. The two men made off with several thousands of dollars’ worth of jewelry. A witness was able to recall the license plate number of the getaway car, which helped the police track down the men within a few hours.
The men were arrested, following which an officer seized a cell phone he found in suspect Kevin Fearon’s pocket during a pat down. All very good police work so far, but this is where things started to get interesting. The officers proceeded to “flip open” the phone and look through it, finding a photo of a male, another photo of a gun and a draft text message that was interpreted to indicate that a jewelry robbery had been successfully completed. The information was helpful in finding the handgun, identifying and apprehending a third accomplice and obtaining a conviction at trial.
At trial, Fearon claimed that the cell phone search violated his right under section 8 of the Charter of Rights and Freedoms to be protected from unreasonable search or seizure and that the evidence should not be admitted in court. The trial judge rejected those arguments and the evidence was admitted. Then the Ontario Court of Appeal decided in favour of admitting the evidence, and so did the Supreme Court, by a margin of 4-3.
The new test for warrantless searches of cell phones
It is well established law that the police have the power to search a person incident to arrest. For example, it is common for the police to search a person who has been arrested and seize anything in the person’s possession to protect safety, prevent an escape, or to acquire evidence. Thus, there is no dispute that the police officer acted lawfully when he seized Fearon’s cell phone.
The more difficult question is if and when a warrantless search of the information on a cell phone is reasonable. After reviewing a number of decisions on warrantless cell phone searches, the court rejected arguments that the police should only be able to search when they have “reasonable and probable grounds” to believe that evidence would be found on the phone, or under “exigent circumstances”. Either of these standards, according to the court, would set the bar too high, only allowing for searches in exceptional circumstances.
So the court decided on the following four-part test:
1) The arrest must be lawful
2) The search must be truly incidental to the arrest
3) The nature and extent of the search must be tailored to its purpose
4) The police must take detailed notices of why and how they examined the device
This appears fairly simple in concept, but once you start to unpack these individual components and look at the conditions on top of the conditions, it becomes more complex. For example, in order for the search to be “truly incidental”, it must serve law enforcement purposes, which includes protecting the police, the accused or the public; preserving evidence, and discovering evidence if the investigation will be “stymied” or “significantly hampered.” According to the court, the power to search must be used with “great circumspection,” and the police must be prepared to explain why it was not practical (but not impossible) to postpone the search until a warrant could be obtained.
Then, the search must be “tailored”, meaning that a police officer must only look at things on the phone that are relevant for the purposes for the search. As noted in the dissenting opinion, cell phones contain a mess of highly personal information in many forms, relevant and irrelevant information being highly intertwined. This is kind of like telling someone to look at a forest but only see the maple trees.
Finally, police officers must take detailed notes about what they examined on the phone and why. Detailed notes? Really? If I were a police officer, the cynic in me would say, “take detailed notes so that the lawyers and judges can spend hundreds of hours arguing over whether you got this right.”
In short, it will be challenging for any experienced trial lawyer or judge to apply this test with the benefit of hindsight and time, let alone a police officer trying to make a quick decision in the middle of an arrest.
This is why I like the dissenting opinion. I do not claim that it is the more accurate elucidation of the nebulous principles of law (I am a mere mortal), but its appeal lies in its simplicity: seize the phone, then get a warrant to search its contents. Don’t worry about taking detailed notes or having to go all the way back to the Supreme Court for a conviction. This is what I would probably follow if I was a police officer.
Is this really a big deal?
The entire court agreed on the extreme importance of protecting personal information on cell phones and other devices. And despite the majority’s opinion that the police should be able to conduct warrantless searches in some circumstances, it in no way authorizes the police to randomly stop people and search their mobile devices.
On a very practical level, if the cell phone seized by the police had been password-protected, we wouldn’t be talking about this case in the first place. As we see so often, Fearon is yet another example of how the courts move much more slowly than technology. Way back in 2009, when people still had “flip phones,” passwords were just beginning to become common on cell phones. Now, in the smartphone age, it is rare to find a phone that does not auto-lock to a password protected state. So, until the police find a way to easily access a password-protected device, it seems less and less likely that a search during an arrest will even be possible. This may be frustrating for the police, but at least they will not have to worry about trying to apply the Supreme Court’s guidelines.