Supreme Court of Canada Upholds Cellphone Search at Arrest

A 4-3 decision by the country's highest court said the evidence Toronto police found on a robbery suspect's phone, including a photo of a handgun and a draft text message which read in part, "We did it," should not be excluded.

The Supreme Court of Canada has ruled 4-3 in an important privacy case that law enforcement personnel may search the cellphone of someone they have arrested, without needing a search warrant. The 4-3 decision issued Dec. 11 dismisses the appeal of Kevin Fearon, who was convicted of participating in a 2009 robbery after Toronto police searched his cellphone. Fearon challenged the search.

Police who arrested Fearon found a photo of a handgun on his phone and a draft text message which read in part, "We did it." The robbery had been carried out by two men, one of whom carried a handgun, Judge Thomas Cromwell wrote in the majority opinion.

The opinion says Fearon's rights were violated by the search because the police did not take adequate notes detailing precisely what was searched, how, and why, but says despite that, the evidence should not be excluded:

"Although any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests, the invasion of F's privacy was not particularly grave," it states. "Further, as he did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone, his privacy interests were going to be impacted and the particular breach did not significantly change the nature of that impact. . . . In addition, the police fully disclosed the earlier searches when they decided to obtain the warrant to search the cell phone. While the police should, when faced with real uncertainty, choose a course of action that is more respectful of the accused's potential privacy rights, an honest mistake, reasonably made, is not state misconduct that requires the exclusion of evidence. Society's interest in the adjudication of the case on its merits also favours admission: the evidence is cogent and reliable, and its exclusion would undermine the truth seeking function of the justice system."

The three dissenting judges argued a warrantless cellphone search should be allowed only in exigent circumstances, which they defined as: "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 destruction of evidence can be prevented by a warrantless search."

"Tailoring the scope of the common law power to search incident to arrest does not adequately protect the reasonable expectations of privacy in personal digital devices. The majority's proposed modifications generate problems of impracticality, police uncertainty, and increased after-the-fact litigation. And while detailed note-taking may be desirable, it may prove to be an impractical requirement, and it is not an adequate remedy to what would be an extraordinary search power," the dissenting opinion states. "Fundamentally, the police are not in the best position to determine whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a digital device, and, if they are wrong, the subsequent exclusion of the evidence will not remedy the initial privacy violation." It argues that the searches of Fearon's phone "were not justified and unreasonably infringed his privacy," and that the facts of his case "fall far below either standard for exigency."

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