Courts divided on cellphone searches

The Ontario Court of Appeal is considering whether police can search a suspect’s cellphone upon arrest without a warrant in a case that could delve further into the idea that cellphones aren’t akin to briefcases, a lawyer involved in the matter says.

“Traditionally, courts have had this paradigm of viewing cellphones as briefcases when really they are more like digital portals,” says Sam Goldstein, who represented Kevin Fearon in R. v. Fearon last week.

“They function like time machines and could potentially allow a police officer to go back in time or into the future to retrieve personal information. Because of this, there is an expectation that personal privacy should be higher. But you can’t leave it up to the police officers to determine how deep, far back or into the future they should be allowed to go.”

In Fearon, Ontario Court Justice Diane Oleskiw ruled that downloaded images and photographs from Fearon’s cellphone could be admitted into evidence.

Fearon, along with Junior Chapman and Joshua Anang, had been facing a charge of armed robbery and several related offences arising from the gunpoint robbery of a jewelry merchant at the Downsview Park Merchant Market in July 2009, according to Oleskiw’s ruling.

Fearon had applied for an order excluding the photographs and text messages from his cellphone on the basis that the search violated his s. 8 rights under the Charter of Rights and Freedoms. He argued that allowing them would bring the administration of justice into disrepute under s. 24(2) of the Charter.

But Oleskiw ruled otherwise, writing in her decision that because there was a reasonable prospect of securing evidence of the offence connected to the arrest, looking at the contents of the cellphone wouldn’t be a breach of Fearon’s right to be secure against unreasonable search and seizure.

“I want to be clear that I am not suggesting that an officer would be justified in seizing a cellphone and looking at its contents upon every arrest,” Oleskiw wrote in her December 2010 decision in Fearon.

“However, in the circumstances of this particular arrest, I am satisfied that the purpose of the pre-warrant searches was related to the purpose of the arrest and that there was a reasonable prospect of securing evidence of the offence for which the accused was being arrested. The search flowed from the arrest made on reasonable and probable grounds.”

During Fearon’s arrest, a police sergeant advised Fearon he was under investigation due to information police had that may have been related to the incident and information officers had just seized in a vehicle a short distance away.

Following the arrest, the sergeant discovered Fearon’s phone during a pat down. Once he had Fearon’s phone and finished the search, the sergeant looked through the cellphone, saw some “things” on it, and seized it at that point in time as evidence in relation to the investigation. Oleskiw’s ruling notes the sergeant believed he had found “some photos in the cellphone at the time, including photos of males and a photo of a gun.”

Hicks and a fellow police officer then proceeded to look through Fearon’s phone throughout the night for evidence related to the case while he was in custody.

A warrant was later granted on Feb. 9, 2010, to search the contents of Fearon’s cellphone.
According to the Ministry of the Attorney General’s factum in Fearon, Fearon’s cellphone was properly seized and searched according to the “existing, time-worn test” for a valid search incident to arrest because it met the test’s three conditions.
Those conditions include the arrest being lawful, the search not being conducted in an abusive fashion, and it being truly incidental to the arrest.

“The Crown’s position is the confession was properly admitted and the trial judge did not err by admitting the evidence found on the appellant’s cellphone,” said Ministry of the Attorney General spokesman Brendan Crawley.

Goldstein, however, argues otherwise. “The officers involved started rifling through my client’s phone when they had no reason to believe there would be any evidence connecting him to the crime,” says Goldstein. “It was a fishing expedition. Not only did they search his phone upon arrest but they continued to go through his phone for five and a half hours afterward. People don’t realize how brutal the criminal system is until they get caught in it.”

Goldstein adds the appeal court will have to decide where to draw the line in cursory inspections of personal property. “In this case, what the Court of Appeal will have to decide is whether police can conduct a cursory inspection without a warrant. Part of the issue is that courts have always said searches without a warrant are unlawful. You must have judicial authorization, not police authorization. So the court will have to figure out where the line is between individual privacy and the police’s right to solve a crime.”

But this isn’t the first time the courts have spoken on the issue.

Last year, the Ontario Court of Appeal ruled in R. v. Manley that a cursory search of Michael Manley’s cellphone was lawful.

Manley’s cellphone was seized incident to his arrest for a series of break-ins. Police searched the phone to determine where it had come from, but in doing so, found pictures of Manley with a sawed-off shotgun. A sawed-off shotgun had been used in a robbery in which Manley was a suspect.

So far, case law on the subject has been divided with some rulings indicating both minimal limitations on the scope of such searches while others have been stricter. However, the courts have drawn no clear lines as of late.

For his part, Goldstein says a Supreme Court of Canada action may be necessary to bring more clarity to the issue.

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