Contrary to popular belief, the police do not need a search warrant to look through your cell phone if they ever were to arrest you.
This information isn’t exactly new, despite many Canadians being unaware of it. According to Global news, the rules can be broken down as follows:
“We break down what it means for you, according to the R. V. Fearon court ruling, with help from York University’s Osgoode Hall Law School professor Benjamin Berger and University of Ottawa professor Carissima Mathen.
Berger calls it a fascinating technology case that shows a “softening” since rulings in the 1980s about the need for a warrant.
Mathen calls electronic devices “extensions of ourselves.”
“So while there are circumstances in which the police will require access to our property or to some of our devices for really good reasons, the majority decision here authorizes the police to do so really just to assist in their investigation—and that’s, I think, maybe the wrong balance to strike,” she said.
Here are the conditions police must meet to search a cellphone during an arrest without a warrant:
1. The arrest must be lawful – This is the case for any situation; it just means if the arrest isn’t lawful, then neither is the search.2. The search must be incidental to the arrest and police need an “objectively reasonable” reason to conduct the search. These include: protecting police/the accused/the public; preserving evidence; discovering evidence such as finding more suspects.
This criteria means it’s not just that police could discover “some” evidence on the phone, says Berger.
“It’s about discovering some evidence where the investigation would be stymied or significantly hampered, absent the ability to promptly search the cellphone,” he said.
Berger explains the ruling says if police can wait and get a search warrant for the cellphone, it’s best to do that and protect privacy; they would need one of the three purposes above (protecting police or the public, preserving evidence or discovering evidence) to proceed without a warrant.
3. The nature and extent of the search are tailored to the purpose of the search. This means police activity on the phone must be directly linked to the purpose they give.
“If [police] are saying, ‘I’m interested in very recent communications because I think there might have been some communication that’s relevant to this,’ if [they] started going into the search of emails sent years and years ago, then they don’t have something that’s tailored to the purpose of the search,” said Berger.
The ruling states that in practice, “this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.”
Mathen acknowledges the attempt to put rules in place to constrain police power, but says it might not work.
4. Police take detailed notes of what they looked at on the device as well as how it was searched (e.g. which applications or programs they looked at, the extent of search, the time of search, its purpose and duration)
This is the most unique aspect of the ruling, and one that acts as an “accountability mechanism” for the second and third pieces of criteria, says Berger.
Since police have no prior authorization, the detailed notes will allow the arrest to be scrutinized and reviewed after the arrest.”
Being educated and up to date on changes in Canadian law enforcement practice is highly recommended by us at CBLAW. If you or a loved one have been wrongly accused of a crime due to information found on your cell phone by the police, contact us today to have your case evaluated.