Several years ago, two armed men robbed a jewelry merchant of their wares and fled the scene. Shortly thereafter, one of the men, Kevin Fearon, drafted a text that started with the phrase “We did it…”. At some point, he also took some pictures of the handgun, which was used in the robbery. When the police arrested and searched Mr. Fearon, they discovered the cell phone. One of the officers quickly browsed through the phone, which was not password-protected, and discovered the unsent message and photographs. What followed was an elaborate judicial argument, which ended on December 11th, 2014 in the Supreme Court of Canada. Their ruling on the case has been controversial to say the least. The decision passed 4 to 3, showing that even our greatest legal minds were divided on the issue.
The legal system is always striving to adapt to new technology. Modern cell phones are so much more than a means of long-distance communication. They now contain private pictures, agendas, books, magazines, diaries and many other biographical signs of who we are as individuals. Two recent American court rulings unanimously agreed that cell phone searches without a warrant were illegal. As a nation that often prides itself as being more liberal than many other countries, why did our Supreme Court Rule this way?
It begins with the incident itself. When the police officer turned on Mr. Fearon’s phone, it was not password protected. Evidence is generally deemed to be more admissible the less care the accused places in keeping it private. So a journal would be a lot less admissible if it was kept under lock and key, than if the police found it in the garbage of the accused. Additionally, the officer looked only at the main features of the phone, specifically the most recent texts and photos. Had he looked through the phone completely, there would have been a greater intrusion of privacy, and therefore the evidence might not have been admissible.
So what are the new rules regarding a police officer’s right to search? First, the arrest itself must be lawful. An officer needs a legitimate reason to arrest an individual. If the officer arrests you hoping to find credible evidence on your cell phone, then the arrest is not lawful and the cell phone evidence is not admissible. There needs to be some other evidence beforehand, which led to a legal arrest. Second, the search must be incidental to arrest and must be objectively reasonable. This means that the police need to have some valid reason for needing to search the phone without a warrant, due to possible destruction or loss of evidence and the like. Third, the nature of the search must be tailored to its purpose. For example, the police cannot look at old photographs, if they are searching for evidence of a crime that was committed recently. Fourth, the police must keep detailed notes. This is applicable to almost any aspect of a police investigation.
This decision is not without its problems. Many defence lawyers pointed out how slippery of a slope this is and encourage cell phone searches since they can be sorted out and justified after the fact. Time will tell if the Supreme Court will regret this ruling. For more information, you can read the full case on the Supreme Court website.