Mar 18, 2014

Summary of R. v. Cater

R. v. Cater, 2012 NSPC 2 (CanLII)
Although the police intended to arrest the accused for weapons offences at a later time and not as part of a large 'take down' operation, the decision was made to arrest him sooner after further wiretap evidence was reviewed. Before any arrests had been made, it had been decided that any cellphones found would be searched. The accused's phone was not tampered with until it was taken to the technology lab, as the police did not want to risk damaging any evidence it contained. The accused challenged the validity of the search, in part, on the basis that the arrest was unlawful. The phone was not a 'smart phone', but a fairly simple device and was not password-protected.The evidence gathered from the phone is admissible; there was no violation of the accused's s. 8 rights. The officer's subjective belief in the accused's arrestability for weapons possession was objectively reasonable, as were the inferences drawn from the intercepts; the initial search and seizure of the phone while the accused was being processed qualified as a search incidental to arrest and the later forensic analysis of the phone was also incidental to arrest and conducted reasonably. Although a cursory search of the cell phone, incident to arrest, would have been permissible, such a search would have risked the loss of, or damage to, valuable evidence and to require a search warrant in order to access information contained in the phone but no search warrant to justify examining the contents by scrolling through the various options would mean that the necessity of obtaining a warrant would turn solely on whether the police chose to follow best practices in dealing with a phone's potential evidence. An elevated expectation of privacy might be established if there was a password on the phone.