Mar 26, 2015

Search of Mobile Phone Incident to Arrest

R. v. Fearon, 2014 SCC 77 (CanLII)

R. v. Fearon involved a warrantless search of a mobile phone incident to arrest for armed robbery. The accused was arrested for armed robbery. During the pat-down search of the accused the police found an unlocked mobile phone in the accused’s pocket. The police then searched the mobile phone and found an incriminating photograph and unsent text message. The accused applied to exclude the mobile phone evidence on the basis that the warrantless search violated the accused’s privacy and Charter right against unreasonable search and seizure. The trial judge and the appellate court held that the search was not unreasonable. The accused appealed to the Supreme Court of Canada.

A majority of the Supreme Court of Canada held that the common law police power to conduct a warrantless search incident to a lawful arrest permits the search of mobile phones and similar devices found on the suspect, subject to the following conditions to protect the significant privacy interests at stake in mobile phone searches:  (1) the arrest must be lawful; (2) the search must be truly incidental to the arrest and performed for an objectively reasonable law enforcement purpose - protecting the safety of the police and the public, preserving evidence and discovering evidence in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the phone; (3) the nature and extent of the search must be tailored to the particular arrest for the particular offence (e.g. searching only recently sent or drafted messages, photos and call log, and not a search or download of all data); and (4) the police must make detailed notes of the search (e.g. the app searched, the extent of the search and the time, purpose and duration of the search). The majority held that the same conditions applied, regardless of the nature or capacities of the device and whether or not the mobile device is password-protected. The majority acknowledged that its approach to searches of mobile phones was different from the categorical approach – no warrantless search of mobile phones – recently adopted by the United States Supreme Court in Riley v. California. The majority held that the mobile phone search violated the accused’s rights, because the police did not make detailed notes of the search. The majority held that the evidence obtained through the unlawful search should not be excluded because, in the circumstances, admitting the evidence would not bring the administration of justice into disrepute.

The dissenting minority held that a warrantless search of a mobile device incident to arrest is not lawful except in exigent circumstances – there is a reasonable basis to suspect that a search may prevent an imminent threat to safety, or there are reasonable grounds to believe that the search may prevent the imminent loss or destruction of evidence. The minority noted that the privacy interest in a digital device is quantitatively and qualitatively different from that in other physical items traditionally subject to searches incident to arrest, and that individuals have an extremely high expectation of privacy in their digital devices because they store immense amounts of information, are fastidious record keepers, retain files and data even after users think they have been destroyed, serve as portals to vast stores of information on numerous other devices or storage services and can continue to generate evidence even after they have been seized. The minority reasoned that searches of personal digital devices risk serious encroachments on privacy, and only judicial pre-authorizations can provide an effective and impartial balancing of the state’s law enforcement objectives with the intensely personal and uniquely pervasive privacy interests in digital devices. The minority concluded that police may usually seize a mobile phone incident to arrest in order to preserve the evidence, but they must obtain a warrant before they can search the phone’s contents unless there are exigent circumstances. The minority would have excluded the evidence because admitting the evidence would tend to bring the administration of justice into disrepute.


Excerpted from the Canadian Internet Law Update - 2014 published March 24, 2015. Copyright 2015 Bradley J. Freedman