The Case of Fearon: Police Given the Green Light to Search a Phone if not Password Protected.
On February 20, 2013 the Ontario Court of Appeal released the decision of R. v. Fearon, 2013 ONCA 106 that explored the common law right of police to search incident to arrest. In this particular case it dealt squarely with the issue of how far police may legally go in searching the contents of a cellular phone seized from a suspect without the need to obtain judicial authorization, i.e. a search warrant. The case also addressed some issues surrounding the statement, 10(b) rights, and voluntariness; however, of the purposes of this article it will not be explored as that area of law is relatively well settled.
In this case, Mr. Fearon’s cellular phone contained incriminating messages and photos including the photographs of a gun and money, as well as a text message which read: “We did it were the jewlery at nigga burrrrrrrrr”. Needless to say, this was not a preferable piece of evidence to have considered at trial. The defence sought exclusion of the evidence on the basis that police do not have the right to search incident to arrest in the manner they did. In order to access the photographs and text messages in this case, police were required to simply scroll through the messages and photos. The phone was not password protected. As an aside, and in a rather pathetic twist of irony, the damning text message was only a “draft” and the braggadocio effect was all for vain with the exception of the benefits it had for police. The police further searched for phone calls and photos in case they were also connected.
Police testified that they thought at the time it was acceptable as a matter of law to search in this manner without the need for any sort of warrant. Police further testified that the use of cell phones was common in the course of robberies and it was important to obtain further information that may assist further in the investigation as it relates to co-accused and similar leads. A warrant was ultimately obtained well after the fact and the phone was reexamined. That ex post-facto warrant was not challenged at trial.
The Law on Searching Cell Phones Incident to Arrest
The Court of Appeal wrote, in relation to cell phone searches and the common law right to search that the right so search incident to arrest has its limits and cited the Supreme Court of Canada case of R. v. Caslake,
Since the legality of the arrest was not challenged, the Court only addressed two issues as it related to the cell phone: 1) “was the belief of the police that an examination of the cell phone would yield evidence of the robbery reasonable?” and 2) “did the search of the contents of the cell phone go beyond the permissible limits of a search incident to arrest?”
Since the judge reasonably believed that an examination of the phone would yield evidence, they were entitled to considerable deference and the Court did not interfere with that finding for reasons amplified in the judgment. The second question then remained. The appellant argued that police were entitled to no more than a “cursory” examination of the contents of the phone and ought to have applied for a search warrant. The Intervenors, the Canadian Civil Liberties Association, went further still and argued they police were not permitted to search the phone in any manner without a warrant.
How Far Can Police Go In Searching A Cell Phone?
The Court of Appeal found that in the present case, and the specific facts that applied, the common law search of incident to arrest did apply and the search of the cell phone without a warrant was lawful. Factors leading to this decision including that a) the phone was turned on, b) was not password protected, c) not “locked”, d) that police had a reasonable belief that they might photos and text messages relevant to the robbery, and e) the initial search was a cursory search to ascertain whether the phone contained such information.
What is more difficult to asses on whether a search is reasonable, even for the Court of Appeal, was whether the subsequent searches (beyond the cursory search of an unlocked cell phone turned on for photos and texts) was lawful. The Court of Appeal stated that “arguably, those examinations went beyond the limits for a search incident to arrest” and referenced Caslake, at para. 25.
The Court of Appeal held that
“In my view, the proper course for the police was to stop the examination of the contents of the cell phone when they took the appellant to the police station and then proceed to obtain a search warrant. […] there was no urgency to search through the cell phone. There is no evidence that it would have been impracticable to appear before a justice to obtain a search warrant in the usual manner. If it was impracticable for an officer to appear before a justice to obtain a search warrant, the police could have proceeded to obtain a telewarrant under s. 487.1 of the Criminal Code.”
A Fact-Driven Analysis Makes it Easier When the Phone is Not Password Protected
Notwithstanding, the Court deferred to the trial judge’s findings that these searches too were connected to the search and to the scene despite the passage of time and upheld the conviction. It is questionable, however, whether identical searches would be tolerated in the future in light of the statements set out in this judgment.
The Court of Appeal was also asked to consider clarifying this rather unsettled area of law regarding the search of cell phones. However, the Court refused to carve out a specific rule or procedures as it relates to cell phones. Although the Court recognized the highly personal and sensitive nature of the contents of cell phone and the high expectation of privacy they carry with them, it does not justify a generalized exception to the common law rule of searching them incident to arrest. This is to be a factually determined issue dependent on the circumstances of the individual case. Factors that militated against the appellant in the present case included: a) it was not passwords protected or locked, and, b) the police had a reasonable belief it would afford evidence to the crime. This therefore justified police actions under the common law rule of “search incident to arrest”. In comparison however, the Court did find that “If a cursory examination did not reveal any such evidence, then at that point the search incident to arrest should have ceased.”
Therefore, the current state of the law on searching incident to arrest of cell phones seems to be that a cursory search, and one that is not hindered by passwords or locks, is permitted, but anything beyond that ought to be subject to a warrant. The Court made it clear, at paragraph 75, that
“If the cell phone had been password protected or otherwise “locked” to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant.”