Almost everyone now carries a cell phone. Pictures and texts the police get from cell phones are now used as evidence in many criminal trials. So, can the police search the cell phone taken from someone who is arrested in Ontario?

The law is uncertain on how far the police can go in searching the cell phone of someone they arrest. A new case from the Ontario Court of Appeal says the police do not need a search warrant to conduct a “cursory search” of a cell phone following an arrest.

The scope of the police power to search cell phones is an important issue. While the contents of a briefcase or wallet are finite, the contents of a cell phone and other electronic devices to story personal information are almost limitless. In addition, a cell phone can continue to provide incriminating evidence after it has been seized because it can transmit and receive messages.

The police can do a cursory examination of a cell phone seized during an arrest

The Ontario Court of Appeal decision in Fearon, 2013 ONCA 106, is the first appellate decision to address whether the police can examine cell phones as a “search incident to arrest” without a search warrant.

The police arrested Mr. Fearon for a robbery committed earlier that day by two men with a gun. The police found a cell phone on Fearon during his arrest. The phone was unlocked and not password protected. The arresting officer explained that in his experience criminals who work in pairs often communicate by cell phone. The arresting officer examined the contents of the cell phone without obtaining a search warrant.  There were incriminating text messages and a photo of a firearm on the phone.

The defence argued that that cell phones contain so much personal information that police need warrants to search them, even if the police lawfully obtain the cell phone during an arrest.

The Court of Appeal ruled that a “cursory” search” of a cell phone, incidental to arrest, was permissible without a warrant.  This was surprising because an earlier Court of Appeal decision in Manley suggested otherwise.

What is a “cursory search” of a cell phone?

What amounts to a “cursory search” is unclear. The Court of Appeal stated that if a cursory examination did not reveal any evidence of a crime, then the search incident to arrest should cease. What does this mean in reality? Can the police open applications? Can the police examine texts and emails? If so, can the police go back weeks or months in examining communications on the phone?This will certainly be the subject of future court cases.

The safes option is for the police to obtain a warrant

The Fearon decision does not mean that the police can simply search the phone of everyone they arrest. The police must have a good reason to believe there will be evidence of the offence for which the accused was arrested on the phone.

The safe course of action is for the police to seek a search warrant to examine the contents of a phone in detail.  Unless, there is an emergency situation where time is of the essence, the police have nothing to lose by waiting for a search warrant. Otherwise, the police risk defence lawyers challenging the search as a violation of the Charter of Rights and Freedoms and getting the evidence thrown out.

Moral of the story: Password your phone

The Court of Appeal ruled that if the cell phone had been password protected or otherwise “locked” to users, it would not have been appropriate for the police to open the cell phone and examine its contents without first obtaining a search warrant.