C-phones and arrest
If you’ve just been arrested, can police search your cell phone?
The Supreme Court recently considered this issue and answered the question with a qualified “yes.”
The court considered the case of Kevin Fearon, who had been arrested following an armed robbery by two men in July 2009. The robbers escaped in a car with a bag of jewellery. A few hours later, police arrested two suspects but did not find the handgun or jewels. An officer found a cell phone in Mr. Fearon’s pocket during a frisk search at the time of arrest. On the phone, he found a photo of a gun. Later that evening another officer found a text message, apparently unsent: “We did it.”
Loaded Smith and Wesson
Police located the getaway vehicle which they searched after getting a search warrant. The search turned up a loaded Smith and Wesson semi-automatic handgun. At trial, the judge found that it was the one had been used in the robbery and was the one in the cell-phone photo.
The case raised two questions: did the cell-phone search violate Mr. Fearon’s Section 8 constitutional right against unreasonable search and seizure? (The trial judge held that it did it not.) And if it did, should the evidence found as a result of the search, be excluded. (The trial judge found that even if the right had been breached, the evidence should not be excluded.)
The main question was the proper scope of the common law power to search incident to arrest. Unlike searches authorized by a warrant, searches incident to arrest do not require prior judicial authorization and can be conducted even where grounds to obtain a warrant might not exist. An extraordinary power, it allows police to search the individual and his or her immediate surroundings.
Search must be “truly incidental” to arrest
A search incident to arrest must be founded on a lawful arrest, be truly incidental to that arrest and be conducted reasonably.
Searches incident to arrest are designed to locate objects that could threaten the safety of the police, the accused or the public; preserve evidence from destruction by the accused or others; and discover evidence. This is the justification for a frisk search or pat-down search.
The search must be “truly incidental” to the arrest. In other words, “police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted, and the officer conducting the search must reasonably believe that this purpose may be served by the search,” the court said. “This is not a standard of reasonable and probable grounds, but simply a requirement that there be some reasonable basis for doing what the police did.”
Important to locate gun
The court found that police reasonably believed the cell phone might contain evidence of the robbery. The search of Mr. Fearon’s cell phone, the court held, was “truly incidental to the arrest” as it “was directed at public safety (locating the hand gun), avoiding the loss of evidence (the jewellery) and obtaining evidence of the crime (information linking Mr. Fearon to the robbery and locating possible accomplices).”
The court observed that it was important to locate the gun before it could be used again and the jewellery before it could be disposed of or hidden.
To protect privacy, the court established criteria for cell-phone searches.
Police not given carte blanche
First, the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. Generally, therefore, even when a cell phone search is permitted, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those items will have the necessary link to the purposes for which prompt examination of the device is permitted. Police are not being given carte blanche to rummage through the device.
The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences.
Detailed police notes required
Discovering evidence as a justification for search incident to arrest must be treated restrictively, the court said. A cell-phone search will have a valid law-enforcement objective only where the investigation will be stymied or significantly hampered without it. For example, in this case, a cell-phone search was justified to try and locate the weapon used in committing the offence, the stolen jewels and additional suspects. If all suspects, firearms and stolen property had been recovered, a cell-phone search would have served no immediate investigative purpose.
Finally, the court held that police must make detailed notes of the applications searched, the extent of the search, the time of the search, and its purpose and duration. A clear picture of what was done is important to enable subsequent judicial review.
In this case, such notes were lacking, impeding meaningful judicial review. As a result, the court found that Mr. Fearon’s Section 8 right had been breached. However, the court did not toss out the evidence as, among other things, it found that since such searches were generally condoned by the courts at the time, police had acted in good faith. In addition, the court noted that the evidence found in the search would have been uncovered in any event in the search that was carried out later once police had obtained a warrant.
Legal gray area calls for caution
Although it was letting the horse out of the barn, the majority stated: “Of course, the police cannot choose the least onerous path whenever there is a gray area in the law. In general, faced with real uncertainty, the police should err on the side of caution by choosing a course of action that is more respectful of the accused’s potential privacy rights.”
Police should not balance rights
In a vigorous dissent, three justices stated that the majority unnecessarily left the balancing between the right to privacy and law enforcement needs in the hands of the police.
The minority observed that the jurisprudence to date shows that the law enforcement interests in ensuring safety, preserving evidence, and gathering evidence on arrest generally outweigh the privacy interest that an arrested person has in the physical items in his immediate vicinity, thus justifying a search incident to arrest.
However, the privacy interest in cell phones and other digital devices is quantitatively and qualitatively different from that in other physical items traditionally subject to such searches.
Cell phones are different
First, cell phones can store immense amounts of information, some of which will be highly private. Second, computers and cell phones record a huge slice of our daily activities: websites visited, documents read and created, and details of the uses of almost all programs on the device.
Cell phones retain records of messages, both drafted and sent, calls made, and files transmitted and received. Digital devices can retain files and data even after users think they have been destroyed. Finally, the limitation inherent in searches incident to arrest ― limiting a search to a particular place or item ― is not a meaningful restriction since modern digital devices are portals to vast stores of information that is not “in” the device, but is instead stored on servers or on third party devices.
(The majority acknowledged that cell phones, like computers, may have immense storage capacity and may contain deeply personal information about the user. But characterizing as “minimal” the privacy invasion in this case where police merely looked at an unsent text message and gun photo, the court noted that “not every search is inevitably a significant intrusion.”)
Cell phones like a house key
Cell-phone records, the minority noted, also may implicate the privacy interests of third parties who sent communications found on the device or who have given the owner access to their files.
The minority compared the cell phone to a key allowing the user to access the “full treasure trove of records and files that the owner has generated or used on any number of devices….The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home. In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm.”
The minority noted that the heightened privacy interest in a place or a piece of information may tilt the balance in favour of protecting privacy and preclude a search incident to arrest. Thus, it has been held that the heightened privacy interest in the home weighs against warrantless arrests in dwelling houses. Likewise, police cannot seize bodily samples including hair samples and teeth impressions incident to arrest.
Exigent circumstances should apply
“The incredible and unique power of modern digital communications devices as portals to vast stores of information ― and their ability to expose our private lives ― means that they can be even more threatening to our privacy than the search of our homes.”
“Like the search of the body and of the home, the warrantless search of personal digital devices as an incident of arrest is not proportionate to our privacy interests.”
The minority held that the appropriate balance between valid law enforcement objectives and protection of privacy can be achieved by allowing police to search cell phones if exigent circumstances exist. Hence, a search would be justified if police reasonably suspect that it’s necessary to prevent an imminent threat to safety (e.g., where an accused has summoned backup).
The minority observed that “the mere possibility that a phone could have been used to summon backup does not justify a search incident to arrest any more than the theoretical possibility that the suspect’s home could contain accomplices justifies a search of the home.”
In addition, a search would be justified where there are reasonable grounds to believe it’s necessary to prevent the loss or destruction of evidence. (A lower standard applies for exigency to protect safety (reasonable suspicion) than to preserve evidence (reasonable belief). In all other cases, police can seize the cell phone and get a warrant in order to search it. The Ontario Telewarrant Centre operates 24/7 to ensure it’s always possible to get a warrant.
In contrast, in Riley vs. State of California, the U.S. Supreme Court held in July 2014, in a nearly unanimous opinion, that police may not examine the digital contents of an arrestee’s cell phone as part of a search incident to arrest.