On December 11, 2014, in R v Fearon, the Supreme Court of Canada (“SCC”) considered the circumstances under which police officers can justifiably search a cell phone or other digital device without a warrant. In doing so, the SCC added safeguards to the law concerning search of cell phones incident to arrest in order to make that power compliant with section 8 of the Canadian Charter Rights and Freedoms (“Charter”) which provides that “everyone has the right to be secure against unreasonable search or seizure.”
In R v Fearon the SCC attempts to strike a balance between an individual’s dignity and privacy interests protected by section 8 of the Charter on the one hand and important law enforcement objectives served by searches incidental to arrest on the other, such as the discovery or preservation of evidence and public or police safety as well as the safety of the accused. The SCC decision delineates conditions that police must meet when conducting searches of a cell-phone or other digital device without a warrant during or after arrest.
Mr. Kevin Fearon (“Fearon”) and an accomplice were charged after robbing a jewelry store owner at gunpoint. Fearon and his accomplice approached the store owner, stole several bags; one bag was filled with jewellery. They then fled the scene in a black vehicle. A few hours later, the police arrested Fearon and his accomplice but had not found the stolen jewellry or the handgun used in the offence. After arresting the suspects, one of the officers conducted a pat-down search incident to the arrest of Fearon and discovered a cell phone in his pocket. The phone was not locked and an officer searched the cell phone and found a draft text message and an image of a handgun, both of which were directly relevant to the commission of the offence. At trial, Fearon contested the admissibility of the draft text message and the picture on the basis that warrantless search of the cell phone violated his Charter rights under section 8.
The defence took the position that nothing in the circumstances indicated the cell phone was of any relevance; therefore, it was an unjust infringement of his privacy and evidence obtained from it should be excluded. The Crown argued the handgun in question, or what looked like a handgun in any case, remained on the streets and it was reasonable for the police to assume that there might be information related to the alleged crime on Fearon’s cell phone. There was a sense of urgency in the investigation because no other information on the whereabouts of the weapon was available; furthermore, it is a long-standing principle that police are permitted to search a suspect incident to arrest and their immediate surroundings. As a result, the contents of a cell phone ought to be considered a legitimate part of the search. The trial judge found that “the search of the cell phone incident to arrest had not breached Fearon’s section 8 Charter rights and that the picture and text message were admissible. Fearon was convicted of robbery with a firearm and related offences.”
Given that the cell phone was neither password protected nor locked and that the police officers had grounds for reasonable belief that they might find relevant evidence in it, the Ontario Court of Appeal (“ONCA”) dismissed Fearon’s appeal and confirmed the trial court findings.
In Fearon, the issues before the SCC were whether a cell phone search incident to arrest is unreasonable and therefore contrary to section 8 of the Charter? If so, should the evidence be excluded under section 24(2) of the Charter?
Ultimately, the SCC decided that the initial search was unreasonable and did breach Fearon’s section 8 Charter rights because there was insufficient evidence by officers concerning what was searched, how and why. Despite the SCC finding that the search was unreasonable, the evidence was still admitted as the court found the officers had acted in good faith and it was in the interests of justice to do so. Though the search was unreasonable, the court found the police were acting in good faith because they believed they were acting within their powers; moreover, “when the police later learned of a case that they believed required them to obtain a warrant, they promptly applied for and obtained such a warrant. In doing so, the police made full disclosure of their prior searches of the phone.”
When considering whether it is lawful or even necessary to review the contents of a suspect’s cell phone or digital device, officers should be guided by the following four-part test set out in Fearon when considering whether wireless searches of cell phones or other digital devices will be admissible in evidence. A search will comply with section 8 of the Charter where:
(1) The arrest was lawful;
(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that the reason is objectively reasonable. The valid law enforcement purposes in this context are:
(a) Protecting the police, the accused, or the public;
(b) Preserving evidence; or
(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
(3) The nature and the extent of the search are tailored to the purpose of the search; and
(4) The police take detailed notes of what they have examined on the device and how it was searched.
Carrying out an Effective Search
To ensure evidence obtained by searching a cell phone or device is admissible arresting officers must follow the conditions set out by the SCC in Fearon. The SCC recognized searching cell phones and digital devices is an “an extraordinary search power that requires neither a warrant nor reasonable and probable grounds” and is unequivocal with respect to the “obligation” on officers to keep “careful record of what is searched and how it was searched.” In fact this obligation is a matter of “constitutional imperative.” With that in mind police records should generally include:
i. the applications searched,
ii. the extent of the search,
iii. the time of the search,
iv. its purpose, and
v. its duration.
The SCC concluded that, “after-the-fact judicial review is especially important where, as in the case of searches incident to arrest, there is no prior authorization.” Furthermore, having a clear picture of what was done is more important to the effectiveness of such review. In addition, “the record keeping requirements is likely to have the incidental effect of helping police officers focus on the question of whether their conduct in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.”
Every investigation involving a cell phone or device search will bring about uniquely challenging circumstances; thus, it is prudent to obtain a warrant where reasonably practicable. Doing so, may increase the probability of evidence located on cell phones and other digital devices being found admissible and hence successful prosecution. Fearon makes it clear that courts will look favourably on police conduct that is carried out in good faith and conforms to the four-part test above.
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Thunder Bay, Lawyer