Canada Flag AH

Supreme Court of Canada: Okay For Police To Search Cell Phone Upon Arrest Without Warrant

December 11, 2014 - Written By Cory McNutt

It seems as though there will always be battles in the courts over citizen’s rights, especially when it comes to the police and whether or not evidence is admissible or not in court. When a person was rested in the past, they may only have a wallet on them and it was completely okay for the police to pat down a person for weapons or identification or to go through that purse or wallet without a warrant from the courts. Today, however, we could be carrying our smartphone with pictures, text, emails, recent phone calls and voicemails – is it okay for the police to go through our phone for possible evidence without a warrant? That is exactly what the Canadian courts had to deal with in a recent case and ruling that went all the way to the Supreme Court of Canada…and it turns out the answer is both yes and no.

The court said in its ruling today that they “agree with the Courts of Appeal in British Columbia and Nova Scotia that, generally, the search of the entire contents of a cell phone or a download of its contents is not permitted as a search incident to arrest”. In other words, the police cannot just look at or download the entire contents of an individual’s cell phone – that would be a violation of their privacy. However, in keeping within the scope of the investigation, certain items may be looked at without a warrant, and they went on to say:

“In order to resolve the issue, we must strike a balance between the demands of effective law enforcement and everyone’s right to be free of unreasonable searches and seizures. In short, we must identify the point at which the “public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.  In my view, we can achieve that balance with a rule that permits searches of cell phones incident to arrest, provided that the search — both what is searched and how it is searched— is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.”

As long as those four criteria are met – 1) that the arrest is lawful, 2) the search is “truly incidental” to the arrest, 3) the nature and extent of the search is tailored to its purpose, and 4) the police must take detailed notes of what they examined and how they examined the device – it is lawful and without the need of a warrant. Please hit us up on our Google+ Page and let us know if you are in agreement with the court’s ruling or do you still believe it is a violation of rights…as always, we would love to hear from you.