Should police be able to seize cell phones to see what is inside them?                           

Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery.  The robbers grabbed some bags, one of which was filled with jewellery and then they fled in a black vehicle.  The police became involved very shortly afterward. At that point, they had not located the jewellery or the handgun.  Later that evening, they located and secured the getaway vehicle and subsequently arrested the two men.  During the pat‑down search of one of the men that was conducted by the police that was incident to the arrest, the police found a cell phone in the man’s pocket. Police immediately searched the phone at that time and again within less than two hours of the arrest. They found a draft text message which read with respect to the robbery, “We did it.” Further, some photos were also found in the cell phone including one of a handgun.  A day and a half later, when police had a warrant to search the vehicle, they recovered the handgun used in the robbery and depicted in the photo.  Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.

                   

Let me say from the get go, in my opinion, the police should have applied for the warrant before the first looked for messages in the cellphone.

On a voir dire, (initial examination before a judge) the trial judge found that the search of the cell phone incident to the arrest had not actually breached section 8 of the Canadian Charter of Rights and Freedoms.  She therefore admitted the photos and text message as evidence and convicted one of the men of robbery with a firearm and related offences.  He appealed her decision and the Court of Appeal dismissed his appeal. He then appealed to the Supreme Court of Canada. 

                                                           

Three of the justices (judges) of the Supreme Court stated that searches of personal digital devices including personal computers risk serious encroachments on privacy and are therefore are not authorized under the common law (decisions of judges) power to search the cellphone incident to the arrest. They said that only judicial pre-authorization (search warrant) can provide the effective and impartial balancing of the state’s law enforcement objectives with the intensely personal and uniquely pervasive privacy interests in our digital devices. Section 8  of the Charter provides constitutional protection for privacy, which includes the right to be free of the threat of unreasonable intrusions on privacy and the right to determine when, how, and to what extent we release personal information.

The three justices were of the opinion that just because a suspect that the police have arrested has his house key in his possession doesn’t mean that the police can then enter his house with that key in hand without first obtaining a search warrant.

My concern is what would happen if a citizen was video-taping the police wrongfully assaulting a suspect and then when the police seeing him doing this, grab the citizen’s cell phone, look at what he just video-taped and then accidentally erase the images from his cell phone. The three justices continued to agree that…….

“Generally, the law enforcement interests will outweigh the privacy interest that an arrested person has in the physical items in his immediate vicinity. However, because the privacy interest in a digital device is quantitatively and qualitatively different from that in other physical items traditionally subject to such searches, the constitutional balance between privacy and the needs of law enforcement with respect to the search of cell phones and similar digital devices incident to arrest must be reassessed.

 “A cell phone cannot be treated like any other piece of physical evidence that may be found on an arrestee and searched incident to arrest. (Admittedly) individuals have a high expectation of privacy in their digital devices because they store immense amounts of information, are fastidious record keepers, retain files and data even after users think they have been destroyed, make the temporal and territorial limitations on a search incident to arrest meaningless, and can continue to generate evidence even after they have been seized.

The law enforcement interests relate to the three purposes justifying searches incident to arrest:  safety, the preservation of evidence, and the discovery of evidence. Digital devices are not physically dangerous weapons and as such, they cannot conceal such a weapon. The mere possibility that a phone could have been used to summon backup or that evidence on the cell phone could be remotely deleted should not justify a search incident to arrest.  Although the delay of obtaining a warrant may come at a cost to the prompt pursuit of the investigation, this cost must be weighed against the privacy interest in a personal digital device.

The most pressing state interests can be accommodated by the existing doctrine that permits warrantless searches under exigent circumstances. Exigent circumstances exist when (1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety or (2) there are reasonable grounds to believe that the imminent destruction of evidence can be prevented by a warrantless search. Where exigent circumstances do not exist, a telewarrant (one that is faxed) can usually be obtained relatively quickly and with little harm to the investigation.

Thus, the weighty privacy interest that an arrested person has in a personal digital device will outweigh the state’s interest in performing a warrantless search incident to arrest, except in exigent circumstances. (such as seizing the cell phone of a terrorist)

“Searches that treat a cell phone merely as a physical object continue to be permissible incident to arrest since it is the information that attracts a heightened expectation of privacy. As such, the police may usually seize a phone incident to arrest in order to preserve the evidence, but will require a warrant before they can search its contents. (That seems like the appropriate way to deal with this kind of situation)

“In performing a search of a cell phone, whether under exigent circumstances or pursuant to a warrant, the police officers must not extend that search beyond the scope of the grounds permitting the search.” (That means that whatever the police find beyond what the warrant permits, even if it is damming to the suspect. it cannot be used against the suspect at his trial) unquote

Although the common law power to search incident to arrest is deeply rooted in our law in Canada, it is an extraordinary power in two respects.  The power to search incident to an arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not even exist.  The previous decisions teach us that the power to search incident to arrest is a focused power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest.

In other words, if the police arrest the suspect for robbery and while looking through his cell phone messages, they discover that he is part of a terrorist organization, they can’t use that information as the basis of a charge of terrorism against him. They can however use that information as a means of investigating those in the terrorist organization to whom he was communicating with. 

The Supreme Court held, in a previous case that a ‘frisk’ search incidental to a lawful arrest reconciles the public’s interest in the effective and safe enforcement of the law and its interest in ensuring the freedom and dignity of individuals. The search “must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety or the police, the accused or the public, or that may facilitate an escape of the suspect or act as evidence that can be used against the accused. 

According to the three justices in the Supreme Court who disagreed with the majority of the justices (four of them); a search warrant would be needed before any information in the cell phone that could be used against the suspect at his trial as evidence of the robbery he was arrested for.  

The majority of the court (4 justices) concluded that……

“Despite that breach, the evidence should not be excluded.  The impact of the breach on the accused’s Charter‑protected interests favours exclusion of the evidence, but it does so weakly.  Although any search of any cell phone has the potential to be a very significant invasion of a person’s informational privacy interests, the invasion of the accuseds privacy was not particularly grave.  Further, as he did not challenge the warrant that was subsequently issued for the comprehensive search of the cell phone, his privacy interests were going to be impacted and the particular breach did not significantly change the nature of that impact.  

“However, there are other factors that favour inclusion (of the information in the cell phone).  As to the seriousness of the Charter‑infringing state conduct, the dominant view at the time of the search approved cell phone searches incident to arrest.  In addition, the police fully disclosed the earlier searches when they decided to obtain the warrant to search the cell phone.  While the police should, when faced with real uncertainty, choose a course of action that is more respectful of the accused’s potential privacy rights, an honest mistake, reasonably made, is not state misconduct that requires the exclusion of evidence.  Society’s interest in the adjudication of the case on its merits also favours admission (of the evidence found in the cell phone) as the evidence is cogent and reliable, and its exclusion would undermine the truth‑seeking function of the justice system.”

The accused’s appeal was dismissed.

What this decision really means that although there are instances when evidence of a crime found during an arrest an arrest and/or a search may be in conflict with the rights of an accused, there are times when the police can act in a manner that is in conflict with the Charter of Rights and Freedoms if the actions of the police are in the best interests of society.  Section 1 of the Charter says that governments (including the police and the courts) may limit Charter rights so long as those limits are ones that a free and democratic society would accept as reasonable.