During the course of an arrest, can the police look at the contents of the suspect’s cellphone without a specific warrant to do so? Apparently, in the absence of password protection, and in the context of a cursory examination incident to arrest, they can.
Ontario’s Court of Appeal has released a decision this week (R. v. Fearon) that has received significant attention, particularly by those interested in information governance and privacy issues.
In this case, the suspect was patted down during the course of an arrest for armed robbery. The police officer found Mr. Fearon’s cellphone on his person, and found it was not password protected. An examination of its contents found incriminating photographs and a text message.
The issue was whether the police had the right to examine the cellphone in the absence of a search warrant.
The Court found it significant in this case that the phone was not password protected or locked in a fashion to restrict access solely to the user. It also accepted that the police had a reasonable belief that the phone would contain relevant evidence. However, the scope of the decision was not unlimited: the Court held that if the initial cursory examination of the phone did not yield any relevant evidence, the search should have been discontinued. Further, if the phone had been password protected or locked, a search warrant would have been required.
Ultimately, the Court declined to specifically set out a cellphone exception for search during arrest, but it did leave open the possibility that a future case would lead to such an exception.