Cell phones are not just telephones these days. Smart phones in
particular can contain a wealth of personal information including,
not only the telephone numbers of those you have called, but
pictures, direct links to your social media sites, text messages,
GPS information as to where you have been and much more. But if
that smart phone is not locked or password protected, the police
may be able to look through it, without a warrant, as a search
incidental to an arrest.
The Ontario Court of Appeal, in R. v.
Fearon 213 ONCA 106 recently ruled on just such a case.
Mr. Fearon was arrested shortly after a robbery, with a gun, of a
jewelry sales lady in Toronto. Upon arrest, the police conducted a
pat down search and found his cell phone. The cell phone was not
locked or otherwise password protected and the officer proceeded to
look through it, checked the text messages and found an
incriminating message as well as photographs of a gun and cash.
The issue at trial, and subsequently before the Court of Appeal
was to whether the evidence that had been obtained from the cell
phone at the time of arrest ought to be excluded because the search
of the phone was a breach of Mr. Fearon's 8 rights under the Charter. Both the
trial judge and the Court of Appeal determined that if the search
of the cell phone otherwise met the criteria of search incidental
to arrest, and the phone was not locked or otherwise password
protected, that the police were within their rights to conduct a
cursory search of the phone at the time of arrest. In this case
there were reasonable and probable grounds to arrest Mr. Fearon and
that the police had a right to search him at the time of the arrest
and take anything from him that they reasonably believed might
constitute relevant evidence. The phone was turned on and not
A warrantless search of a cell phone, incidental to arrest,
must, however, be limited to a "cursory" examination,
presumably limited to a look through the contents to ascertain if
it contains evidence relevant to the offence for which the
individual has been arrested. A detailed search, or following links
to social media sites would require a warrant. If the phone is
locked or password protected, a warrant is needed to access the
contents of the telephone. Readers interested in this case may also
want to review the decision of the Court of Appeal in R. v. Manley 2011 ONCA
128 and the decision of the Ontario Superior Court in R. v.
Polius  O.J. No. 3074
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