Police don’t need warrants to search cellphones

No Search Warrant Needed in Canada

Government attacks on your privacy know no boundaries.

Police do not need a search warrant before looking at the contents of a suspect’s cellphone as part of an arrest, as long as they meet certain conditions, including taking detailed notes on how they searched and what they found, the Supreme Court of Canada ruled on Thursday.

A court that has repeatedly objected to the Conservative government’s tough crime laws spoke up this time for police powers and public safety, taking a sharply different approach than the United States Supreme Court, which last summer told police they need a warrant to search cellphones as part of an arrest.

The Canadian court split 4-3 in this major test of privacy in the digital age. Under common law rules developed by judges over centuries, police have the right during an arrest to search an individual’s handbag, purse or briefcase for evidence related to the crime he or she is suspected of committing or for weapons. The question was whether cellphones or other digital devices, because they may contain a vast amount of personal information, are an exception to those rules reports The Globe and Mail.

Kevin Fearon was suspected in an armed robbery of a jewelery kiosk at a Toronto flea market in 2009. When he was arrested, a police officer found a cellphone on him and, finding no password protection, looked quickly through texts and photographs. He found a message saying “We did it,” and he found a picture of a handgun. Mr. Fearon admitted to the robbery but said that he had used a fake gun, and that police had no right to search his cellphone. He was convicted of armed robbery, and the Ontario Court of Appeal upheld the conviction, but said that if the cellphone’s contents had been protected by a password, the search would have been illegal.

The Supreme Court majority cited the importance of prompt police investigations. Cellphones “are the ‘bread and butter’ of the drug trade and the means by which drugs are marketed on the street,” Justice Thomas Cromwell wrote for the majority, citing a previous ruling. He was joined by Chief Justice Beverley McLachlin and Justices Richard Wagner and Michael Moldaver.

The minority said that cellphones are different than purses or briefcases, and deserve special treatment under the Constitution.

“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,” Justice Andromache Karakatsanis wrote . . .