By Lala Qadir

The Supreme Court of Canada recently issued a 4-3 decision that gave the police a green light in conducting warrantless searches of an arrestee’s cell phone as long as the search is directly related to the suspected crime and records are kept.  Over three dissenting judges that characterized mobile phones as “intensely personal and uniquely pervasive sphere of privacy,” the majority held a balance can be struck 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.”

Canada’s high court ruling stands in stark contrast to that of the United States.  Earlier this year, the United States Supreme Court heard argument on two cell phone cases—Riley and Wurie—ultimately holding that warrantless searches of cell phones, even when held incident to an arrest, were unconstitutional unless they were subject to specific exceptions to the Fourth Amendment’s warrant requirement.

In Riley v. California, police officers seized Riley’s cell phone after a traffic stop resulted in the discovery of firearms in his car.  The officers searched through Riley’s phone—without first obtaining a warrant—and on the basis of various text messages, videos, and images, arrested him for an unrelated shooting that had taken place weeks prior to the arrest.  In United States v. Wurie, which was decided with Riley in the Supreme Court, police officers arrested Wurie after observing him making a drug sale from a car.  While Wurie was at the police station, his cell phone rang repeatedly from a source identified as “my house” on the phone’s screen.  Also without obtaining a warrant, the officers browsed through the cell phone’s call log and traced the physical address associated with that phone number.  The officers arrived at the residence and secured it while obtaining a search warrant.  Later, upon executing the search warrant, they discovered drugs, firearms, ammunition, and cash.  In both cases, the defendants argued that the cell phone evidence should be suppressed at trial because it was obtained unlawfully.

In a 9-0 decision, the Supreme Court determined these searches were unlawful.  Writing for the majority, Chief Justice Roberts held the searches to be in violation of the Fourth Amendment, noting that modern cell phones “differ in both a quantitative and qualitative sense” from other objects that an arrestee might be carrying and thus “implicate privacy concerns far beyond those implicated by the search of other objects.”

By contrast, in the Canadian case of Kevin Fearon v. Her Majesty the Queen, the Supreme Court of Canada held as permissible the warrantless search of Fearon’s cell phone following his arrest for armed robbery but prior to obtaining a warrant to search his vehicle and personal belongings.  The victim was a merchant who was loading her car with jewelry when she was accosted by two men, one of whom had a handgun.  The police eventually apprehended and arrested these two men and during the pat-down search of Fearon, police found his cell phone and searched it.  They then discovered a draft text message which included the phrase “We did it” as well as a picture of a gun—both of which were introduced as evidence during the trial.   The trial judge did not find there to be an unlawful search of the cell phone incident to the arrest and the Court of Appeal dismissed the appeal.

In affirming this result, the Supreme Court of Canada relied on “the common law power to search incident to a lawful arrest” as permitting the “search of cell phones and similar devices found on the suspect.”  Although recognizing that  a “modification of the existing common law framework is necessary because the search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest,” the Court held these searches to be lawful as long as they met four conditions, namely:  (1) the arrest must be lawful; (2) the search must be truly incidental to arrest; (3) the nature and extent of the search must be tailored to the arrest; and (4) the police must take detailed notes of what they have examined on the device and how they examined it.  Although the majority acknowledged that in the present case the fourth condition was lacking—i.e., detailed evidence about precisely what was searched, how and why—the evidence was not excluded because the “invasion of [Fearon’s] privacy was not particularly grave.”  The dissenting justices, unconvinced by the majority’s deference to the primacy of law enforcement, stressed that individuals “store immense amounts of information” on cell phones and countered that the “most pressing state interests can be accommodated by the existing doctrine that permits warrantless searches under exigent circumstances.”

To be sure, the rapid pace of technological developments—especially given the wide-ranging capabilities of hand-held devices—present unique challenges to the balance between privacy and security.  As such, it is likely that more instances of this nature will make their way into courts and legislatures as societies grapple with how best to adjudicate privacy concerns with the interest of the state in law enforcement.