R. v. Fearon: Limited Warrantless Search of Cell Phones Permitted

Today, the Supreme Court of Canada released its decision in the R. v. Fearon case pertaining to the legality of cell phones searches by the police.

Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery. The robbers grabbed some bags and fled in a vehicle. Shortly, the police became involved, located the vehicle, and arrested two individuals including Fearon. During the pat‑down search of Fearon, the police found a cell phone in his pocket and searched the phone. They found a draft text message which read “We did it were the jewelry at nigga burrrrrrrrrrr”, and some photos, including one of a handgun. A day and a half later, the police obtained a search warrant for the vehicle. They recovered the handgun depicted in the cell phone photo and used in the robbery.

On a voir dire, the trial judge found that the search of the cell phone incident to arrest had not breached s. 8 of the Canadian Charter (unreasonable search or seizure). The  photos and text message were therefore admissible evidence. Fearon was convicted of robbery with a firearm and related offences. The Court of appeal dismissed an appeal.

The SCC Decision

In a 4-3 decision, the Supreme Court concluded that a limited search of an individual’s cell phone under the police’s “search incident to a lawful arrest powers” was permitted. The Majority Decision advocated for setting “meaningful limits” on cell phone searches incident to arrest. For these searches, the police must limit the scope of the search, the purposes of the search, and keep detailed notes of what they searched on the phone and why such a search was required as being incident to arrest.

With regards to the scope of the search, justice Cromwell, for the Majority (McLachlin C.J. and Cromwell, Moldaver and Wagner JJ), stated:

[76] First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why: see para. 25.

The Dissent (LeBel, Abella and Karakatsanis JJ.) warned against creating an Orwellian state and argued that cell phone searches should be afforded a high degree of privacy and argued that a warrant would be required to search a person’s phone or other personal digital device, even as part of a search incident to arrest, except in exigent circumstances, such as when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence (para. 105). Because, in this case, the police had no grounds to suspect there was an imminent threat to safety and no grounds to believe there was an imminent risk of the destruction of evidence, the dissent concluded that the search was unreasonable and unconstitutional (para. 106).

Expectation of Privacy in Cell Phones

The Majority affirmed the notion that searching the entire contents of a cell phone is equivalent to searching a computer and that such search triggers considerable privacy interests. However, the Majority also articulated the view that a targeted cell phone search would not always trigger these extreme privacy interests (para. 54). Another interesting point is that the Majority stated that the fact that a cell phone is not password-protected should not affect an individual’s expectation of privacy in the contents of his/her cell phone (para. 53):

An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone.

Although the Majority permitted the warrantless search of Fearon’s cell phone, both the Majority and the Dissent highlighted the privacy interests that may be implicated in cell-phone searches and agreed that a search of a cell phone triggers significant privacy interests. Unless a cell phone search is “incident to the arrest”, such a search would most likely require a warrant. The challenge at this point will be for the police to carefully determine exactly what type of search is in fact “incident” to a lawful arrest.

This content has been updated on December 11, 2014 at 21 h 05 min.