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Privacy rights Police can search unprotected cellphone without warrant


Privacy rights: Police can search unprotected cellphone

without warrant, appeal court rules


The Court of Appeal for Ontario has ruled that if a cell phone is not password-protected, police making an arrest can search it without a warrant.

On Wednesday, Justice Robert Armstrong, supported by two other judges, dismissed an appeal of an armed robbery conviction by Kevin Fearon, who argued his rights against unreasonable search had been breached.  After his arrest on suspicion of taking part in a Downsview jewellery heist in 2009, a police officer conducted a pat-down search and found a cell phone in his pocket. After manipulating the phone, police officers found it contained photographs of a gun and cash as well as an incriminating text message.  The police officers involved believed they had a right to inspect the phone without a warrant.

Fearon challenged the warrantless search of his cell phone, which was not protected by a password, claiming it breached his Privacy rights.  But the court ruled Wednesday his privacy rights were not breached. Had the phone been password-protected or otherwise locked to outside users, however, police would have needed a search warrant to examine its contents. “While I appreciate the highly personal and sensitive nature of the contents of a cell phone and the high expectation of privacy rights that they may attract, I am of the view that it is difficult to generalize and create an exception based on the facts of this case,” Armstrong wrote.

The case generated much interest in the legal community. The Canadian Civil Liberties Association intervened, arguing phones should not be searched at all after an arrest, absent urgent circumstances. Association of Ontario took a similar position but would permit the police to make a cursory search of the phone to determine if it contained relevant evidence.

Susan Chapman, who argued on behalf of the Criminal Lawyers’ Association, said the court didn’t consider the seriously private nature of cell phones. “Text messaging is basically the equivalent of a modern wire tap. The court really understated the expectation of privacy rights that Canadians have in their cell phones,” she said.

Lawyer, Sam Goldstein, argued the court should carve out a cell phone exception to the legal doctrine that allows searches incidental to arrest. Phones are more like digital portals than briefcases, and the expectations of privacy rights should be higher, he has said. Goldstein said Wednesday the lesson to be taken from this ruling is to make sure your phone is password-protected if you want to prevent police from searching it without a warrant.  Goldstein is considering seeking leave to appeal from the Supreme Court of Canada, he said.

By: Peter Small City Courts reporter, Published on Wed Feb 20 2013

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