Although we are all excited to try out the new iPhone 5, Samsung Galaxy S III, or Blackberry 10, few of us think what it means for us to be carrying this enormous amount of information in our pockets.
The Canadian Charter grants the “right to be secure against unreasonable search or seizure,” but one of the main exceptions to this is a search incident to an arrest, which allows a police officer to frisk a person who has been lawfully arrested. This exception exists largely because it has been considered a minimal intrusion on individual rights necessary to ensure the administration of justice.
The power to search incidental to arrest is firmly established at common law. It was never based on any express or specific authority other than the view that the power was a natural or assumed adjunct to the officer’s control over the suspect. This has been attributed in part to the traditional tolerance of intrusive acts upon the person of an arrested individual. In both Anglo-Canadian and American jurisdictions, the power to search incidental to arrest is the largest exception to traditional warrant requirements, whether imposed constitutionally, or as a matter of judicial or legislative reference. The most important justification for the power is the need to prevent suspects from destroying evidence, committing violence, or attempting to escape. Nevertheless, it is not always clear that courts do not see the power as an automatic right following arrest, or rather one that is only justified by additional circumstances.
When officers arrest people today, however, they invariably find smartphones on individuals – devices which carry an enormous amount of information which has previously never been seen in our court systems. The Ontario Court of Appeal recently considered this issue in R v. Fearon, and upheld the admission of evidence of an armed robbery which was obtained from the defendant’s cell phone at the time of the arrest. Stephen Neil has an insightful summary of the case at The Court, and importantly points out,
There was no evidence that the appellant’s cell phone “functioned as a mini-computer” or that the contents of the cell phone were “not immediately visible to the eye” (para 74). Hence, this particular accused’s cell phone was especially exposed to inspection by third parties. The Fearon decision leaves open the possibility that, on similar facts, a police search of a different cell phone (even an unlocked one) may be beyond the scope of the power to search incident to arrest.
The court refused to carve out an exception for cell phones at this time, maintaining the same position as Justice Sharpe in R v. Manley. They did note that at some point in the future the appropriate factual scenario may arise where the police would have to justify their search of a cell phone according to the limits described by Justice Lamer of the Supreme Court in R v. Caslake,
[T]he police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.
The reality is that courts in Ontario remain unsure how to treat the wealth of information found in today’s smartphones. This dilemma is hardly limited to the courts in this province. I just returned today from Los Angeles, where I was judging the Second Annual UCLA Cyber Crimes Moot Court Competition. One of the issues examined in this national event was the search incident to arrest problem for a smartphone, and the case law across the U.S. is just as divided.
The 1973 American case of United States v. Robinson upheld the search incident to arrest doctrine for similar policy reasons as in Canada. The 1981 case of New York v. Belton allowed officers to search any container in the immediate control of the person, and defined a container quite broadly. But what kind of a container is a smartphone, which has an endless amount of information and data contained or accessible from within it?
The United States Supreme Court distinguished Robinson in United States v. Chadwick and did not allow the search of a locked foot locker within a defendant’s car. Does this mean that a password on a smartphone acting as an additional lock should prevent a search incident of the phone? The court in Fearon indicated quite clearly at para. 75 that in Ontario a warrant would then be necessary.
The first circuit court to examine search incident to arrest for a cellphone was in United States v. Finley, where they allowed the search to preserve the evidence. However, subsequent cases have challenged this holding. These cases have cited the vast amounts of information within the modern phone which distinguished it from the traditional container analysis. The defendant in Finley had conceded that the phone was like a container, and so the court did not properly weigh on this issue.
The container controversy was similarly observed by the court in Fearon:
 The appellant argues that until the Superior Court’s decision in Polius, the paradigm for analyzing the warrantless search and seizure of cellular devices incident to arrest was the briefcase and analogous containers such as wallets and purses. The point is made that cell phones are sophisticated devices which have a capacity for storing an infinite variety and amount of personal information in which there is a high expectation of privacy by the owner. The contents of a briefcase, purse or wallet are finite while the contents of a cell phone and other electronic devices are potentially infinite. A cell phone can continue to provide incriminating evidence after it has been seized because of its transmitting ability…
 The respondent argues that placing cell phones in the exceptional category is “overly simplistic and illogical”. The nature of information that may be stored in a cell phone is no different than the kind of information that people carry in tangible form in briefcases, purses or other similar containers. In all of these cases, the potential for discovering highly personal information exists. The fact that there may be more such information in a cell phone ought not to justify the creation of a cell phone exception. The respondent relies on the British Columbia decision in R. v. Giles,  B.C.J. No. 2918 (S.C.) in support of this position.
The Supreme Court of the United States has yet to rule on the issue of search incident to arrest for cell phones, and if the Ontario court’s ruling in Fearon is any indication, we may wait for even longer for clear guidance from our Supreme Court as well.
[note that the Supreme Court of Canada released a decision in R. v. Fearon in 2014, upholding the constitutionality of the search]