Posted by Matt on January 20, 2014 Tagged with: searches
So on Friday, the Supreme Court of the United States agreed to hear two cases involving police officers searching a suspect's cell phone without a warrant:
Both of the new cases on cellphone privacy involve the authority of police, who do not have a search warrant, to examine the data that is stored on a cellphone taken from a suspect at the time of arrest. The two cases span the advance in technology of cellphones: the government case, Wurie, involves the kind of device that is now considered old-fashioned — the simple flip phone. The Riley case involves the more sophisticated type of device, which functions literally as a hand-held computer, capable of containing a great deal more personal information.
When police arrest a suspect, they're allowed to do a physical search of the suspect. This is known as a search incident to arrest. These searches serve a number of purposes, including protecting the police officers involved and preventing contraband from making it's way into jails. The question SCOTUS will be addressing is: if, during the course of such a search the police find a cell phone, do they also have the authority to search the contents of the phone or do they need to get a warrant?
Different US courts have reached different conclusions on whether police can search a suspect's cell phone without a warrant, as this handy map from Forbes shows. So the hope is that SCOTUS will set a nationwide standard. Of course, this issue comes up in Canada as well, and there's been at least two recent Canadian cases on warrantless searches of cellphones.
Last November, I blogged about R. v. Vu, the case in which the Supreme Court of Canada stated that a warrant to search a home does not implicitly give police permission to search any computers or cell phones found in the home. Such permission would have to be explicitly spelled out in the warrant. If necessary, during the course of executing the warrant police can seize computers and cell phones and seek a warrant to search them later.
R. v. Vu dealt with a slightly different question than the one SCOTUS will be dealing with. It was concerned with the scope of search warrants, not the scope of searches incident to arrest. The latter question has never been considered by the SCC. Fortunately for this blog post, it was considered last February by the Ontario Court of Appeal in R. v. Fearon. In that case, ONCA decided that the police can search a phone incident to arrest if they believe it contains relevant evidence and if the phone is not locked. Of course, this decision isn't binding on courts outside of Ontario, but as the only one of it's kind, it's probably very persuasive. I would expect other provincial courts to follow it's lead.
But of course, as privacy conscious individuals, your phone IS locked? Right?