The Supreme Court just released their decision in R. v. Fearon, about whether police can search a person’s cell phone when they arrest the person. The Court found (in a 4-3 decision) that, in general, police can do such a search, as long as they follow certain conditions:
Four conditions must be met in order for the search of a cell phone or similar device incidental to arrest to comply with section 8 of the Charter:
- First, the arrest must be lawful.
- Second, the search must be truly incidental to the arrest. This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes. In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence.
- Third, the nature and the extent of the search must be tailored to its purpose. In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.
- Finally, the police must take detailed notes of what they have examined on the device and how they examined it. The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. The record‑keeping requirement is important to the effectiveness of after‑the‑fact judicial review. It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.
Beyond that, in this particular case, it seems to get a little complicated. They find that the police did not meet all of these conditions – there was no evidence about precisely what was searched and why — so there was a breach of the defendant’s s. 8 rights. However, as a remedy of that breach, the Court found that the reasons to include the evidence (despite the breach) outweighed the reasons to exclude it. An example of the Court’s reasoning on this point (emphasis added):
 Of course, the police cannot choose the least onerous path whenever there is a gray area in the law. In general, faced with real uncertainty, the police should err on the side of caution by choosing a course of action that is more respectful of the accused’s potential privacy rights. But here, if the police faced a gray area, it was a very light shade of gray, and they had good reason to believe, as they did, that what they were doing was perfectly legal.
The decision was 4-3. The dissenting justices basically made a privacy argument:
[T]he weighty privacy interest that an arrested person has in a personal digital device will outweigh the state interest in performing a warrantless search incident to arrest, except in exigent circumstances…. Here, the searches of F’s phone were not justified and unreasonably infringed his privacy, in violation of s. 8 of the Charter . The facts of this case fall far below either standard for exigency…. The evidence which was unconstitutionally obtained should be excluded.