Police have limited right to search a suspect’s cell phone: Supreme Court

OTTAWA (NEWS1130) – A divided Supreme Court of Canada says the police can conduct a limited search of suspect’s cell phone when they are arrested without getting a search warrant, but they must follow strict rules.

In its precedent-setting, 4-3 ruling, the country’s top court says the search must be done promptly and relate to the arrest, such as looking to preserve evidence or trying to find other suspects.

Police have to keep detailed notes of what was searched — including how and why — otherwise, it will be unlawful. They also have to be prepared to explain why they couldn’t wait for a search warrant to look through your electronic device.

The court has also ruled that password protection isn’t good enough to stop police officers from looking through your phone.

But if a suspect refuses to provide that password, to police have a right to try to crack it? That’s not discussed in the ruling, so it leaves a legal grey area that could prompt future cases.

Three dissenting justices said the police must get a search warrant in all cases except in rare instances where there is a danger to the public or the police, or if evidence could be destroyed.

It is the first time the Supreme Court has ruled on cell phone privacy, an issue that has spawned a series of divergent lower court rulings.

The high court dismissed the appeal of the 2009 armed robbery conviction of Kevin Fearon, who argued unsuccessfully that police violated his rights when they searched his cellphone without a warrant after he’d robbed a jewellery kiosk.

The court agreed that the police had in fact breached Fearon’s charter rights, but the evidence should not be excluded.