US Supreme Court Clarifies Law On Warrantless Cell Phone Searches. Will The Supreme Court Of Canada Follow?

Lower courts in both Canada and the US have been deeply divided on the application of their respective Supreme Courts' precedents on whether the police need a warrant to search the contents of a smart/cell phone seized during a lawful arrest. On June 25, 2014, the US Supreme Court unanimously settled US law in Riley v. California, No. 13-132. The court found that privacy interests at stake outweigh any legitimate governmental interest, absent any "exigent circumstances".

The Fourth Amendment of the US Constitution provides protection against unreasonable search. A common law exception to the protection under the Amendment is where the search is incident to a lawful arrest.

The Supreme Court assessed, on the one hand, the degree to which the search is needed to promote legitimate governmental interests and, on the other, the degree to which it intrudes upon an individual's privacy. Writing for the Court, Chief Justice Roberts concluded that the warrantless search of a cell phone, even incident to a lawful arrest, is prima facie unreasonable and, therefore, contravenes the Fourth Amendment for two main reasons:

Digital data does not present any risks to the legitimate governmental interests identified in connection with the exception - the need to protect officers' safety or to preserve evidence; and More substantial privacy interests are at stake in connection with a search of digital data than there are in connection with a search of physical items - the exception traditionally applies to physical items such as wallets or purses. The court points out that privacy interests in connection with data contained on a cell phone are complicated by: The vast storage capacity and the nature of the data stored on the modern cell phone; and The fact that the data a user views on many modern cell phones may not be stored on the device itself. This fact renders inapplicable the analogy of treating the cell phone as a container whose contents may be searched incident to an arrest. The Supreme Court of Canada is set to clarify the Canadian position later this year. The Court heard submissions in Kevin Fearon v. Her Majesty the Queen Docket 35298 on May 23, 2014, on appeal from the Ontario Court of Appeal (2013 ONCA 106).

Section 8 of the Canadian Charter of Rights and Freedoms provides protection against unreasonable search; it, too, allows the common law exception where the search is incident to a lawful arrest.

Canadian cases on the application of the...

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