The SCC rules on warrantless searches of cell phones: Police 1; Privacy 0

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The Supreme Court closed out 2014 with a ruling that has met not without some controversy. In R. v. Fearon, 2015 SCC 77, a bare majority held that the common law police power to search incident upon a lawful arrest survived the Charter‘s protection of the right of privacy, albeit with some limitations as imposed by Justice Cromwell (for the majority). Although the search in this case did not comply with the newly imposed qualifications and was therefore not compliant with the Charter, Justice Cromwell held that the evidence so obtained should not be excluded. The minority, led by Justice Karakatsanis, would have found the warrantless search to be unconstitutional and would have excluded the evidence so obtained. The qualifications to the police power to search incident upon an arrest are not easily and objectively assessed, and the principal criticism levied against them is that it will be difficult for the police to know if they are onside or offside of the constitutional mark.

This is a case, I believe, where bad facts make bad law. In this case, the official headnote summarizes the background facts as follows:

Two men, one armed with a handgun, robbed a merchant as she loaded her car with jewellery. The robbers grabbed some bags, one of which was filled with jewellery, and fled in a black vehicle. The police became involved very shortly afterward. At that point, they had not located the jewellery or the handgun. Later that evening, they located and secured the getaway vehicle, and arrested F and C. During the pat‑down search of F conducted incident to arrest, police found a cell phone in F’s pocket. Police searched the phone at that time and again within less than two hours of the arrest. They found a draft text message which read “We did it were the jewelry at nigga burrrrrrrrrrr”, and some photos, including one of a handgun. A day and a half later, when police had a warrant to search the vehicle, they recovered the handgun used in the robbery and depicted in the photo. Months later, police applied for and were granted a warrant to search the contents of the phone. No new evidence was discovered.

At trial, on a voir dire, the trial judge found that the police had properly exercised their common law power to search upon arrest and that there was no breach of s. 8 of the Charter. The Court of Appeal dismissed the appeal.

Justice Cromwell opened his judgment by outlining the question that the Court had to answer:

[1] The police have a common law power to search incident to a lawful arrest. Does this power permit the search of cell phones and similar devices found on the suspect? That is the main question raised by this appeal.

He reviewed the law respecting the common law power of the police to search incident upon arrest, noting that it is truly an extraordinary power and that it must be truly incidental to the arrest (para. 16):

Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary power in two respects. The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not exist. The cases teach us that the power to search incident to arrest is a focussed power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest.

Justice Cromwell was aware that cell phones, and in particular smart phones, contain huge amounts of personal and private information. He expressly observed in para. 54 that “cell phone searches — especially searches of “smart phones”, which are the functional equivalent of computers — may constitute very significant intrusions of privacy”, he then went on to say that “not every search [of a cell phone] is inevitably a significant intrusion” (para. 54).

He held that, in this case, the search of the cell phone in question was truly incidental to the arrest, a finding that, in my view, was critical to his later analysis and disposition of the case (para. 33):

In my view, the searches of the cell phone that lead to the discovery of the text message and the photos that the Crown introduced as evidence at trial were truly incidental to the arrest. It is clear from the record and the trial judge’s findings that the search was directed at public safety (locating the hand gun), avoiding the loss of evidence (the stolen jewellery) and obtaining evidence of the crime (information linking Mr. Fearon to the robbery and locating potential accomplices).

After analysing the jurisprudence treating the common law power of the police to search cell phones incident upon arrest, he determined that there had to be limits or qualifications imposed to ensure that the search was sufficiently contained and that it could be judicially reviewed for compliance. He summarized these qualifications as follows (para. 83):

[83] To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched.

In this case, because the police had not kept a record of what they searched and when, he found that the search was unreasonable and in breach of the Charter. Nonetheless, he found that the evidence obtained should not be excluded because the police’s behaviour was not “serious state misconduct”, the invasion of the accused’s privacy was not particularly grave and the evidence obtained was cogent and reliable. Justice Cromwell dismissed the appeal with a majority concurring.

Justice Karakatsanis wrote the reasons for the minority. With respect, in my opinion, his reasons are more compelling. The first 6 paragaphs of his reasons bear full reproduction (para. 100-105):

[100] We live in a time of profound technological change and innovation. Developments in mobile communications and computing technology have revolutionized our daily lives. Individuals can, while walking down the street, converse with family on the other side of the world, browse vast stores of human knowledge and information over the Internet, or share a video, photograph or comment about their experiences with a legion of friends and followers.

[101] The devices which give us this freedom also generate immense stores of data about our movements and our lives. Ever-improving GPS technology even allows these devices to track the locations of their owners. Private digital devices record not only our core biographical information but our conversations, photos, browsing interests, purchase records, and leisure pursuits. Our digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. Our digital devices are windows to our inner private lives.

[102] Therefore, as technology changes, our law must also evolve so that modern mobile devices do not become the telescreens of George Orwell’s 1984. In this appeal, we are asked to decide when police officers are entitled to search a mobile phone found in the possession or vicinity of an accused person upon arrest. Because this new technology poses unique threats to peoples’ privacy, we must turn to first principles to determine the appropriate response.

[103] An individual’s right to a private sphere is a hallmark of our free and democratic society. This Court has recognized that privacy is essential to human dignity, to democracy, and to self-determination. Section 8  of the Canadian Charter of Rights and Freedoms  protects the right to be free from unreasonable search and seizure. In defining the contours of a reasonable search, the law balances legitimate state interests, including safety and securing evidence in law enforcement, with the privacy interests of individuals. This balance generally requires judicial pre-authorization for a search, and a warrantless search is prima facie unreasonable.

[104] Nonetheless, our law recognizes that pre-authorization is not always feasible, such as when a search is reasonably necessary to effect an arrest. For this reason, the police have a limited power to search lawfully arrested individuals and their immediate vicinity. However, this police power does not extend to searches which encroach on the arrested person’s most private spheres ― searches of the home, or the taking of bodily samples. In my view, searches of personal digital devices risk similarly serious encroachments on privacy and are therefore not authorized under the common law power to search incident to arrest.

[105] The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device. Our common law already provides flexibility where there are exigent circumstances ― when the safety of the officer or the public is at stake, or when a search is necessary to prevent the destruction of evidence.

In essence, in my view, Justice Karakatsanis has grasped how society uses this technology and the role it plays in the lives of virtually every Canadian. Justice Cromwell and the majority appear to have been swayed by the facts of this case: what is the harm of allowing a search of a cell phone when you find this sort of evidence? Justice Karakatsanis later explains just how cell phones and smart phones shape Canadian society in the context of his discussion of the value of privacy in our constitutional framework (paras. 112-115):

[112] Our Charter jurisprudence recognizes the concept of a “sphere of privacy” to define the proper limits of state authority in a free and democratic society. It recognizes that privacy ― a sphere of protection for private life ― is essential to personal freedom and dignity (see R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 16). Privacy gives us a safe zone in which to explore and develop our identities and our potential both as individuals and as participants in our society.

[113] On our digital devices, we may choose to investigate an idea on the Internet without wishing to attach ourselves to it. We may take pictures in the context of an intimate relationship, but not wish that these pictures be seen by others and redefine our public image. We may debate controversial ideas through text message or email, but not intend to commit to the opinions expressed.

[114] Individuals should be free to choose the audiences with whom they share their ideas, habits, experiments and movements. We should be free to act, think, feel, and ponder outside the public gaze.[1] We should feel free to take actions that may elicit negative reactions, or which may be inherently “incompatible with . . . putting on a public face”: L. Austin, “Privacy and the Question of Technology”, (2003), 22 Law & Phil. 119, at p. 146, citing T. Nagel, “Concealment and Exposure” (1998), 27 Phil. & Publ. Aff. 3, at pp. 18-20. But individuals would fear to do these things if there were no private arena; no place for connections shared only between intimately connected people; no controversial discussion and debate. As Professor Austin argues, at pp. 146-47, we need this private space in order to grow as distinct individuals, and in order to have an “authentic inner life and intimate relationships”.

[115] A private inner life is essential to the autonomous individual that forms the basis of a free and democratic society as envisioned by the Charter. Privacy is a shield for autonomy and freedom, both for their own sake, and because they are prerequisites for our social and political structures.

Justice Karakatsanis amplified his analysis of this point, noting that a search of a smart phone may in fact be even more invasive than a search of a home and that to think that you can restrict or limit your search to “parts” of the smart phone is technologically implausible (paras. 128-134):

[128] First, computers and cell phones store immense amounts of information, some of which will be highly private in nature (Vu, at para. 41). In the case of a cell phone, this will include private communications in the form of texts and emails, potentially dating back years. The data storage capacity of a phone can vastly exceed what an individual could carry on their person or in a briefcase: thousands of pictures, messages, or videos. When combined in sufficient quantities, even individually mundane pieces of information have the potential to reveal aspects of our most private lives.

[129] Second, computers and cell phones are “fastidious record keeper[s]” (Vu, at para. 42). These digital devices can generate records of websites visited, documents read and created, and the details of the uses of almost all programs on the device. Cell phones in particular retain records of messages, both drafted and sent, calls made, and files transmitted and received. The ability of a cell phone to generate an exhaustive record of seemingly trivial aspects of a person’s day-to-day life means that it contains a far more thorough picture of what that person thought, said and did than any conventional form of data storage ever could. Because cell phones record details about so many aspects of our lives that would otherwise disappear, any intrusion into the device compromises our privacy interest in an unprecedented way. Our cell phones, on a daily basis, perform a level of surveillance which can generate and allow access to information ranging from social media communications to personal habits, and from tracked news feeds to medication schedules.

[130] As well, digital devices can retain files and data even after users think they have been destroyed (Vu, at para. 43). This problem may be even more pronounced with respect to cell phones, on which detailed manipulation of background files can be even more challenging for the average user.

[131] Finally, the limitation inherent in searches incident to arrest ― limiting a search to a particular place or item ― is not a meaningful restriction, since modern digital devices are portals to vast stores of information that is not “in” the device, but is instead stored on servers, or on third party devices (Vu, at para. 44). For example, if a user logs in to an Internet browser on both her home computer and on her cell phone, the browser on the cell phone may contain not just a fastidious record of Internet usage on the cell phone, but also on the home computer. Similarly, social media applications may allow the holder of the cell phone to review messages and information generated by the user on other devices. Emails which have never been sent or read from the cell phone may be accessible through email applications (potentially including those sent many years ago). Files which have never been opened or created on the cell phone may be accessible through applications that allow the user to store files remotely. Moreover, someone examining the device may not be able to identify what is stored remotely.

[132] In short, the cell phone acts like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices. It is not just the device itself and the information it has generated, but the gamut of (often intensely) personal data accessible via the device that gives rise to the significant and unique privacy interests in digital devices. The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home. In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm. Indeed, personal digital devices are becoming as ubiquitous as the house key. Increasingly large numbers of people carry such devices with them everywhere they go (be they cell phones, mobile computers, smart watches, smart glasses, or tablets).

[133] Cell phones and other wireless communications devices can continue to generate evidence even after they have been seized. The cell phone can continue to receive calls, text messages and emails even when out of the owner’s control. Some of the concerns associated with searches of desktop computers identified in Vu ― that the computer can generate information unknown to the user and that such information is difficult to delete ― are magnified with phones that can generate and record that information when out of the owner’s hands and without her knowledge. This information, along with many of the records on the phone, will also implicate the privacy interests of third parties who sent the communications, collaborated in their creation, or have given the owner access to their files.

[134] Thus, like the search of a private home, a strip search or the seizure of bodily samples, the search of the portal to our digital existence is invasive and impacts major privacy interests. The privacy interest in a cell phone or other digital communication and storage device is extremely high. The ability of these devices to generate, store, process, communicate and share truly massive quantities of deeply private information explains their usefulness and the way in which they have revolutionized modern society. At the same time, these impressive capacities underlie the necessity for rigorous protection of users’ privacy. The incredible and unique power of modern digital communications devices as portals to vast stores of information ― and their ability to expose our private lives ― means that they can be even more threatening to our privacy than the search of our homes.

Justice Karakatsanis concluded that it would be a rare day indeed when he would consider that a warrantless search of a cell phone was justified. He was of the view that there would rarely be circumstances when the exigencies of safety, preservation of evidence and discovery of evidence would outstrip the need for a warrant, especially when in today’s world a telewarrant is available (paras. 137-138):

[137] I conclude that, while searching a cell phone will often be very useful for law enforcement, it will be an exceptional case where a warrantless search will be justified on that basis. In my view, the most pressing state interests can be accommodated by the existing doctrine that permits warrantless searches under exigent circumstances ― when (1) there is a reasonable basis to suspect a search may prevent an imminent threat to safety or (2) there are reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by a warrantless search. (I will discuss the doctrine of exigent circumstances in greater detail below.)

[138] Where exigent circumstances do not exist, a telewarrant can usually be obtained relatively quickly and with little harm to the investigation. Excluding cell phones from the power to search incident to arrest does not necessarily mean they cannot be searched. Rather, it means that police officers will have to seek a warrant to do so from a judicial officer who will ensure that individuals’ privacy is appropriately safeguarded.

He found, therefore, that the police search here breached the accused’s privacy rights and would exclude the evidence.

I have reproduced much of Justice Karakatsanis’ reasoning respecting the qualitatively different nature of the technology in question. The Courts must understand that this technology, like the Internet, is changing the very underpinnings of our society. In my view, Justice Karakatsanis showed that he “gets it”. At some point, the law and the judiciary interpreting it must catch up to the iRevolution that is transforming our society, our country and the world.

I remain

Constitutionally yours

Arthur Grant

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