Canadian Supreme Court Says No Warrants Needed To Search Arrestees' Cell Phones

Privacy

from the bucking-a-trend? dept

The US Supreme Court recently ruled — despite panicky DOJ arguments otherwise — that cell phones are unlike someone’s pant pockets or little black book and can’t be simply searched incident to arrest just because the arrestee (like nearly every American) happens to have one on their person. The decision noted that the capability and capacity of modern cell phones makes them incomparable to other items cited in previous decisions on warrantless searches.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy…. Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.

This description of today’s smartphones is universal. The leap in technological capability and storage capacity should give any judicial system pause when considering law enforcement’s general assertion that they should be able to fully search anything carried by an arrestee. Unfortunately, Canada’s Supreme Court has weighed the same factors and arrived at the opposite conclusion. (via Reason)

In a crime ruling that earned it rare praise from the federal government, the Supreme Court of Canada said police may search cellphones without a warrant when they make an arrest.

Much like in the US, the impetus for warrantless searches is (and has been for quite some time) the eternal War on Drugs.

Cellphones are the bread and butter of the drug trade, the majority said in a 4-3 ruling. It said police have been given the “extraordinary power” to do warrantless searches during an arrest, under common-law rules developed by judges over centuries, because of the importance of prompt police investigations.

“Prompt police investigations” that apparently would be derailed by the “rigors” of warrant approval. These words would carry more weight if the warrant approval process wasn’t generally the epitome of ease and efficiency. This also seems to ignore a crucial aspect of the issue under discussion: the arrestees affected are detained, along with all their belongings, until law enforcement decides to free them. There’s plenty of time to obtain a warrant because the person and his/her cell phone aren’t going anywhere. (Not to mention the fact that cell phones are the “bread and butter” of pretty much everybody, not just those in the drug trade.)

The majority echoed law enforcement’s narrative of forever being behind the technological curve.

“Prompt access by law enforcement to the contents of a cellphone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed,” Justice Thomas Cromwell wrote for the majority, joined by Chief Justice Beverley McLachlin and Justices Richard Wagner and Michael Moldaver.

Law enforcement personnel act as though every arrestee’s cell phone contains a self-destruct switch, even though there’s been very little evidence produced that even suggests this is a common occurrence. Even if true, there are ways of circumventing this while obtaining a warrant. What law enforcement agencies really want (but never say in so many words) is the opportunity to image a phone’s contents without a warrant — something that gives them access to far more data and communications than any warrantless search performed previous to the ubiquity of smartphones. Because of this, rules should be stricter, not looser.

But the majority decision ignores this, handing out a small list of stipulations that will do next to nothing to prevent abuse.

The majority said the search must be tailored to its purpose, which will generally mean that only recent e-mails, texts, photos and the call log will be available.

Define “recent.” Somebody needs to because the decision does not. It simply says that only “recent” documents should be accessed. Once again, the court defers to the judgement of law enforcement officials to follow the (loose) guidelines and only access what it’s permitted to… whatever that time period actually is. It could be two weeks. It could be two months. It could be everything on the phone because it’s only six months old.

This stipulation narrows things down a bit, but still leaves it in the hands of officers to perform warrantless searches in accordance with the spirit of the ruling. (Because the letter of the ruling doesn’t actually exist.)

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.

Again, this is a deferral to law enforcement. The decision simply asks officers to be honest about searches and record everything accessed. Like many rulings of this type, there is no deterrent, only a handful of post facto remedies to be pursued at the violated person’s expense. At best, all someone can hope for is that evidence will be excluded without an extended legal battle. But that’s a very slim hope. Even in the case being addressed here, the Supreme Court declared the search violated the appellant’s rights, but still refused to exclude the evidence.

The only bright spot of the majority’s decision — which is at odds with last year’s Supreme Court decision stating that additional warrants were required to search computers and cell phones found on searched premises — is the following, as highlighted by Michael Geist:

I pause here for a moment to note that some courts have suggested that the protection s. 8 affords to individuals in the context of cell phone searches varies depending on whether an individual’s phone is password-protected. I would not give this factor very much weight in assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable. An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone. Cell phones – locked or unlocked – engage significant privacy interests.

So, at least there’s that — the instruction that just because someone doesn’t take active measures to protect their phone’s contents from others isn’t an implicit suggestion that law enforcement officers are welcome to page through phones at their leisure. Of course, the lack of a warrant requirement does that for them, just so long as they remember to only look at “recent” stuff when searching an arrestee’s phone. And there’s a certain amount of incongruity in demanding a warrant for a cell phone found at someone’s home, rather than for the one found in their pocket.

A warrant requirement is far from onerous, especially considering the wealth of information contained in most smartphones. A warrant requirement is nothing more than a nod to the changing times. People carry personal computers in their pockets and the court needs to recognize that the old rules are no longer applicable. If you can’t search a person’s computers, personal files and other items without one, you shouldn’t be able to do so just because these all reside in someone’s pockets. As it stands now, Canada’s Supreme Court stands in the awkward position of demanding warrants for access to ISP subscriber info, but not for an arrestee’s cell phone contents.

Filed Under: canada, cell phones, mobile phones, privacy, searches, warrants