Cell Phones and Search Incident to Arrest – Privacy in Peril - Dustin Seguin

What type of authorization are the police provided to search your cell phone upon arrest? In 2014, the Supreme Court of Canada (“the Court”) reached a decision in the case of R v Fearon (“Fearon”) that detailed when police are entitled to search an electronic device incident to arrest and what such a power entitled them to search. A discussion of the police power of search incident to arrest will be briefly discussed and will be followed by a description of the Fearon case. How the Court has expanded search incident to arrest powers will be detailed along with an opinion of the paramount concern surrounding one of the steps in the new test. After determining how this power has been broadened, the vantage point of the dissent in Fearon will be considered. Lastly, an opinion regarding the Court decision and rapidly advancing technology will be provided.

A brief history of search incident to arrest

The police power of search incident to arrest was identified to exist in the case of Cloutier v Langlois. In this case, a traffic stop was conducted by police and Mr. Cloutier was arrested for outstanding traffic tickets. He was “frisk” searched after his arrest by the police at the scene. Mr. Cloutier alleged that he was assaulted by the officer who conducted the search. The Court rejected this allegation and stated that the “frisk search was justified.” In substantiating their decision, the Court reviewed cases from as far back as the 19th century to justify the power of search incidental to arrest.

A gunpoint robbery leads to an issue of search and seizure

In Fearon, a woman was robbed by two men with a firearm while loading jewellery into her vehicle. The two suspects stole the bags of jewellery and fled in a black vehicle. The police investigated the incident and located the alleged robbers. Upon the arrest of Mr. Fearon, officers searched his person and discovered a cell phone incident to arrest. During the search of the cell phone’s contents, while still at the scene of arrest, the police observed a “draft text message referring to jewellery and opening with the words ‘We did it.’ They also found a photo of a handgun”. Two questions that were brought forward to the Court on appeal were whether:

• the search incident to arrest was unreasonable and therefore contrary to section 8 of the Canadian Charter of Rights and Freedoms (“the Charter”)?; and

• if so, the evidence should be excluded under section 24(2) of the Charter?

The Court was required to clarify cell phone searches incident to arrest as lower courts had rendered unclear decisions.

A breach insufficient to exclude evidence

In this case, the Court concluded that “cellphone searches were permissible incident-to-arrest searches, subject to important caveats.” The following four step test was implemented in an attempt to provide clarification:

• the arrest must be lawful;

• the search of a device must be incidental to the arrest and must be for the purpose of safety, preventing the destruction of evidence, or locating new evidence in the case where the investigation would be impacted negatively;

• the “nature and the extent of the search are tailored to the purpose of the search”; and

• detailed notes must be recorded of what and how the device was searched.

In the case of Fearon, the majority of the Court ruled that the police failed to write detailed notes in searching the device and that the Crown failed to establish that the search was lawful. The Court ultimately acknowledged that a section 8 breach had occurred. However, this was not enough to exclude the evidence located on the cell phone. Even though a breach was ruled to have occurred, the Court allowed the evidence under section 24(2).

Insufficient constraints of unlawful searches

The second step in the test set out in Fearon is the most problematic for those subjected to a search incident to arrest. Permitting police to state that their “...investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest” leaves too wide of a door open for searching devices. Deep thought should be given as to who makes the decision of when an investigation will be shackled if a cell phone is not searched. Would the decision be made by the investigating officer, a supervisor, or a commanding officer, and who determines the criteria for an investigation to be considered hampered? This leaves law enforcement with far too much discretion in determining when a device that contains private information which has the ability to cause irreparable harm to human decency can be justifiably searched.

Those in opposition to this opinion may argue that the other steps provided in the test are a means to safeguard against a possible breach and that all steps must be properly addressed for the search to be lawful. This can be countered with the fact that even when evidence is gathered as the result of a section 8 breach, section 24(2) may still prohibit the exclusion of the evidence.

Cell phones as keys to deeply private information

The dissent in Fearon provided a different opinion and one that is more in line with the privacy of personal data stored on cell phones. The dissent recognized the intimate nature of cellphone devices and that they not only store information but also have access to details regarding our “innermost lives”. The standard suggested by the dissent was even higher than those set out in the decision of Hunter v Southam. The Court in Fearon used the analogy of a house key and a cell phone; they stated that, if an individual is arrested and is in possession of a house key, this does not authorize the police to search their residence. In the same way, the police should not have access to the intricacies of data available in a personal electronic device. A cell phone, the dissent stated, “acts like a key or portal” that can provide access to a range of other devices and personal records. The search of a person’s personal cell phone, the dissent warned, “can be even more threatening to our privacy than the search of our homes”. The standard provided by the dissent was raised in a way that acknowledged the extremely private information and data available via cell phones. The dissent also recognized that there may be instances where police would be required to search a cell phone without a warrant; however, this would only be permitted in exigent circumstances that surround an imminent harm to safety or the imminent destruction of evidence.

A decision disconnected from future developments

The majority in Fearon stated that cellphones “are the ‘bread and butter’ of the drug trade, the means by which drugs are marketed on the street”, and that “cell phone searches incidental to arrest may serve important law enforcement objectives”. While this may be true, it demonstrates a dogmatic view in approaching technological innovations that significantly impact the privacy of the majority of citizens who have recently incorporated these devices into their everyday life. Rather than view the technology as a rapid advancement in personal data, the Court's majority in Fearon has decided that the interests of the state override the personal protection of privacy; they assume that the preponderance should bear the consequences of potential evils by some. The relative increase in the capacity of computing power, combined with the rapid integration of technology into the everyday lives of younger generations, has left older generations disconnected from the significant privacy implications of newly enacted search procedures. Technological advances are expanding at an ever increasing and exponential pace; the physical integration of technological devices into the biology of humans may be closer than previously contemplated.

Neuralink, a device surgically implanted into the brain tissue of humans, could potentially re-engineer the brain in a way never previously considered. This device, which is still in developmental stages, could allow the human brain to control mobile and computer devices from any location with simply a thought. How then would the new standard permitted by the Court in Fearon be applied in this instance? Suppose an individual is arrested by the police and has Neuralink installed. Would this entitle police to enter into a Matrix-type reality where the suspect could be ‘plugged’ in and their personal data harvested—all in the interest of public safety? In my opinion, the decision by the majority in Fearon is too short-sighted and does not take into account the intricacies of rapidly advancing technologies. The Court is also slow to change, so, as a warning to readers, if you plan on having a neural device installed, you may want to think twice about coming into contact with the police.