News

Ontario Court of Appeal Permits Warrantless Search of Cellphone Without Password Protection

In a surprising and troubling decision, the Ontario Court of Appeal has permitted a police search of a cellphone that was not password protected or locked during the course of an arrest.  The court found that the police had a reasonable belief that the phone might contain relevant evidence and it was acceptable to undertake a “cursory” examination of the contents of the phone. The court noted that “if the cell phone had been password protected or otherwise ‘locked’ to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant.” 

The decision raises serious concerns given the increasingly blurry line between smartphones and personal computers (the court found that this particular phone was not a “mini-computer”) and the suggestion that the contents on a phone without password protection is “readily available to others.” Canadians are surely entitled to expect that the contents on a private cellphone – whether locked or unlocked – are private and that police access to the content should require a warrant.

19 Comments

  1. Troubling I think not
    What’s troubling is that people don’t lock their phones. The police are just one party out of millions. There’s no reason to be even remotely interested in what they can do with your phone given the orders of magnitude more risk of losing a phone or having your SIM cloned entail.

    If people took even a modest amount of ownership and understood the responsibility to safeguard their information and devices rests with them, we wouldn’t have the hand-waving ‘the police are overstepping their bounds because they did what was reasonable given the circumstances’ response everyone is trotting out based on this ruling.

    The original ruling was very clear:

    “To date, there is no clear binding jurisprudence that would have directed the police to treat the cell phone in any way other than they did upon arrest.” – http://canlii.ca/t/2f869

    So given that the Ontario courts have avoided any decision one way or the other, locking your phone makes this a non-issue.

    Again, the police are irrelevant – if you lock your phone as you should do as a best practice anyway, then the proper legal channels must be used. Done, non-issue.

  2. This decision is only “surprising” if you don’t follow the case law on this issue, as several other provinces have had rulings affirming this authority of the police, such as the BC Supreme Court. See R v. Mann (2012) BCSC.
    R v. Franko (2012) ABQB
    R v. Howell (2011) NSSC
    R v. Giles (2007) BCSC

    And it is only “troubling” if you believe that the long standing authority of police to conduct a search for evidence of the offence, incidental to arrest, should be neutered for some reason in the 21st Century.

    Obviously your professional bias is towards civil liberties and privacy rights über Alles, just as mine is towards allowing the police sufficient tools and flexibility to conduct efficient, productive investigations, but I don’t think, given the context of common-law search powers, that this ruling is out of line.

  3. RE: Troubling I think not
    Locking your phone is only to give you a false sense of security. Unless your phone has the capability to wipe data remotely (like blackberry BES, not sure others), if somebody finds your phone, it is just a matter of time until they crack your password. A 4 letter/digit password can be cracked in 30 min or less, depending how powerful the computer is.

    Smartphones are probably the least secure devices, so keeping confidential/sensible data there is not a good advice, whether password-protected or not.

    As somebody said, if somebody wants your data, they’ll get it, no matter what you do.

    This ruling goes far beyond than locking phones. This is invation to privacy. Not locking a phone does not equal to my-phone-is-public-to-everyone. It is very disturbing.

  4. Straw men and fishermen
    The first comment above is a straw man argument. So what if I ‘should’ lock my phone? That should not give the police any more right to search it than if I also left my home unlocked too. What I should or should not do is irrelevant to where the boundaries of police power should be.

    The second comment is as troubling as the court decision.

    “And it is only “troubling” if you believe that the long standing authority of police to conduct a search for evidence of the offence, incidental to arrest, should be neutered for some reason in the 21st Century.”

    The writer suggests that it is acceptable for the police to arrest you first, then look for evidence for the arrest after. And without a warrant. It matters not what century it is. If they really have sufficient cause to arrest you first, then getting a warrant after the arrest should be trivial, and at the same time protects my rights against police fishing expeditions.

  5. Darryl, forget about the police entirely for a moment and consider the risks of carrying an unlocked phone with information on it that you consider private. If you are only concerned that the police might do something untoward with it, then you are being willfully blind to the other 34 million people who might be able to compromise your phone and use your personal information for whatever means, and not within the bounds of a legally bounded investigation.

    Hand waving at the the police obscures the real underlying problem – which is that the entitlement (the article’s word, not mine) that people seem to have when it comes to anything related to ‘information’ has no corresponding awareness of one’s personal responsibility for the protection of their information.

    Again, the police aren’t the bad ones here, lack of understanding of the implications of owning a device and generating personal and private information with it are. Change that and you don’t have to police the police.

  6. JJ: “Locking your phone is only to give you a false sense of security.”

    You make valid points, but they are irrelevant to this case. This ruling implies that locking your phone DOES give additional security, in the sense that police will need a warrant to search it. And if they need a warrant to search it, they’ll also need that warrant to crack it, even if it’s locked with a passcode of ’1234′.

    Darryl: “The first comment above is a straw man argument. So what if I ‘should’ lock my phone? That should not give the police any more right to search it than if I also left my home unlocked too.”

    This argument is also a straw man. Do you happen to carry your home in your back pocket while committing crimes? No. But you probably do carry your wallet there. And police are often, even if not always, allowed to leaf through it without a warrant after you’ve been arrested.

  7. “The writer suggests that it is acceptable for the police to arrest you first, then look for evidence for the arrest after. And without a warrant. It matters not what century it is. If they really have sufficient cause to arrest you first, then getting a warrant after the arrest should be trivial, and at the same time protects my rights against police fishing expeditions. ”

    The above quotation shows a complete lack of knowledge of police powers of arrest and powers of search.

    A search incident to arrest is only lawful if the arrest that led to it was lawful. Therefore no, police cannot simply arrest you arbitrarily for no reason and then look for evidence after the fact. If the arrest was unlawful, the search was also unlawful, and the results of the search will be throw out. This is criminal law 101 stuff, Darryl.

    An arrest requires reasonable and probable grounds to believe the offence has been committed by the person arrested. This is obviously not the standard for a conviction, therefore, post-arrest, police still have to search for evidence. This does not mean that just because the police are still looking for evidence post-arrest, that the police did not have grounds for the arrest in the first place.

  8. So if I don’t lock my front door
    the cops don’t need a warrant to search my home?

  9. Seems a Lot Of Right-Wing Authoritarian Supporters Here
    Good point, Grunt! Precedence is everything.

    And I wonder what law firm “none” works for?

  10. Except not really.

    Because, you see, a house is *different* than a cell phone. And as such, is treated *differently* than a cell phone.

    The ruling is in line with the existing police powers of search incidental to arrest. An arrested person can have a phone (or a notebook, or a wallet, etc.) in their pocket when arrested, and as such it can be searched if the police can articulate a reason connecting the search with the reason for the arrest.

    If you don’t have any knowledge of the context regarding common-law powers of search incident to arrest, you just sound silly, spouting off such ridiculous analogies. The expectation of privacy for one’s home is an order of magnitude greater than the expectation of privacy for the cell phone in one’s pocket when one is arrested. It is not an insignificant distinction, no matter how much snark and derision one puts into one’s one liners.

  11. a house is *different* than a cell phone is true but not the point I was clearly making
    I guess you didn’t read the full post Cst, let me highlight the relevant bit for you:

    “permitted a police search of a cellphone that was not —->password protected or locked

  12. Repost, arrow thing screwed it up
    I guess you didn’t read the full post Cst, let me highlight the relevant bit for you:
    !
    “permitted a police search of a cellphone that was not !password protected or locked! (DID YOU SEE THAT PART? RE-READ IT) during the course of an arrest.

    So what the judge seems to be saying is that the very legal nature of the cellphone changes if I lock it. Unlocked cops can do as they please, locked they cannot.

    This does not apply to a house or anything else that I am aware of so I am wondering why it would apply here. If the judge said “No privacy for cellphones” than fine, whatever. But privacy for cellphones that are locked and no privacy for cellphones that are unlocked? That makes no sense at all, in both cases they are still cell phones with the exact same data. What if my phone has no password feature? What if I had no idea it had one? So then suddenly I have fewer rights than someone with a better phone and more knowledge of its features?

    So now do you understand my point? I’m not sure if I can make it any simpler.

  13. One key difference between a locked and unlocked cell phone is that the first reveals an intention on the part of a user to secure their data. The other does not. If a person is unaware of the locking features of a phone and is content to carry around a bunch of incriminating evidence available to anyone who gains access to their pockets (or, what is far more likely: anyone who finds their phone after they lose it), that is a risk assumed voluntarily by that person. That person has a choice not to carry around openly-accessible incriminating evidence. But they didn’t. And the state shouldn’t need to nanny them into not being stupid.

  14. @Matlock
    No, that’s not how the law works, either a cell phone needs a warrant or it does not, it being locked or unlocked does not change the intrinsic nature of what it is. Your argument then can apply to a home or anything else the cops need permission to search. If someone doesn’t lock their door that means they have no intention to secure their home to be private and the cops can walk right in?

    It’s nothing to do with being “stupid” or “nanny” anything, it’s the law and if it isn’t applied equally then there is a problem.

  15. Autolock
    And this is one of the reasons why both my tablet and phone auto lock when I tap the power button.

    The police should be required to get a warrant to search a computer.

  16. “No, that’s not how the law works, either a cell phone needs a warrant or it does not, it being locked or unlocked does not change the intrinsic nature of what it is.”

    No, that’s not how the law works. The issue here isn’t whether cell phones can be searched or not, where a search is lawfully permitted, they can be. This case is about the extent of the common-law power of a police officer to search incidental to an arrest. When a person is lawfully arrested, what they are carrying (or things they possess within a reasonable distance, say inside the same car for example) is subject to search by the police for weapons, escape tools and evidence of the offense for which they are being arrested. The power is extremely limited, so the police can’t arrest you, seize your car, and search it two weeks later incidental to arrest.

    This is a search, not a seizure of evidence. If evidence is located, the police will seize it. What the ruling establishes is that the search power is limited to a cursory check of the phone and/or its contents. They can’t check the phone, find out its locked and send it to the IT lab to be extracted without a warrant.

    The main difference between a phone (or computer, digital camera, etc) and less technical personal property (say a handgun, or 8-ball of coke) is that the phone may contain evidence of an offence, but that is not apparent from an examination of the surface of the item (unless it’s stolen). If you are arrested for drug offences, and you have a corner of a chip bag full of white powder, the police can seize the powder as evidence and send it to the lab (after filing a 5.2 report to justice) because it is reasonably believed to be evidence of an offense found during a lawful search.

    If a phone is discovered, and they have reason to believe that evidence will be contained in it (for some reason, people feel a need to photograph themselves with stolen goods, drugs and firearms, I have no idea why this is), they may examine it during the incidental search, but if that does not reveal evidence, they are not entitled to send it for further technical analysis without a warrant. The legal nature of the phone does not changed by being locked, the police may casually examine it as far as it will permit. With either a locked or unlocked phone, the police will require a warrant to send it off for further analysis (deleted contents, etc).

  17. @Ubique
    That all makes sense, thanks but:

    >casually examine it as far as it will permit.

    That’s pretty broad, my phone could be searched “casually” for hours from my web browser to emails to notes to text messages etc. Cops could go on all kinds of “fishing” trips. It’s also uneven, locked my phone is protected from legal search unlocked it isn’t. Does that thinking apply to anything else?

    Seems to me that a warrant should be required locked or unlocked.

  18. @Grunt
    I highly recommend reading the judge’s decision, as it goes over the details and mentions other related cases brought up by the defense, the prosecution and the interveners.

    You asked if that reasoning applies to anything else, and they mention that it applies to briefcases, for example. If someone is arrested while carrying a briefcase, the police can look through it if it is unlocked, but needs to get a warrant before searching it if it is locked, for example.

    In the case of a cellphone, the cursory search has to be quite fast. One case that was brought up involved someone who was arrested on suspicion of stealing a phone, and the police had a look at the phone in order to determine what the number was and tell if it was stolen or not.

    And it appears that the phone in question is indeed a cell phone, and not a smart phone, so it does not seem to have browsing capabilities.

    But again, I highly recommend reading the decision (linked above).

  19. Phones are definately mini computers. To say they are not is simply wrong regardless of what you are trying to justify.