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

In R. v. Fearon, the Ontario Court of Appeal (OCA) has affirmed that if a cellphone is not password protected, a warrant is not necessary to search the cellphone. Mr. Fearon was convicted of robbery based on an incriminating text message located on his cellphone. Upon his arrest, a police officer manipulated Mr. Fearon’s cellphone to review its contents and found the incriminating text message. At the police station, police officers also reviewed photographs, recent calls and contacts. Six months later, a search warrant was obtained because an officer on the case believed that there was a court case that held that a search warrant was necessary to download the contents of a cellphone. Mr. Fearon argued that his right against unreasonable search and seizure under section 8 of the Charter of Rights and Freedoms was violated. To exclude any evidence obtained from the cellphone, Mr. Fearon sought to establish an exception to a search incident to arrest on the basis that a cellphone owner has a high expectation of privacy. At trial, the trial judge held that the cellphone searches upon arrest and at the police station were a lawful search incident to arrest. The trial judge also ruled that there was no expectation of privacy in a cellphone The OCA agreed with the trial judge that the search of the cellphone upon arrest was conducted in a cursory fashion within the limits of a search incident to arrest. The OCA also rejected the argument that Mr. Fearon’s cellphone functioned as a mini-computer:

[74] The appellant directed this court to statements made by the trial judge in Little, where she concluded at para. 147 that the cell phone in issue “functioned as a mini-computer”. Furthermore, the court in Little found that the contents of the cell phone “were not immediately visible to the eye” and were “extracted by a police officer with specialized skills using specialized equipment.” There was no suggestion in this case that this particular cell phone functioned as a “mini-computer” nor that its contents were not “immediately visible to the eye”. Rather, because the phone was not password protected, the photos and the text message were readily available to other users.

The OCA noted that if the cellphone was password protected or locked to other users, a search warrant would be necessary to examine the contents of the cellphone. For the full-text decision in R. v. Fearon, 2013 ONCA 106, see: http://tinyurl.com/bbfb3vl Summary by: Lauren Lodenquai