And that trend will hopefully continue with its upcoming Fearon decision on the ability to
search cell phones incident to arrest.
A 4 - 3 majority held that the police can
search a cell phone incident to arrest without a warrant but subject to various limitations prescribed by the Court.
Not exact matches
Our answer to the question of what police must do before
searching a
cell phone seized
incident to an arrest is accordingly simple — get a warrant,» he wrote.
As a result of a
search incident to arrest, Constable Funk located other illicit drugs along with a
cell phone on the accused.
[1] This court is asked to carve out a
cell phone exception to the common law doctrine of
search incident to arrest...
Nevertheless, under similar circumstances, the court in v. Powell (2017) also found that the complete «data dump» of all the information contained on the accused
cell -
phone conducted thirteen days after the initial arrest was beyond the scope of a
search incident to arrest.
In addition to criminal
search powers
incident to arrest and
search powers authorized by warrants, the Canadian Border Service Agency believe they may also
search one's
cell phone upon an exit or entry at the border pursuant to the Customs Act.
R. v. Fearon, 2014 SCC 77 (35298)
Searches of
cell phones incident to arrest is permitted, provided the
search (both what is
searched and how it is
searched) is strictly incidental to the arrest and police keep detailed notes of what has been
searched and why.
The majority allows warrantless
searches, in part, based on a finding that the privacy impact of a
cell phone search incident to arrest can be meaningfully mitigated by the application of a «tailored» inspection.
The majority held that in balancing the objective of law enforcement and personal privacy interests,
cell phone could be
searched incident to arrest with three modifications:
The first is to hold that the power to
search incident to arrest generally includes the power to
search cell phones, provided that the
search is truly incidental to the arrest: R. v. Giles, 2007 BCSC 1147 (CanLII); R. v. Otchere - Badu, 2010 ONSC 1059 (CanLII); Young v. Canada, 2010 CanLII 74003 (NL PC), 2010 CanLII 74003 (Nfld.
Finally, it has also been held that
searches of
cell phones incident to arrest are not permitted except in exigent circumstances, in which a «cursory»
search is permissible: R. v. Liew, 2012 ONSC 1826 (CanLII).