Call Dropped

Yesterday, the Supreme Court delivered its decision on the constitutionality of warrantless searches of cell phones incident to arrest, R. v. Fearon, 2014 SCC 77. By a 4-3 majority, the Court held that such searches are constitutional provided that some limits are respected. The dissent would only have allowed such searches in very limited “exigent circumstances.” Because Justice Cromwell’s majority opinion is somewhat vague in substance and ambiguous in tone, as well as for technological reasons, the consequences of this decision are uncertain, and may well prove quite limited. We should hope that they will, because Justice Karakatsanis’s dissent has the better of the argument.

Mr. Fearon was arrested on suspicion of involvement in an armed robbery. Police officers searched at the time of the arrest, as the law has long recognized their right to do, and found his cell phone, of the “dumb phone” variety, and searched it. They found a picture of a gun, later determined to be the gun with which the robbery had been committed, as well as a draft text message proclaiming that “we did it” ― it being quite clearly the robbery. The police searched the phone again later on, and yet again some six months later, after obtaining a warrant to search it and download its contents, but found nothing more of interest. At trial, Mr. Fearon applied to have the evidence of the phone search excluded, but the judge refused, as did the Ontario Court of Appeal.

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Having reviewed the Supreme Court’s previous decisions dealing with searches incident to arrest, Justice Cromwell turns to the search in this case, emphasizing that it was done for one of the purposes recognized as legitimate in these cases ― the gathering of evidence. The police, he stresses, believed that searching the phone could lead them to other suspects or help them find the gun used in the robbery or the property stolen. Justice Cromwell notes that as a general matter, the power of search incident to arrest “is extraordinary because it requires neither a warrant nor reasonable and probable grounds,” [45] and insisted that

[t]hat the exercise of this extraordinary power has been considered in general to meet constitutional muster reflects the important law enforcement objectives which are served by searches of people who have been lawfully arrested. [45]

Searches of cell phones, in particular, can be very useful to law enforcement. At the same time, says Justice Cromwell, “the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “‘places’.” [51] The amount of information such devices can contain and the things they can reveal about their users are without comparison to other objects or “containers” such as briefcases. Justice Cromwell also indicates that neither the type of device (whether a “smart” phone or not) nor its being or not protected by a password matters to determining the amount of constitutional protection it receives.

That said, Justice Cromwell asserts that “while cell phone searches … may constitute very significant intrusions of privacy, not every search is inevitably a significant intrusion.” [54] And any search incident to arrest

must be linked to a valid law enforcement objective relating to the offence for which the suspect has been arrested. This requirement prevents routine browsing through a cell phone in an unfocussed way. [57]

He therefore rejects a rule that would categorically prohibit warrantless searches of cell phones incident to arrest, such as that which the U.S. Supreme Court set out in Riley v. California, 134 S.Ct. 2473 (2014). He also rejects the further alternatives of requiring the police to have “reasonable and probable grounds” before searching cell phone, or limiting the searches to “exigent circumstances” where they are necessary to prevent harm to persons or avoid the destruction of evidence. The ability to search phones is too important to police, and should not be taken away if it is possible to set out some safeguards that will limit the intrusions on the privacy of the suspects.

Justice Cromwell thinks that it is indeed possible to do so. First, “[b]oth the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence,” which usually will mean that “only recently sent or drafted emails, texts, photos and the call log may be examined,” though “these are not rules, and other searches may in some circumstances be justified.” [76] Furthermore, the investigation of some crimes, notably those involving “violence,” “readily disposable property,” and “drug trafficking” will more readily support searches of phones than that of “minor offences” [79] Second, cell phone searches incident to arrest are only permitted to find evidence absent the prompt discovery of which “the investigation will be stymied or significantly hampered” ― meaning

that the police will have to be prepared to explain why it was not practical … in all the circumstances of the investigation, to postpone the search until they could obtain a warrant. [80]

And third, police must take detailed notes when they search a cell phone.

These constraints were not respected during the search of Mr. Fearon’s phone, albeit for the excellent reason that the Supreme Court had not yet articulated them. Accordingly, Justice Cromwell finds that Mr. Fearon’s right not to be subject to an unreasonable search was infringed, but decides that the evidence could nonetheless be admitted under s. 24(2) of the Charter, as the infringement was not so serious as to “bring the administration of justice into disrepute.”

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Justice Karaktsanis, for her part, argues that Justice Cromwell’s attempt to limit the intrusions on the suspects’ privacy caused by searching their cell phones will not work. Indeed, in her view, the safeguards proposed by Justice Cromwell will fail to protect privacy while still hampering the work of police and generating litigation.

She begins by observing that

[o]ur digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. Our digital devices are windows to our inner private lives. [101]

For this reason, the search of a cell phone is just as serious an “encroach[ment] on the arrested person’s most private spheres [as that] of a home, or the taking of bodily samples.” [104] For Justice Karakatsanis,

the cell phone is like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices. … The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home. In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm. [132]

She also points out that “[t]he threat of unreasonable intrusions on privacy (and not only the unreasonable intrusion itself) is enough to undermine the values served by privacy.” [117]

On the other side of the ledger, Justice Karakatsanis acknowledges that “searching a cell phone will often be very useful for law enforcement,” [137] but argues that absent exceptional circumstances, waiting for a warrant to do so will not be too much of a burden. While the wait might occasionally hamper an investigation, as with the prohibition on searching a home incident to arrest, this is the price to pay for protecting privacy.

The restrictions on searches proposed by Justice Cromwell, just like a rule allowing only “cursory” cell phone searches incident to arrest, are in Justice Karakatsanis’s view impracticable, uncertain, and bound to generate after-the-fact litigation. A search that is intended to be limited or cursory can still lead to highly private information. Even

a cursory inspection for recent communications will need to search a host of applications ― the privacy infringement may be far from minimal and the inspection far from quick. Similarly, a cursory inspection of photos may involve any number of private and personal photographs of the individual ― and of third parties. [164]

Letting the police carry out such inspections would be an invitation for suspects to subsequently litigate the admissibility of their fruits ― yet even if the evidence is then excluded, the harm to privacy will already have occurred.

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It’s not clear just what the effects of the majority’s decision will be. In theory, it is even possible that police will take to heart Justice Cromwell’s warnings about the limited scope of permissible cell phone searches, though I wouldn’t count too much on that. More importantly, technology will help accomplish that which constitutional law will not. If a phone is protected by a password and locked at the time it is seized, the police will not be able to search it incident to arrest, and will need to obtain a warrant anyway. And with manufacturers deciding to relinquish their own ability to break the password protection of their phones, as Apple has already done, phones may become unsearchable, even with a warrant, in the future ― which is not necessarily a good thing.

Yet to the extent that the decision does matter, it is, I think, a regrettable one. Justice Cromwell dutifully recites the his own conclusions, for the Court, in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 about the potentially far-reaching effects of searching computers, and acknowledges that cell phones are equivalent to computers from a privacy perspective. But when reading his assertion that “[l]ooking at a few recent text messages or a couple of recent pictures is hardly a massive invasion of privacy, let alone an affront to human dignity,” [61] one cannot help but wonder just how seriously he takes his own words. Justice Cromwell discusses the dignitarian problems inherent in strip searches, but would allow police to look at images just as if not more intimate. He is aware of the intrusiveness of a taking of bodily samples, but would let police read emails discussing a person’s health issues. Justice Karakatsanis, whose opinion reads like that of a very technologically savvy person, has a much better appreciation of what is at stake when phones are searched, and of the likely impossibility to the searches’ effects on privacy.

Indeed, the Justice Cromwell’s opinion is striking in the extent to which it seems to favour the interests of law enforcement. It seems much more concerned with the efficacy of police investigations than with the rights of the persons these investigations target. One wonders whether Justice Cromwell was swayed by his conclusion ― irrelevant and apparently unsupported ― that the robbery of which Mr. Fearon is accused is “a crime that has become depressingly routine.” [5] We can only hope that this attitude will not affect other, perhaps more significant, cases in the future.