Police Can Search Non-passcode-Protected Cellphones, Ontario Court Says

by Istvan Fekete on February 22, 2013

The Court of Appeal for Ontario ruled that the right of police officers to examine someone’s phone depends on whether the device has a passcode or not, the Canadian Press reports.

If the cellphone does not have a passcode, the police have the right to have a cursory look through the phone upon arrest. If the phone is passcode-protected, they must obtain a search warrant, Ontario’s highest court says.

The aforementioned question became the subject of a robbery conviction appeal after a man argued that the police breached his charter rights by searching through his phone after they had taken him in.

The man was arrested in July 2009 after a jewelry stall at a flea market in Toronto had been robbed. After police officers got their hands on his cellphone, they found images of a gun and cash, as well as a text message about jewelry on his phone.

After appealing against his conviction, he found that the Court of Appeal for Ontario denied his request, saying the police had the right to search through his phone “in a cursory fashion” to look for evidence related to the crime they were investigating, but after that they should stop and obtain a search warrant.

The judges have referenced a decision in a murder case where the contents of the personal electronic device “functioning as a mini-computer” were extracted by a police officer using specialized equipment. Since the device has high expectations of privacy, the judge did not allow evidence extracted from the device.

But in the robbery case, there was no suggestion that the man’s cell phone would function as a “mini computer”, nor that its content were not “immediately visible to the eye”, the Court of Appeals for Ontario judges ruled on Wednesday.

“Rather, because the phone was not password protected, the photos and the text message were readily available to other users.”

“It may be that some future case will produce a factual matrix that will lead the court to carve out a cellphone exception to the law,” the ruling said. “To put it in the modern vernacular: ‘If it ain’t broke, don’t fix it.'”

As both the robbery and the murder case referenced by the judges show, there is a lack of specific rules for all cellphone searches, a legal gap that needs to be filled.

Written by: Istvan Fekete. www.digitcom.ca. Follow TheTelecomBlog.com by: RSS, Twitter, Facebook, or YouTube.

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