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From banking to emails, messages, and online shopping, we use our smartphones now more than ever before. As a result, few things contain as much personal information. This causes the convenience of smartphones to work against you if you are arrested and your phone is searched.

However, as your criminal defence lawyers in Calgary, we want you to know that the right to search a phone upon arrest is limited. In R v Fearon, 2014 SCC 77 at para 51 the Supreme Court of Canada explained that “a cell phone, unlike other “places,” may contain vast quantities of personal information.”

For this reason, special rules apply to phone searches leading to arrests because of increased privacy concerns.

Searches of Cell Phones Incident to Arrest

The Charter provides everyone the right to be secure against unreasonable search and seizure.

The general rule is that a warrantless search is unreasonable and not permitted. Police should obtain a warrant to search. One exception to this rule is when the search occurs incident to arrest. However, there is no blanket right to search a phone incident to arrest. To justify a cell phone search, the court must be satisfied that:

(1) The arrest was lawful

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence

(3) The nature and the degree of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched.

Police should obtain a warrant if they want to search your phone. But, as listed above, there are limited circumstances when a warrantless phone search is justified. A search of a phone incident to arrest may be allowed in circumstances involving violence or threats of violence, especially when another suspect is still at large. A search may also be justified in circumstances where property may be easily disposed of, including cases of robbery or drug trafficking.

Even when an initial search of a phone can be justified, a search can be unreasonable if it goes beyond the purpose. A justified search of a phone incident to arrest is most commonly confined to recent communications, such as texts or emails. A search can also be unreasonable if it was conducted for the right purpose and the search itself was limited but the officer failed to take detailed notes.

Passwords and Locked Phones

If the police arrest you, find a phone and want to search it, but it’s locked – do you have to give them the password? Simply put, no – your right to silence and the right against self-incrimination are protected by section 7 of the Charter. This extends to information about passwords and usernames. Even if police are authorized by a warrant to search your phone, you are not obligated to help them open it.

Police may still be able to access your phone without a password. Once seized, your phone may be sent to a specialized unit to undergo a technological analysis.

What if Police Found Something on Your Phone?

If you have been charged or there is an investigation pending and your phone was unlawfully searched, you may be able to get the evidence thrown out. Consult lawyers at Roulston Urquhart who will determine whether your Charter rights have been violated and what remedy you may be entitled to.

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