Mobile phones, privacy, and police searches

Another criminal case in Canada is hinging on evidence police gathered from a private cell phone.

A lawyer in the west coast province of British Columbia is arguing in the provincial Appeals Court, that police should obtain a warrant before being able to search the contents of mobile phones.

The case involves a man convicted of a kidnapping. Prior to his conviction police had arrested him twice and each time seized a mobile phone. Because they were password protected, special efforts were required to comb through text messages and photos in the phones, later used to help convict the man.

They were seized under a principle called ‘search incident to arrest” in which police can search a suspect for evidence such as weapons or other evidence, during an arrest.

The lawyer argues the police should require a warrant to search cell phones as they are “repositories of vast personal information”. He argues that privacy issues are involved because of that and that police don’t have a free hand to search through contents of phones or computers.

In a similar case in the central province of Ontario, a man was convicted of a robbery after police searched his mobile phone. That conviction was challenged at the provincial Court of Appeal, which upheld the conviction saying the phone wasn’t password protected and so police were allowed to look through the phone in a “cursory” fashion for evidence related to the crime. The court also ruled that if police wanted to conduct a detailed search of the phone contents, or if the phone had been password protected, a warrant would be required.

That case is now scheduled to be heard by the Supreme Court of Canada in April.

Last year the highest court ruled in a separate case that special authorization is needed to search computers and cellphones during the execution of a search warrant.

However that case involved searches of a location, such as a house, and didn’t specifically address a search during an arrest.