Court Way off on Warrantless Cellphone Searches: George Takach

6 May 2013 — In this month’s technology column, George Takach picks apart the Ontario Court of Appeal’s troubling decision in Fearon, which rules that an arresting police officer can — without a warrant — confiscate a suspect’s cellphone and search through it for incriminating evidence, so long as the device is not password-protected.

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Takach is clearly perturbed by the court’s reasoning that the evidence in this case (a photo and text message that essentially confirms the crime) is acceptable because the police officer’s search was merely “cursory.”

One online dictionary defines “cursory” as “going rapidly over something, without noting details … hasty, superficial.” In light of this meaning, it is difficult to understand how anyone can perform a cursory search of a cellphone device to reveal specific files or pages. Surely any search that results in specific photos, documents and text being found is anything but cursory. It would appear that, in Fearon, the officer would have had to navigate through specific screens, photographs and text messages, and the court admits that the officer had to operate the keyboard or the phone — hardly cursory behaviour.

Neither is Takach much convinced by the court’s conclusion that, because the cellphone in question was not password-protected, the accused could not have had a high expectation of privacy.

Does this accord with reality today? What if we were dealing with a home? The owner of the house lives in a small town, and small-town values still resonate with this person, such that the owner never locks her front door when she leaves the house. Could a policeman, upon seeing the door unlocked, simply walk into and ramble around the premises without a warrant? The answer is obviously no.

Read George Takach’s column, via Lexpert‘s digital edition, right here.

David Dias

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