CAN POLICE SEARCH A PERSON’S PHONE WITHOUT A WARRANT? Precedent Setting Charter Case

R. v. Fearon, 2013 ONCA What is a search incidental to arrest? How is it relevant to this case? A search incidental to arrest is a search conducted to achieve a valid purpose connected to the arrest. In this case, the search incidental to arrest conducted by the officer resulted in the discovery of the cellphone that contained photographs and a text message, which were used as evidence against Fearon. As a result, Fearon was charged with armed robbery.

R. v. Fearon, 2013 ONCA Why did Fearon argue that his s. 8 Charter rights had been violated? Counsel for Fearon argued that police action in this case amounted to an unreasonable and illegal search and seizure. As a result, the evidence obtained from his cellphone should have been excluded at trial.

R. v. Fearon, 2013 ONCA Counsel for the Canadian Civil Liberties Association, an intervener in this case, suggested that “the state should not be entitled to search a person’s entire virtual existence simply because they happen to have been arrested on suspicion of a particular offence.” Do you agree or disagree with this argument? Explain. The Court of Appeal agreed that the contents of a cellphone can be highly personal and sensitive. However, Justice Robert Armstrong rejected the argument of the Canadian Civil Liberties Association, stating, “I am of the view that it is difficult to generalize and create an exception based on the facts of this case.”

R. v. Fearon, 2013 ONCA Crown counsel argued that placing cellphones in an exceptional category was “overly simplistic and illogical.” They suggested that “information that may be stored in a cellphone is no different than the kind of information that people carry in tangible form in briefcases, purses, and other similar containers.” Do you agree or disagree? Explain. The Court of Appeal agreed that there should not be a cellphone exemption to a search incidental to arrest simply because there may be more information in a cellphone.

R. v. Fearon, 2013 ONCA What if Kevin Fearon’s cellphone had been “locked” and police then took steps to open the cellphone and examine its contents without obtaining a search warrant? Would this affect the legality of this search? Explain. The Court of Appeal made clear that “it would not have been appropriate” for police to “unlock” the cellphone without first obtaining a search warrant.

R. v. Fearon, 2013 ONCA The Court of Appeal concluded its decision by suggesting that “if it ain’t broke, don’t fix it.” Should police require a warrant to search a cellphone after arrest? What do you think? Explain. Fearon is considering appealing to the Supreme Court of Canada. What may be clear from this decision is that the Fearon case is the first of many cases dealing with cellphone searches by police. It remains to be determined if the Court of Appeal’s axiom, “if it ain’t broke, don’t fix it,” holds true in the future.