• Lewis Waring

Cellphones in Searches Incident to Arrest - Gustavo da Roza

So, unfortunately, you’ve been arrested for a suspected armed robbery, and the police search you to ensure you are not carrying any weapons. They find your iPhone in your pocket and want to search it for any evidence of the alleged crime. However, your iPhone is locked. Do the police have a right to search your phone? If so, what methods of unlocking the phone are acceptable? Can they demand you to tell them your passcode? Or maybe they just hold up the iPhone to your face and use the “Face ID” option to unlock it. Do you have any rights in this instance?


In the book “Privacy in Peril” by Richard Jochelson and David Ireland, the evolution of police search powers is analyzed in relation to the Canadian Charter of Rights and Freedoms (“the Charter”) and the common law. More specifically, the book examines how our section 8 Charter rights, namely that “[e]veryone has the right to be secure against unreasonable search or seizure” has evolved over time, starting with the Hunter v Southam (1984) case (“Hunter”). In Hunter, it was established that, where feasible, the police need prior authorization (i.e., a warrant) that is based on reasonable and probable grounds. The Hunter case became the reference foundation for all future cases involving one’s privacy and the protection of it against the powers of the Crown. However, if you are confused by the phrase “where feasible” in combination with section 1 of the Charter, the absolute protection of privacy is not guaranteed; it is more aptly considered the reasonable expectation of privacy, which holds that in certain circumstances the threshold for the police and their search powers can be lowered. Over time, the Hunter decision and this standard of reasonable expectation of privacy was utilized by the courts to create additional ancillary powers for the police. One such notable new power, warrantless searches, allows searches incident to arrest, which I will discuss further in the below section, including how such powers impact digital privacy rights – specifically searching cellphones during an arrest.


The Search Incident to Arrest Involving Cellphones – The Rules as per R v Fearon (2014):


In R v Fearon (2014) (“Fearen”), the Supreme Court of Canada (“the Court”) found that a search of the contents of a suspect’s cellphone was a permissible search incident to arrest. However, for it to be compliant with the Charter, there were four conditions that the search had to meet:

  • the arrest is lawful;

  • the police have an objectively reasonable reason based on a valid law enforcement purpose to conduct the search;

  • the police’s reason is objectively reasonable;

  • the nature and the extent of the search are tailored to its purpose of the search; and

  • the police take detailed notes of what they examined on the device and how it was searched.

The valid law enforcement purposes in this context are:

  • protecting the police, the accused, or the public;

  • preserving evidence; and

  • discovering evidence, including in situations in which additional suspects need to be located and in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search a cellphone incident to arrest.

The above requirements seem prima facie straightforward. However, in the context of a smart-phone (from now on I will refer to this smart-phone as an iPhone for relatability), point (3) is problematic. Essentially, the Court states that the police can’t search through the entire contents of a cellphone; in practice: “[G]enerally, only recently sent or drafted emails, texts, photos and the call log may be examined […] But these are not rules, and other searches may in some circumstances be justified.” The phrase “generally” and “these are not rules” reveals this more as a guideline and thus would allow the police to operate outside this requirement potentially.


In the Fearon case, the suspect’s cellphone was “dumb” meaning it did not have the capabilities of an iPhone, thus the search was straightforward enough to look at the suspect’s photos and unsent messages, which confirmed the accused’s connection to the crime. However, an iPhone has endless possibilities for where to start and end a search. You can send messages not just through the text message or email application but through Facebook Messenger, Snapchat, or even Tinder (for those unfamiliar, it’s a dating application which allows chat… what better way to plan a heist?). The possibilities for finding the suspected incriminating evidence are endless, which begs a question of whether are there certain applications that are off limits?


It appears that as long as the police can justify why they searched that part of the phone then a search was reasonable. This broad rule seems prone to be abused both by police and criminals. Is there an opportunity for an iPhone application that prima facie looks like a gaming application but has a chat function with which someone could conspire a crime? The police technically shouldn’t be searching through a gaming application, but what if the police do? Was that in violation of the established guidelines? Overall, it is complex and worrisome to consider how the police may go about searching a cellphone when conducting a search incident to arrest; there are no clear rules and it is interpretated on a case-by-case basis. However, to get to that point of searching, the cellphone must be unlocked.


So the Police Found Your iPhone During Your Arrest, Now What?


Luckily for the police in the case of Fearon, the suspect was using a “dumb” phone and thus the cellphone was permanently unlocked; any user had full access to the contents. So, what happens when the arrested suspect has an iPhone that is initially locked? The Court in Fearon did not address these circumstances other than by stating that cell phones, whether they are locked or unlocked, should afford their owners the same privacy protections. If a cell phone is password-protected, then as per your right to remain silent upon arrest (section 7 of the Charter), you do not have to provide the police your password. The police may try guessing your password or use some type of forensic tool on hand to unlock it during the search incident to arrest. Howeever, such forensic tools are limited, as iPhone’s security is one of the best and Apple has refused to provide any backdoors to the US Justice Department despite frequent requests (for example, the FBI spent over $1 million and 4 months through a third party to unlock the iPhone of the suspected shooter in the San Bernardino case). So, in the most likely case of a search incident to arrest, the police would be out of luck and would have to obtain a warrant to forensically search the phone.


However, the evolution of iPhone technology has granted new ways to unlock a phone. In 2013, Touch ID was introduced, which allowed you to unlock your iPhone with a fingerprint, followed by the infamous Face ID in 2017 that allowed you to unlock your iPhone via the front camera using facial recognition. If the police took your iPhone and pointed it at your face to unlock it with Face ID or used your finger in the case of Touch ID, would this be in violation of your right to remain silent? The case law on this is very limited; nothing has reached the Court in regard to biometric data (fingerprint or facial recognition) that function as a password for cell phones. In the lower courts, there appears to be a requirement of informed consent by the alleged suspect for a thumbprint to unlock an iPhone.


Technically, the Crown could argue that fingerprints and your face do not impact your bodily integrity in a search and are no different from collecting your DNA at an impaired driving checkpoint. However, I believe the Court should view your Face ID for an iPhone as an extension of your password, which is private to oneself. The act of providing a password or unlocking a phone is a form of testimony – you are choosing to not remain silent and give access to evidence that could directly implicate you in a crime.


In a recent case before the Ontario Court of Justice (“the ONCJ”), the ONCJ declined to issue an assistance order requested by the police that would compel an accused to provide the password to his iPhone. In that case, the Crown argued that the password has no “incriminatory value or effect.” However, the ONCJ rejected this, stating that “[a]s a practical matter, without the assistance order, the evidence would never come into the hands of the police.” To force the accused to provide his password is to force the accused to provide something that only exists in his own mind. Furthermore, the ONCJ noted that, in some instances, “the Criminal Code which require a suspect or an accused to participate in providing or creating evidence, most particularly the DNA, fingerprinting, […]. The distinguishing feature in this case is the testimonial nature of the compulsion contemplated by the assistance order. Mr. Shergill will be required in effect to ‘speak his mind’ to the police. His assistance can only come about through an utterance conveying a thought in his head.”


Unfortunately, this statement still leaves Face ID for iPhones as an unknown, case-by-case situation. As usual, the courts are trailing the technological advances in our society. Nevertheless, if the interpretation of your iPhone’s Face ID is held to be the same as a password and thus a form of testimony against one-self, then you may be safe during a search incident to arrest. However, that may not stop the police from ignoring this by following the “informal” police doctrine of “ask for forgiveness later,” an unfortunate commonality of the evolution of police search powers.


Check out the Robson Crim MLJ
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