R. v. Hiscoe 2013 NSCA 48 – this was an appeal by the Crown from the trial judge’s decision to exclude evidence on the basis the respondent’s s. 8 Charter rights had been infringed when the police seized his smartphone in a search incidental to his arrest and downloaded its entire contents. The respondent was charged with possession of cocaine for the purpose of trafficking. Prior to the arrest, the police had the accused under surveillance for some time throughout the day. They had information about his alleged drug activities. They followed him into a drive-in-theatre where they witnessed an exchange between him and the driver of the second vehicle. The accused was driving the vehicle and his mother was in the passenger’s front seat. When this exchange took place, the accused was arrested. The police found cash in the vehicle of the other driver and a bag of cocaine on the ground between the two vehicles. During the arrest procedure, an officer seized the accused’s cell phone which was on the seat of his car. It was described as a “smart phone like a Blackberry”. It did not have a password.
At the arrest scene, an officer opened the cell phone and reviewed a number of text messages. The officer explained that he seizes cell phones in instances where persons are arrested for trafficking in drugs. He explained that cell phones often contain score sheets, records of drug debts, contacts of other persons and text messages and phone calls in the time leading up to the offence which indicate a negotiation of drug prices and amounts, meeting places and other pertinent details. He said that this information is time sensitive as it may disclose possible stash locations and locations of weapons. The officer also testified that it is possible that information on cell phones can be deleted remotely. Because of this, the officer indicated that he reviewed the text messages and later that evening when more time was available he transcribed the messages after another officer dictated them to him.
A month later, an officer took the cell phone to the RCMP Technological Crime Unit in Dartmouth, at which time the entire contents of the phone were downloaded and placed on a DVD. Thus the police conducted three separate examinations of information on the respondent’s cell phone: (a) at the scene of the arrest, when the officer reviewed recent texts in a cursory fashion, (b) again on the evening of the arrest, when those messages were transcribed, and (c) about a month later, when the entire contents of the cell phone were downloaded onto a DVD. It was the observations made by the officer at the arrest scene, the transcribed notes of the text messages made later that evening and the DVD of the full contents of the cell phone which were the subject of the accused’s application.
After a detailed review of the jurisprudence on search incidental to arrest, s. 8 and s. 24(2) of the Charter, the Trial Judge determined that the examination of the smartphone at the scene of the arrest to view recent text messages, and later that day to transcribe those messages, were within the lawful scope of police authority to search incident to Mr. Hiscoe’s arrest for possession of a controlled substance for the purposes of trafficking. That search did not violate his s. 8 rights and thus that evidence was not excluded from evidence.
However, the judge concluded that the complete content download or “data dump” of the smartphone was beyond the scope of a search incident to arrest, and violated the respondent’s s. 8 rights. He gave several reasons for his conclusion. He observed that the data dump was done almost a month after arrest and the search focused on the information held in the cell phone. In his opinion, “most importantly” the full download search was too broad in its scope and ought to have been constrained. It was his view that the police were searching not incident to arrest, but in furtherance of their investigation. Pursuant to s. 24(2) of the Charter, he excluded the evidence from that content download from evidence.
On appeal, it was undisputed that:
(a) the police had grounds to arrest Mr. Hiscoe at the drive-in for the indictable offence of possession of controlled drugs for the purpose of trafficking;
(b) the respondent had a reasonable expectation of privacy in the contents of his smartphone;
(c) the seizure of his cell phone was lawful under the search incident to arrest power, because it was on the driver’s seat at the time of the respondent’s arrest and the officer had a reasonable basis to believe that it contained text messages relating to the apparent drug meeting with the driver of the second car;
(d) each of the three occasions when the police examined and retrieved information from his cell phone constituted a warrantless search; and
(e) the police examinations of the cell phone at the scene of the arrest to view recent text messages and later that day to transcribe those messages was within the lawful scope of police authority to search incident to arrest.
What was contested on this appeal was the judge’s finding that the complete data download of the smartphone’s contents exceeded the scope of the power of search incident to arrest. After examining several pieces of case law in this regard (Caslake, Manley, Giles, Polius, inter alia), the Appeal Court ruled that the data dump was beyond the scope of a search incident to arrest in that there is a heightened expectation of privacy in cell phones. Further, the prospects of discovering evidence are not the same for every separate informational location housed in the smart phone. It is not a single container. Here there was no attempt to tailor the search to locations where the prospects of locating evidence was reasonable. There must be a reasonable prospect of discovering evidence. That requirement, in the court’s opinion, applied to every separate location which the cell phone contains. This cannot be achieved in a “data-dump”. Thus, the Crown’s appeal was dismissed.
Although the appeal did not focus on the presence or absence of a password or lock, the court made it a point to address that while it may be another relevant factor in determining whether a search incident to arrest is lawful or within its proper parameters, in the view of this court, it should not be determinative. Whether such a security feature exists or is turned on is not substantively helpful in determining the privacy interests of the accused in the contents of his cell phone, nor the propriety of a police search. Just because a password is not on at the very moment the police seize a cell phone, it cannot mean that the state is welcome and free to roam through its contents.