Searching Digital Evidence

Currently, there is a “SUBMISSIONS REGARDING SEARCH OF DIGITAL EVIDENCE; APPLICATION FOR LEAVE TO INTERVENE,” by Alan D. Gold before the Court of Appeal for Ontario (Side Note – Alan D. Gold is a certified specialist in criminal litigation and has appeared as counsel in many leading criminal cases).  The Submission stems from R. v. Yu 2011 ONSC 7507 (and R. v. Liew 2012 ONSC 2990, the co-accused) in which Yu was committed to stand trial on two counts of importing cocaine and two counts of conspiracy to import cocaine.  The case against Yu was entirely circumstantial. The charges arose out of a controlled delivery of a shipment of wood that contained cocaine. The evidence at the preliminary inquiry included calls made to Yu’s cell phone, the presence of his vehicle in the vicinity of the controlled delivery, and documents related to the delivery found in Yu’s home.  The Submission can be summarized that the learned trial judge erred in the instant case when it was concluded that the warrantless search of a phone seized incident to arrest was not reasonable, save in exigent circumstances.  Since the matter is still before the court, I can only discuss portions of the Submission and update the blog once the decision is made.

At para. 29 of the Submission, Gold states:

The paradigm of a search incident to arrest involves a search limited in both time and place by temporal and proximity limitations. Consequently the potential invasion of privacy is inherently limited. Only so much can be carried on or about the person to be searched and found in the permissible time and proximate area incident to an arrest. Searches involving digital devices will be completely unbounded in both aspects. A search measured in minutes could potentially reveal private information of unlimited scope from data potentially stored anywhere in the world, or “cloud”. In today’s rapidly advancing technological world, a smartphone now holds or can access an enormous amount of information and data which far exceeds the limits of the physical world and which can be accessed far faster than any physical search. Smartphones and other personal data-capturing and storage devices represent an unprecedented new frontier in which the common law principles regarding search incident to arrest must be judicially reassessed. Trying to protect privacy in the digital world with concepts developed in the physical world will bring it to the brink of extinction, if not send it over.

Gold submitted that in the context of smartphones and personal digital devices generally, the search incident to arrest common law rule has now become unreasonable, and a search of such devices requires a search warrant. He argues that digital evidence can be immediately protected and secured by the simple expedient of wrapping it in aluminum foil or, more “officially”, putting it in a “Faraday bag” (i.e., a bag in which to preserve the data contained in the device and protect it against the possibility of being erased from an external source). Then a warrant could be sought to search the contents of the phone. This approach, said Gold, would not only be simpler, but safer, from the standpoint of not only the accused, but the officer as well. Not only would the data be preserved, eliminating the risk of an officer accidentally destroying evidence, but the officer would not need to worry that the scope of the search undertaken indeed exceeded the scope of a “cursory search”, with each press of a button and each swipe of a screen.  Interestingly, one published online law enforcement community that Gold referred to actually recommends to police officers not to attempt to look through the phone on scene, and suggests that “by navigating through the phone, you are also altering evidence”. The same source sets out the proper handling of such devices, including placing it in a Faraday bag, aluminum foil, or other signal-blocking container.

At para. 52, Gold argues:

Rather than have an officer make the judgment call at the time of arrest as to the search of a person’s phone – a device now recognized to be complex and to contain data and information far beyond whatever else might be carried around on an individual’s person or in the “immediate surrounding area” – it would be more prudent to simply seize the phone, preserve the data immediately, and have a judicial officer review the Information on oath and decide whether a warrant to search the device ought to be issued. The judicial officer could then not only decide whether or not reasonable and probable grounds to issue a warrant exists, but, as important, if reasonable and probable grounds for a warrant existed, impose such circumstances or conditions for the device search, thereby giving the police the appropriate amount of access to the device, while still protecting the individual’s privacy interests. The search of a device can be limited or compartmentalized to those areas which are deemed to be of potential relevance to the investigation. In the case of digital devices, the interceding judicial officer contemplated by Southam is of the greatest significance possible.

At para. 53:

It is the Respondent’s position that, even under the present law, the search of the cell phone violated [Liew]’s (and by extension, Mr. Yu’s) section 8 Charter rights against unreasonable search and seizure, as found by the learned trial judge. In the alternative, it is respectfully submitted that the time has now come to declare a bright line rule: while cell phones and other digital data devices may be seized upon arrest, they may not be searched unless and until a search warrant for the device itself is granted. This is easily facilitated by the rudimentary technology (in the form of Faraday bags or simple aluminum foil) required to preserve the evidence, and to rapidly obtain judicial authorization (in the form of telewarrants). This would come at no cost to legitimate police interests or the public interest. The only cost will be enforcing respect for the fundamental constitutional protection of privacy.

And finally, at para. 54:

Presumptively unreasonable warrantless searches and seizures are lawful only when the public interest implicated outweighs the risk to privacy. It is accepted that physical seizure of a cell phone along with any other personal property of an arrestee is not an issue. The public interest underlying the police wish to search a personal digital device or smartphone is completely respected by a very limited emergency exception in relation to physical safety and simple use of aluminum foil or a Faraday bag to “freeze” the device and its contents pending a search warrant application. On the other hand, the risk to personal privacy having regard to the ever evolving nature of such devices is intolerable if the police can unilaterally control the search decision.

Gold submits that private digital material on a personal digital device, in their highly private, unrestricted nature should not be the subject of access and thereafter permanent availability to the police (even if only in memory) on a warrantless basis, thus never ending the privacy invasion.  Stay tuned for the decision!

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