Police are not entitled to search a blackberry incident to arrest.

R. v. Mann 2014 BCCA 231 – this was an appeal from a conviction by a judge without a jury of multiple charges related to a kidnapping. The appellant was charged as the third kidnapper in a kidnapping that occurred in 2006. He appealed his conviction on three grounds (ground two is what I will be discussing in this blog post). The appellant claimed the trial judge erred in finding the searches of two BlackBerry devices seized during his arrests were valid under the common law power of search incident to arrest. The police downloaded the full contents of the BlackBerrys without obtaining a search warrant. The appellant argued these warrantless searches violated his right to be free from unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.

During the police investigation of the kidnapping, the appellant was arrested twice; on June 8 and June 28, 2006. During each of the arrests, a BlackBerry device was seized by police. BlackBerry #1 was submitted for analysis at the RCMP’s Technological Crime Unit in Ottawa on June 13, 2006. The cell phone could not be analyzed because it was password protected. It was submitted for analysis again in July 2008. Data extraction was completed by August 6, 2008. The recovered user data included the text of 72 messages received or sent on June 27 and 28, 2006, 22 of which the Crown relied on in its case against the appellant. BlackBerry #2 was submitted for analysis on July 4, 2006. Data was extracted on August 26, 2006. The data recovered included the text of 269 messages received or sent by the user, 81 of which the Crown relied on in its case against the appellant. No search warrant was sought or obtained with respect to the searches of the two BlackBerry devices.

The defence challenged the lawfulness of the warrantless searches of the contents of the BlackBerry devices. The appellant argued, as he did on appeal, that the common law power of the police to perform a search incident to arrest does not extend to a “highly intrusive” search that risks the collection of private information stored in a mobile communications device such as a BlackBerry. He claimed further that the searches were unreasonable because in the course of extracting data from BlackBerry #1, it was physically destroyed, and because the searches of the BlackBerrys were temporally disconnected from the arrests. The trial judge followed the decision in R. v. Giles, 2007 BCSC 1147, in finding the warrantless searches were lawful searches incident to the arrests. Giles also dealt with a warrantless search of a BlackBerry device seized during the arrest of the accused. In Giles, Madam Justice MacKenzie (as she then was) held that the search did not fall outside the scope of a search incident to the arrest of the accused on serious drug charges. She found the search of the BlackBerry was “akin to looking inside a logbook, diary, or notebook found in the same circumstances” (at para. 56), and “[t]he capacity of this BlackBerry to potentially store volumes of information does not, in my view, change the character of the search from being lawful as incident to the arrest, into a search that required a warrant” (at para. 63).

The appeal to the BCCA started with an analysis that generally requires prior authorization in the form of a warrant, as warrrantless searches are presumed to be unreasonable: Hunter v. Southam, [1984] 2 S.C.R. 145 at 160-161. Where a search is carried out without a warrant, the Crown has the burden of showing, on a balance of probabilities, that the search was reasonable. A warrantless search will be reasonable if it is authorized by law, if the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265 at 278. The power to search incident to arrest without a warrant is a well-established exception to the requirement for prior judicial authorization for a valid search. The Supreme Court of Canada described the principles underlying the power in Cloutier v. Langlois, [1990] 1 S.C.R. 158 and explained them further in R. v. Caslake, [1998] 1 S.C.R. 51.

In applying these principles to the search of smartphones, the courts have considered the individual’s privacy interest in the information contained in such devices, the purpose for the search, and the connection of the search to the arrest in time and distance. Giles was an early case that considered the scope of the power to search incident to arrest in relation to the search and seizure of smartphones. Two years later, in R. v. Polius, [2009] O.J. No. 3074 (S.C.J.), police seized the accused’s cell phone on his arrest, searched the cell phone to find its number, and used that information to obtain a production order under s. 487.012 of the Code to acquire his cell phone records. Justice Trafford of the Ontario Superior Court held that the seizure of the accused’s cell phone on his arrest for counselling murder was not lawful because the arresting officer did not have a reasonable basis to believe that the cell phone may contain evidence of the alleged offence. Justice Trafford went on to consider the scope of the power to search an item seized incident to an arrest. He expressed the view (at para. 41) that a search warrant was required to examine an item beyond a cursory examination. In particular, he found that the deeply personal nature of the information in a cell phone, computer or other electronic device implicated a range of privacy interests protected by s. 8 of the Charter.

The following year, in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (which did not concern a search incident to arrest), the Supreme Court of Canada noted the high degree of privacy afforded to the information in an individual’s computer, stating (at para. 2): “It is difficult to imagine a search more intrusive, or invasive of one’s privacy than the search and seizure of a personal computer.” Next chronologically, the Ontario Court of Appeal considered the scope of a search incident to arrest in relation to cell phones in R. v. Manley, 2011 ONCA 128 and R. v. Fearon, 2013 ONCA 106. In both cases, the Court considered, but neither adopted nor rejected, Trafford J.’s views expressed in Polius on the necessity of a warrant to conduct more than a cursory search of a cell phone. These cases were decided after the trial judge’s ruling in this case. R. v. Fearon2013 ONCA 106, raised similar issues. In that case, police arrested the accused for armed robbery and seized a cell phone. The arresting officer examined the contents of the cell phone (which was not password protected) and found incriminating photographs and a text message. The cell phone was searched further during the night and the next morning as the investigation continued, but no more evidence was found. Months later, the police obtained a search warrant to search the phone again. The trial judge held the police reasonably believed the examination of the cell phone contents would yield relevant evidence, and concluded there had been no breach of the accused’s s. 8 Charter right. On appeal, Justice Armstrong upheld the trial judge’s conclusion that the cursory search of the cell phone immediately following the arrest was a lawful search incident to arrest (at para. 57). He had more difficulty with the later examinations of the contents of the cell phone at the police station, and expressed the view that police should have obtained a warrant for these further searches. He deferred to the trial judge’s findings, however, that the examination of the cell phone’s contents at the police station was connected to the search at the scene of the arrest (at para. 58).

All of these cases were thoroughly canvassed in R. v. Hiscoe, 2013 NSCA 48, where Justice Oland commented (at para. 59):

In the result, the decisions of the Ontario Court of Appeal in Manley and Fearon neither approved – nor rejected – the approach in Polius. When the judge here gave his voir dire decision, there were two main lines of authority: one based on the British Columbia decision in Giles which upheld a full search of cell phone contents without a warrant, and one based on the obiter dicta in the Ontario decision in Polius which supported only a cursory search before a full search, if warranted. There were no decisions of any Canadian appellate court of persuasive authority.

The trial judge held that police violated the accused’s s. 8 Charter right. He determined that police were authorized to conduct a cursory review of the appellant’s text messages upon arrest and later that day, but concluded the full content download or “data dump” was beyond the scope of a search incident to arrest. The trial judge found that the month delay between the seizure of the phone and the full data retrieval “reduces any connection with the arrest” (Hiscoe at para. 63 quoting R. v. Hiscoe, 2011 NSPC 84 at para. 86). The Court of Appeal upheld the trial judge’s ruling. Justice Oland for the Court emphasized the individual’s interest in the protection of his or her right to privacy from “unjustified state intrusions” (at para. 69), with particular reference to the impact of changing technology (at para. 70).

In R. v. Vu2013 SCC 60, [2013] 3 S.C.R. 657, released after Hiscoe, the Supreme Court of Canada reiterated the heightened privacy interests individuals have in the contents of computers and cell phones, echoing Morelli (at paras. 39-44), and held (at para. 45):

The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches.

Vu did not deal with a search incident to arrest. Justice Cromwell limited his reasons to the scope of the appeal, stating (at para. 63):

… I do not, by way of these reasons, intend to disturb the law that applies when a computer or cellular telephone is searched incident to arrest or where exigent circumstances justify a warrantless search. Rather, these reasons relate to those situations where a warrant is issued for the search of a place and police want to search a computer within that place that they reasonably believe will contain the things for which the search was authorized …

In R. v. Vye2014 BCSC 93, released in January of this year, Mr. Justice Thompson did not follow Giles, Mann and R. v. Dhillon, 2013 BCSC 869 , but, based on the findings in Vu concerning the heightened privacy in computers and cell phones, concluded (at para. 29):

Accordingly, the foundational pillars of the reasoning in Giles–that is, the notion of a cellular phone search being of a lesser order of invasiveness than other highly invasive types of searches, the conclusion that a cellular phone ought not to be treated differently than traditional receptacles, and the assertion of the pointlessness of allowing the police to seize a cellular phone without an accompanying power to search–have been overtaken by the reasoning in the unanimous Supreme Court of Canada judgment in Vu.

The police in Vye searched the accused’s “iPhone 4” three times without a warrant, removing it from the accused’s pocket, doing a cursory search of the device the same day, and conducting a software-aided forensic examination nearly one year later. The accused did not contest the validity of the first two searches, but submitted his s. 8 Charter rights were breached by the software-aided forensic search. The trial judge agreed, finding the search was beyond the power to search incident to arrest because the police had not turned their minds to the permissible scope of the search before it was conducted; the search was unreasonable because it was overbroad; and, based on the reasoning in Hiscoe and Vu concerning the highly invasive nature of the search, the Crown required a warrant to conduct the forensic search of the content of the phone (at para. 8). The trial judge referred (at para. 37) to the ten-month delay between the arrest and the search as showing an absence of exigent circumstances and supporting his conclusion that prior authorization was required. The trial judge said: “[As] prior authorization was feasible … I can see no principled reason not to require the police to obtain a search warrant before conducting such a potentially invasive search as the download of contents of a smartphone seized upon arrest” (at para. 37). He quoted, in further support of his conclusion, the reasons of Justice Dickson (as he then was) in Hunter v. Southam Inc. (at 161): “[W]here it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure”.

Back to the case at hand, at the time the trial judge made his ruling in this case, Giles represented the law in British Columbia. No Canadian appellate court had suggested or found that a search of a smartphone incident to arrest, without a warrant, violated s. 8 of the Charter. Since then, the Supreme Court of Canada has recognized the highly invasive nature of searches of cell phones and computers because of the quantity and quality of personal information contained on these devices. Based on these judgments, one appellate court, the Nova Scotia Court of Appeal, and a British Columbia trial judge, have rejected the approach in Giles. Justice R.E. Levine said it seems that downloading the entire contents of a cell phone or smartphone, like the BlackBerrys in this case, seized on the arrest of the accused, after some delay, without a search warrant, can no longer be considered valid under s. 8 of the Charter as a reasonable warrantless search. The highly invasive nature of these searches exceeds the permissible scope for a warrantless search authorized under the common law as a search incident to arrest.

The interest of the state in law enforcement does not justify such a warrantless search. In this case, the searches were carried out more than two years after the appellant’s arrests. The delay itself demonstrates that none of the purposes that justify a warrantless search incident to arrest were relevant. Obtaining a warrant could not have interfered with preserving the evidence or with officer safety. In fact, there is no explanation for not obtaining a warrant except that the nature of the object searched had previously been likened to other objects – logbooks, diaries, notebooks – that had not been considered to give rise to a serious invasion of the accused’s right to privacy.

It now seems obvious that the individual’s privacy interest in the contents of a device such as a BlackBerry outweighs the state’s interest in law enforcement, and a warrantless search of those contents is unreasonable according to the test set out in Collins.

In summary, Justice R.E. Levine said the law as it stands today no longer permits police to conduct warrantless searches of the entire contents of an individual’s cell phone. The BCCA offered no comment on the permissible grounds of a “cursory” search, or other difficult questions pertaining to search incident to arrest and cell phones, as they were not before this Court.

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Filed under Recent Case Law, Search and Seizure

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