Category Archives: Notetaking

Warrantless examination of cell phone upon arrest – Photographs of visible screen of locked seized cell phone.

The Alberta Court of the Queen’s Bench in R. v. Millett 2017 ABQB 9 has ruled that photographs taken by a police officer of the screen of a locked iPhone are admissible as such only provided the phone seizure and immediate examination was lawful, notwithstanding the screen’s immediate visibility. Of note, this investigation took place approximately six months after the release of the Fearon decision.

Millett was the driver and sole occupant of a rental vehicle which was stopped by the EPS to investigate an impaired driver complaint. The police activated lights and siren and Millett pulled over promptly and safely. The police did not observe any signs of impairment. When the roadside screening device showed that he had ingested no alcohol, the police initially arrested him on a possession of marihuana charge and on a prohibited weapon (brass knuckles — which were in fact wooden) charge.

Before leaving the arrest location, police searched Millett’s vehicle. No search warrant was ever obtained by the police, i.e. no warrant for the vehicle or for cellphones. On the driver’s seat of the rental vehicle, police found four cellphones. Inside the closed center console beside the driver’s seat of that vehicle, police found two cellphones; police found another two cellphones in the vehicle’s glove box. When police eventually examined the phones at the police station, approximately one and one-half hours after the seizure of the phones, police found that, of the 8 cellphones, 3 were on and functional. One of the three cellphones which was on and functional was found in the closed console; that telephone, an iPhone 5, was on, but locked; however, its settings allowed the display on the screen of communications received. In order to read the screen, police had to depress the “open” button and use a thumb to scroll up and down the information displayed.

The officer who took the photographs of the screen of one cellphone accessed the contact list in another of the functioning cellphones and found a phone number linked to the “AJ Stars” who had sent messages to the other phone. That officer did not record all the investigative steps she took with the seized cellphones: for example, she did not record her access of the contact list on one phone, or the removal of batteries to look for a pin number for the phone. She testified that she did not believe that she looked at any of the incoming messages on the telephone where she accessed the contact list, but that it was possible that she looked at incoming text messages and at the telephone call log on that telephone. She did not record who looked at the cellphones, or at their contents, although she believed that a Sgt and a Staff Sgt might have looked at the messages as well. She testified that there was no investigative urgency to the examination of the cellphones and that the police investigation of the situation was not hampered. The officer testified that the only urgency to looking at the screens of the various phones was that they might not have ongoing power, but she acknowledged that it would not have been difficult to obtain chargers for all of the cellphones. The officer did record something about the messages she accessed: she recorded that there were several messages from AJ and quoted “I need to smoke some shit but didn’t want him to go/meet at his home”.

The Crown’s position was that the messages on the telephone screen were “documents in possession”, access to which is lawful and use of which for the truth of their content — despite their hearsay quality — is also lawful. Millett objected to the introduction of the photographs because of the Crown’s failure to meet two of the Fearon requirements: the need for prompt access and documentation of the details of the search.

Justice J.B. Veit said that broad principles were adopted by the SCC in Fearon to clarify the way in which police forces must deal with all cellphone information. That court rejected the American bright line approach of requiring pre-authorization for all but the most exigent searches and, while repeating that warrantless searches are presumptively unconstitutional, imposed, instead, a nuanced, four-point test. That test has already weighed an individual’s right to privacy against important law enforcement objectives; a court applying the Fearon test should not re-weigh its foundations. The court applying the test can, however, take the circumstances of any breach of the test into account in deciding what remedy should flow from the breach. At para. 3:

“Since Fearon‘s careful balancing of an individual’s right to privacy against legitimate law enforcement objectives, no aspect of cellphone searches, including screens displaying incoming messages, can be treated as “documents in possession”. All police access to seized phones must conform to Fearon standards.”

Justice Veit did not accept the Crown’s contention that applying the Fearon test in the circumstances here would require the police to “avert their eyes”. On the contrary, in order to access the information tendered, the police had to depress the “open” button, and scroll up the screen. Here, the Crown had failed to prove that there was any need to promptly access these phones, i.e. to access them without a warrant, and the police officer who accessed the phones for information did not make detailed notes of what she examined and how the devices were searched. Merely providing photographs of the screen of one telephone is not adequate compliance with this requirement. In assessing the privacy issue, there were no detailed notes of who had what access to the telephone in question.

Millett argued that there was no valid law enforcement purpose here to the warrantless search because there was no need to protect the police, the accused or the public, there was no need to preserve evidence, and there was no need to “promptly” search any cellphone. The first two of these positions were not contested. The Crown did, however, take issue with the need for “promptness” in the circumstances here. Indeed, the Crown asserted that, objectively, there is always a need for urgency when dealing with cellphones, and observed that the exception for warrantless searches granted by Fearon is, at least in part, justified by the need for prompt police action. Justice Veit said there were two problems with the Crown’s position. The first is that the only evidence on this issue was given by the patrol officer who dealt with the phones and who testified that there was no need for the police to search the cellphones promptly. As the Crown’s expert testified, the records within the cellphones were preserved. The patrol officer testified that the police investigation “was not hampered” by any lack of prompt access to the cellphones. The second problem with the presumption that “objectively”, there is always urgency in dealing with cellphones is that the presumption would invalidate the balance which the SCC was attempting to strike when approving certain warrantless searches. In the result, it was clear that access to the phones did not meet the Fearon requirement for prompt access.

As Fearon observed, the fact that an individual cellphone owner has locked the device but allowed notification of incoming communications to be displayed on the screen does not mean that the owner has waived his right to privacy.

For these reasons, the information on the cellphone screen did not become part of the evidence on the main voir dire. At para. 5:

“In the circumstances here, i.e. in the absence of evidence that EPS had taken reasonable steps to inform its peace officers of the new law which applied to cellphone searches, and in the absence of an ability to determine the breadth of the invasion of Mr. Millett’s privacy, the introduction into the main voir dire of evidence by a breach of Mr. Millett’s constitutional rights would bring the administration of justice into disrepute.”

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The Importance of Making Notes

Every so often, a new case highlights the importance of notebooks and reminds us of the pitfalls and consequences of failing to make notes during an investigation (call). This latest case is not posted to serve as “case law” or precedent, but rather as a reminder to officers.

R. v. Fewer, [2016] N.J. No. 312 – Fewer was released on an undertaking given to a peace officer. The undertaking included a condition prohibiting Fewer from the “possession and consumption…of alcohol.” Subsequent contact with the police led to Fewer being charged with the offence of breach of undertaking, contrary to section 145(5.1) of the Criminal Code. At Fewer’s trial, a police officer testified that he had contact with Fewer and another individual. The officer testified that he smelled alcohol coming from Fewer’s breath. However, in the notes this officer made in relation to what occurred, there was no reference to Fewer being present, let alone any smell of alcohol being detected from him. Fewer argued that the absence of any reference to him in those notes should cause the court to doubt the reliability of the officer’s evidence.

Provincial Court Judge W. Gorman cited Wood v. Schaeffer, [2013] 3 S.C.R. 1053, where the the Supreme Court of Canada said police officers taking detailed notes should not be underestimated, indicating that it had “little difficulty” in concluding that police officers “have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation” (at paragraph 67).  He also cited R. v. Seguin, [2016] O.J. No. 3813 (C.J.), where it was noted that the “failure to contemporaneously record important information may result in the court being unable to accept the viva voce evidence in that regard” (at paragraph 41).

At trial, the officer testified that on the day in question, he was assisting a fellow officer and he heard someone “screaming” from inside the other officer’s police vehicle. He indicated that he opened the back door of the vehicle to see what this person “wanted” and to “see what was wrong.” He testified that he could “smell alcohol on [this person’s] breath” and that he was “upset.” The officer did not describe whether the smell was a strong or weak one. He did not indicate how close he came to Fewer, whether he spoke to Fewer, or whether Fewer spoke to him.

On cross-examination, the officer was referred to the notes he made concerning this incident. The notes referred to Mr. C; to Mr. C being advised of his right to contact counsel; a smell of alcohol coming from Mr. C; and Mr. C being arrested. However, the notes contained not a single word in relation Fewer. Judge Gorman was concerned about the lack of reference to Fewer in the officer’s notes. The officer took the time to make notes concerning his contact with Mr. C, but as pointed out earlier there was not one word spared for Fewer. As a result, the officer had to rely entirely on his memory. The entirety of the officer’s evidence left the Judge with a reasonable doubt as to whether he smelled alcohol coming from Fewer. The charge laid against Fewer was dismissed.

If interested, other cases such as R. v. Zack, [1999] O.J. No. 5747 (C.J.), R. v. Makhota, [2004] O.J. No. 5415 (C.J.) and R. v. Bailey, [2005] A.J. No. 790 had similar findings that evidence “not contained in officer’s notes may be suspect or given less weight”. This does not mean that every time an officer’s notes are found wanting that that officer’s evidence will be suspect (see R. v. Gill, 2015 ONSC 7872, at paragraph 45 and R. v. Broxterman, 2016 ONCJ 285, at paragraph 17), but why risk it…

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