February 16, 2011
Over the December holidays, I succumbed to Apple’s iPhone 4: 9.3 mm thin, recyclable aluminosilicate glass, retina display, A4 chip, Camera & LED…it’s everything I ever wanted in a phone! Moreover, I get a solid half an hour of Angry Birds playtime on my subway rides up to Osgoode Hall Law School, conveniently located on York’s Keele campus. After eight years of being anti-smartphone, I revealed my new gadget to a long-time friend over lunch. After handing it over to him, his first comment about my new gadget was, “I’m surprised you haven’t password protected it yet.”
Later that week, after much deliberation over a new 4-digit numerical password that I wouldn't forget, I password protected my phone. After 10 incorrect password attempts, all the data stored on the phone is erased. Without a password, emails, photos, text messages, agendas, contact list, bank account number – all this data my smartphone contains would be accessible to anyone who obtained access to my phone. However uninteresting this information may be to someone else, it’s not something I want others to see. In legal jargon, I would say I have a reasonable expectation of privacy in the stored data contained in my cell phone.
Say Cheese!
On Valentine’s Day 2011, the Ontario Court of Appeal ("ONCA") released its decision in R v Manley, 2011 ONCA 128. On November 13th, 2006, the appellant was arrested for the robbery of a music store and outstanding arrest warrant for break and enter. Pursuant to a frisk search incident to arrest, the police seized a cell phone from the appellant’s person. In order to identify the lawful owner of the cell phone, the police opened the phone and in the process searched its stored data. As a result of this search, they found a photograph of the appellant holding a sawed off shotgun taken the day after the music store robbery. The photograph was copied onto a police officer’s cell phone, downloaded to a computer, and printed. A warrant was subsequently obtained to search the contents of the phone.
What Happened on Appeal?
On appeal, one of the issues raised was that the trial judge erred by rejecting the submission that the police breached the appellant’s s. 8 Charter rights by searching the stored data on the cell phone and that the photograph found on the phone should have been excluded under s. 24(2) of the Charter. The ONCA found that the police had a lawful basis to perform a cursory search of the cell phone to determine whether it had been stolen. The basis for this finding was that cell phone was relevant to the offence for which the appellant had been arrested, the break and enter, and the fact that the police had confidential information that the appellant had used stolen phones in the past. The ONCA made it clear that a search of the stored data in the phone could not be justified on the basis that the police were simply trying to determine who owned the phone. It was vital to the decision that the telephone number of the cell phone was identified after the discovery of the photograph; had the discoveries been reversed, the case would have been completely different.
In reaching this conclusion, the ONCA did not outline a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest. However, Sharpe J.A. in obiter noted at para 39:
An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.
The court then upheld that the warrant issued following the finding of the photograph was reasonable. No breach of s. 8 was found.
Thoughts: Scope of the Common Law, Strip Searches & Technology
In the course of an arrest, there is a limited power of the authorities to conduct a search of the individual incidental to the arrest. The common law holds that police have a power to search a lawfully arrested person and to seize anything in his/her possession or immediate surroundings to guarantee the safety of the police, the accused and the nearby public; prevent the prisoner’s escape; or provide evidence against him (ensure evidence found on the accused and in his immediate surroundings is preserved). Considering that the common law search incident to arrest power does include the power to strip search (albeit subject to limitations) it is difficult to see how the privacy interest in one’s cell phone will be put above the privacy interest in one’s body or person.
In order for a strip search to be justified as an incident to arrest, it is necessary that (i) the arrest itself be lawful and (ii) the search must be incident to arrest, i.e., the search must be related to the reasons/purpose for the arrest itself. While a common law search incident to arrest does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself, in order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.
While I do not think the test for strip searches incidental to arrest should be applied to cell phone content searches incidental to arrest, I do believe that the power to lawfully seize a cell phone incidental to arrest should not include a warrantless power to examine its contents. The only purpose behind the common law power of searches incident to arrest that supports searching the stored data of a cell phone is to ensure that evidence found on the accused and in his immediate surroundings is preserved. Unless there is a link between the cell phone data, the reason for arrest and the purpose behind the common law search power incidental to arrest, police should obtain a warrant in advance.
While the ONCA did not delineate the common law power in this decision, it is inevitable that our courts will have to come up with a solution to this problem. In this decision, Sharpe J.A. notes that “the traditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of modern technology.” As personal handheld devices gain more and more computing power, it will be interesting to see how far this search power will extend. In the meantime, until the test is defined, my common sense would indicate that the best option for maximum privacy protection would be to password protect your phone and to not reveal the password to anyone, unless a warrant is produced.
7 Comments
Actually, reading the decision, it seems like the smart thing to do isn't to password-protect your phone but to engrave your name somewhere on the outside so that the police can "ascertain the rightful owner" without pawing through your data.
Something about the trial decision doesn't sit right with me. I have a hard time imagining that the police just "came upon" the photo while looking for the name of the rightful owner. The police found the phone number AFTER finding the photo. It strikes me as improbable that they were looking for the phone number in the photo directory.
@Mike: I agree with you that it is questionable that the police just came upon the photo while looking for the name of the rightful owner on the phone. In this case, the trial was held in front of a judge and jury, and given the position of trust and authority that police hold in our society, it’s possible that the jury gave a lot of weight to the police evidence. If it comes down to the word of the police to provide the court with the reason for why they were looking at the pictures, I would think it then becomes an issue of credibility, and that can be a tough call. For example, I personally don’t think someone with a criminal record is necessarily less credible than someone without a criminal record, but I believe that’s a tactic frequently used to attack the credibility of a witness. I also couldn't find an online version of the trial decision - if you have the time, please post it on the comments, so people can access it! Thanks for your comment!
you law students kill me
did anyone bother to argue/point out that a search of the photos on the machine can not possibly have bearing on any effort to determine ownership?
I mean go to the point instead of bore me with miles of blah blah blah
@ZZZZZzzzz: The general approach of my post was not to critique the strengths of submissions made at trial, but more so to discuss the scope of the search power incidental to arrest. Your point in noticing the disconnect between ownership of the phone and photos on the phone is valid. The explanation for how the police came across the photographs are outlined at para. 29 of the OCA decision. Also, in response to your comment, in my post I indicated the following: “unless there is a link between the cell phone data, the reason for arrest and the purpose behind the common law search power incidental to arrest, police should obtain a warrant in advance.” It is here where the opportunity is left open for submissions to be made on whether the “photos on the machine” (i.e. data on the phone) are connected to the reason for arrest (i.e. stolen cell phones connected to break and enter / determining ownership).
The trial transcript would be interesting.
I know (for example) on my blackberry how many steps it would take to look at the photos and how unlikely it would be to come across photos while looking for addresses.
But I also imagine the oldest most tech-unsavvy litigators (the ones who don't have cell phones or computers) in my office acting for the defence and not even thinking to cross-examine in that area. Or if the judge was not up to date on tech, maybe the importance of the cross was lost on him or her. Paragraph 29 which refers to "pushed various scroll and other buttons" indicates that it might have been the latter.
Great discussion and an equally impressive piece of writing in the initial article by Ms. Achoneftos. The practical realities of "password secure" your device to prevent its unreasonable search by authorities is positively Orwellian, and conjures up images which 'should send a chill down the spine of all freedom-loving Canadians'.
For those of you interested in this issue at a little greater depth than the Ontario Court of Appeal felt the factual findings at trial rendered necessary in Manley, have a quick read through some of the authorities cited by the Court like the decision of Mr. Justice Trafford in Polius (one very comforting end of the spectrum) and our Associate Chief Justice in Giles ('the police were allowed to seize the Blackberry incident to a lawful arrest--what good would it be to them if they couldn't download 164 emails from it without a warrant'). Fortuitously, the "computer searches are different' musings of such great minds as Alan D. Gold's have not fallen completely on deaf ears. Madame Justice Bruce gave us a great section 8 win on a cellphone/computer search in a case called Regina v. Vu [2010] B.C.J. No. 1777 (Crown appeal filed but not yet inscribed for hearing) and the great Mr. Justice Frankel just last week overturned convictions on gun and contraband possession charges because of a digital camera search which he felt violated section 8 and should have seen the fruits excluded under the re-formatted section 24(2) test (Regina v. Caron 2011 BCCA 56) .
What all of these cases (and most if not all of the comments above) underscore is the need to get all of the necessary factual findings made for your Charter application AT TRIAL. A lot of the jurists hearing these cases have no real sense whatsoever for the technologies involved in some of these devices like Ms. Achoneftos' fancy new phone. If you don't lay the factual foundation for the intrusiveness of the search in plain evidence at the trial, good luck with your own conjuring up of Orwellian search images for the trial or appellate judge(s).
It is not news that criminals use technology and mobile electronic devices to commit crimes and therefore, any such device(s) seized on a suspect (with an outstanding warrant for arrest) should be thoroughly reviewed under exigent conditions (warrantless search to prevent destruction and/or concealment of relevant evidence). In arresting someone on an outstanding warrant the cell phone becomes part of the booking inventory and thus, material evidence of a possible crime (stolen) and can be searched at the police station to reveal the photo.
What is more disturbing to me is the fact that this individual had preserved a trophy of himself holding a sawed off shotgun? Don't serial rapists and murders collect trophies of their victims? I hope a forensic psychiatrist evaluates this individual who seems to have aspirations for a life of violent crime which he preserved on a cell phone. In my opinion, this behavior is a very serious red flag which should not be ignored.