Of interest to educators is a case involving teenagers allegedly dealing drugs in the teachers' parking lot of W.P. Wagner School on a summer evening in Nipawin, Saskatchewan. In R v. Jones, 2015 SKPC 29, the accused were arrested following a search of their car and cell phone. The Provincial Court of Saskatchewan decision, dated March 3, 2015, includes a succinct summary of the case in the opening paragraph:

Two teenagers are sitting inside a car in a school parking lot. A series of vehicles drive up to them, exchange something and then drive off. The police stop the car being driven by one of the teenagers, take away his cell phone and go through it. This case asks whether the police have the authority to do this.

The teens were charged with trafficking and possession of marijuana. They challenged the admissibility of the cell phone evidence, among other challenges, such as arbitrary detention arising from the vehicle stop. This article focuses on the Court's review of the warrantless cell phone search by police.

The RCMP officers who searched the teenagers' phones were responding to a 911 call made at 7:10 in the evening. The caller reported a white car parked in the school parking lot, and other vehicles pulling up alongside with exchanges taking place, and subsequently driving away leaving the white car in the parking lot. The obvious inference is that the occupants of the white vehicle were selling drugs in hand-to-hand exchanges with each car that drove up alongside.

The Court had no difficulty finding that the officers had reasonable suspicion of criminal activity. Upon observing the white car, there was no other explanation for its presence in the school parking lot. The Court concluded that “these were a succession of quick exchanges between cars in the teachers' parking lot of an elementary school in the evening in the middle of summer when the school was closed and no one else was around. It is more possible, and likely, that they were selling drugs from the Crown Victoria vehicle than they were selling items off ebay or passing notes from class at summer school.”

Supreme Court Test For Police Searches Of Cell Phones

As reported in the Winter 2015 Edition of the BLG Education Law Newsletter, the Supreme Court of Canada developed a new test for police searches of cell phones. In R v. Fearon, 2014 SCC 77, the Supreme Court considered whether the existing power for police to search pursuant to a lawful arrest extends to cell phone searches.

At his criminal trial for armed robbery, Mr. Fearon argued the evidence from a police cell phone search was inadmissible because police did not have a warrant. Mr. Fearon challenged the cell phone search under section 8 of the Canadian Charter of Rights and Freedoms, which states “Everyone has the right to be secure against unreasonable search or seizure.”

The Supreme Court modified the existing common law framework for a lawful search and seizure, which states that a search incidental to an arrest must be:

  • Founded on a lawful arrest;
  • Be truly incidental to that arrest; and
  • Be conducted reasonably.

After Fearon, the new test for lawful search and seizure of a cell phone by police is:

  • The arrest was lawful;
  • The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in
    • Protecting the police, the accused, or the public;
    • Preserving evidence; or
    • Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest.
  • The nature and the extent of the search are tailored to the purpose of the search; and
  • The police take detailed notes of what they have examined on the device and how it was searched.

Since Fearon, lower courts have been applying the new test in criminal cases where the evidence obtained as a result of a cell phone search is critical to a conviction.

Saskatchewan Court Applies Test In Fearon

The Court in R v. Jones concluded that the police complied with all four requirements of Fearon, and decided the officer's search was limited, cursory and incident to a lawful arrest. Below is a detailed analysis of how the Court applied Fearon.

The arrest was lawful

The Court decided the accused were lawfully arrested based on the officer's observation of drug trafficking paraphernalia in plain sight and the smell of raw marijuana.

They searched the car and seized items such as baggies of individually rolled tinfoil balls, with roughly one gram of marijuana in each, marijuana pipes and cash.

One of the officers also found a cell phone belonging to one of the accused. The phone was on, and was not password protected. The officer viewed two recent text message conversations. In one text message conversation, an individual was asking the owner of the phone if they could buy a “30”. In another text message conversation, a different individual was asking to buy a “40”. The officer interpreted these messages as arranging to buy marijuana. The officer searched the phone again when at the police station, and viewed two similar text messages sent around the time the 911 call was made.

The search is truly incidental to arrest.

The Court decided that the initial search, which took place immediately after arrest, and another search six hours later fell within a reasonable period of time after the arrest such that they are “still connected and incidental to arrest.” There was no substantial delay.

The nature and the extent of the search are tailored to the purpose of the search.

This aspect of the Fearon test was easily met. The officer was investigating marijuana trafficking, commonly referred to by law enforcement as “Dial-a-Dope”. The Court noted that many cases involve admitting text messages as evidence in drug trafficking cases, stating “text messaging is the lifeflood of Dial-A-Dope drug dealers.”

The Court concluded that the officer's search was sufficiently tailored as required by Fearon, stating as follows:

… focussed and limited solely to the text messaging function of the phone. It consisted of him thumbing through some recent messages on the phone's text messaging feature. At no point did he access the phone's e-mail, photos, contact numbers, call log or any other applications on the phone.

The police take detailed notes of what they have examined on the device and how it was searched.

As stated in Fearon, the record of the search should generally include “the applications searched, the extent of the search, the time of the search, its purpose and its duration.” The police officer wrote down word for word the content of the text messages he searched at the scene of the arrest, and immediately following his return to the station. That was the extent of his search, and the Court found his record keeping sufficient.

Police Should Not Have Sent Cell Phone Away For Further Analysis

Although the search of the cell phone was lawful, the police were criticized by the Court for the subsequent action of sending the cell phone away for forensic analysis of the entire contents. The officer had already transcribed the text messages he felt indicated the accused were trafficking drugs. If he was concerned that the cell phone contents could be remotely wiped, he could have preserved the evidence by less invasive procedures, such as removing the battery and network card, or storing the phone in a “Faraday box” 1 while he waited for a warrant.

The Court decided that the officer's decision to send the cell phone away for forensic analysis “runs afoul” of the third requirement in Fearon, i.e. the tailored search. The following paragraph succinctly expresses the Court's concerns:

Sending the phone away for analysis really runs afoul of condition #3 in Fearon. The search of the entire contents of the phone is so vast and extensive it cannot logically be said to be proportional or tailored to the original purpose for searching the phone incidental to arrest to gather evidence of drug trafficking. It is not necessary to go through all the applications on the phone, including all of the holder's personal photos, contacts, calendar, call logs and internet browsing history in order to find evidence of drug trafficking. As such, it cannot reasonably be said that this mobile device data analysis is merely an extension of the police authority to conduct a search of an item seized incident to arrest. The police are not merely looking inside someone's car. They are looking inside someone's life. There being no legitimate purpose tailored to such an invasive search, I find the forensic analysis of the phone constitutes a breach of Hailey Jones' s. 8 Charter right.

Ultimately, the Court decided in this particular case to admit the cell phone evidence even though the forensic analysis runs afoul of the third part of the Fearon test. The officer was acting in good faith when he sent the phone for analysis, despite not having a warrant.

Significance For Educators

The lesson for educators is that the courts are likely to focus on whether a search of a cell phone is tailored. Searches that are not tailored run the risk of being viewed as fishing expeditions that go beyond the purpose of the search. As the Court stated in Jones, a search of a cell phone is not merely looking inside someone's car, but inside their life. Overly broad searches that review personal information will be considered intrusive and invasive. In the criminal context, the risk is that the information would not be admitted as evidence, thus jeopardizing the conviction. For educators, there is a risk that it would be considered unfair or improper to use information obtained during broad searches of a student's cell phone.