Cell phones are not just telephones these days. Smart phones in particular can contain a wealth of personal information including, not only the telephone numbers of those you have called, but pictures, direct links to your social media sites, text messages, GPS information as to where you have been and much more. But if that smart phone is not locked or password protected, the police may be able to look through it, without a warrant, as a search incidental to an arrest.

The Ontario Court of Appeal, in R. v. Fearon 213 ONCA 106 recently ruled on just such a case. Mr. Fearon was arrested shortly after a robbery, with a gun, of a jewelry sales lady in Toronto. Upon arrest, the police conducted a pat down search and found his cell phone. The cell phone was not locked or otherwise password protected and the officer proceeded to look through it, checked the text messages and found an incriminating message as well as photographs of a gun and cash.

The issue at trial, and subsequently before the Court of Appeal was to whether the evidence that had been obtained from the cell phone at the time of arrest ought to be excluded because the search of the phone was a breach of Mr. Fearon’s 8 rights under the Charter. Both the trial judge and the Court of Appeal determined that if the search of the cell phone otherwise met the criteria of  search incidental to arrest, and the phone was not locked or otherwise password protected, that the police were within their rights to conduct a cursory search of the phone at the time of arrest. In this case there were reasonable and probable grounds to arrest Mr. Fearon and that the police had a right to search him at the time of the arrest and take anything from him that they reasonably believed might constitute relevant evidence. The phone was turned on and not password protected.

A warrantless search of a cell phone, incidental to arrest, must, however, be limited to a “cursory” examination, presumably limited to a look through the contents to ascertain if it contains evidence relevant to the offence for which the individual has been arrested. A detailed search, or following links to social media sites would require a warrant. If the phone is locked or password protected, a warrant is needed to access the contents of the telephone. Readers interested in this case may also want to review the decision of the Court of Appeal in R. v. Manley 2011 ONCA 128 and the decision of the Ontario Superior Court in R. v. Polius [2009] O.J. No. 3074