Three dissenting justices said the police must get a search warrant in all cases except in rare instances where there is a danger to the public or the police, or if evidence could be destroyed.
It is the first Supreme Court ruling on cellphone privacy, an issue that has spawned a series of divergent lower court rulings.
The high court dismissed the appeal of the 2009 armed robbery conviction of Kevin Fearon, who argued unsuccessfully that police violated his charter rights when they searched his cellphone without a warrant after he’d robbed a Toronto jewelry kiosk.
The court agreed that the police had in fact breached Fearon’s rights, but the evidence against him on his cellphone should not be excluded.
“The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence,” Justice Thomas Cromwell wrote for the majority.
“That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence.”
Cromwell said the court was trying to strike a balance between the demands of effective law enforcement and the public’s right to be free of unreasonable searches and seizures under Section 8 of the Charter of Rights and Freedoms.
“In my view, we can achieve that balance with a rule that permits searches of cellphones incident to arrest, provided that the search – both what is searched and how it is searched – is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.”
The ruling laid out detailed criteria to guide police.
The arrest must be lawful, and the search must be “truly incidental to the arrest” and “based on a valid law enforcement purpose,” it said.
The ruling defined valid law enforcement as: protecting the police, accused or the public.
That includes preserving evidence and discovering new evidence, “including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cellphone incident to arrest.”
Moreover, the ruling said a phone can subjected to a warrantless search if the “nature and the extent of the search are tailored to the purpose of the search” if police “take detailed notes of what they examined on the device and how it was searched.”
That lack of proper note-taking was the one flaw the high court identified in Fearon’s arrest, but it said that wasn’t enough to exclude the evidence that was gathered from his phone.