But the officer found that, while he was legally able to seize the device, the evidence he found couldn't necessarily be used in court.

As hand-held electronic devices grow more ubiquitous, the information they store, from photos and text messages to call histories, is playing an increasingly larger role in criminal cases.

But digital evidence, like all evidence called during trials, must be tested, and two recent Ontario court rulings underscore what has long been true in wiretap cases: police can tap your phone lines, but that doesn't mean what they hear will be admissible in court.

This fall, Toronto defence lawyer Darren Sederoff argued the warrantless search leading to the discovery of a text message infringed his client's (Section 8) Charter rights to be secure against unreasonable search or seizure.

The judge agreed.

In his legal arguments, Sederoff cited a pre-trial ruling earlier this year by Superior Court Justice Brian Trafford, who found police had improperly seized a cellphone belonging to a murder suspect.

"A cellphone was the functional equivalent of a locked briefcase in today's technologically sophisticated world," Trafford wrote in his June 17, 2009, ruling.

The court case involving a text message began July 27, 2007, around 12:30 a.m. when police pulled over a Hyundai on Front St.

Officers began to investigate "what appeared to be a stolen car" and found a loaded firearm wedged behind the back seat, Crown attorney Glen Crisp said.

One of the four people arrested was Ishamar Savory, 24, a former Scarborough high school football star.

Charged with gun possession, Savory was taken to 52 Division while one of the arresting officers, Const. John Antonelli, searched his iPAQ, a hand-held device that functions as a cellphone. It was on and wasn't password-protected.

"I was verifying certain information on the cellphone to ensure it was his," Antonelli testified during pre-trial arguments before a jury was picked.

He told court he did "three or four clicks" and the following text message appeared: "I was on the block I had a small ting 4 u holla don't get excited a small ting best I can do."

Antonelli told court he believed the word "ting" related to a firearm. The officer said he didn't think he needed a search warrant.

During pre-trial legal arguments Sederoff argued that what happened was a "systematic disregard of privacy rights," adding with a hand-held device there is an even "higher reasonable expectation of privacy" than with a cellphone.

Crisp argued Antonelli's search of the iPAQ was lawful because it was "cursory" and he was not "looking through every single piece of information that was available." He noted case law says police don't need a warrant to search a wallet.

Superior Court Justice Thomas Lederer, however, agreed with Sederoff, citing Trafford's decision in June that said while police have power to seize a cellphone it "does not include a power to examine the contents of the cellphone without a prior judicial authorization, absent exigent circumstances."

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Despite their rulings, Lederer and Trafford turned down defence motions to exclude evidence taken from the cellphone. Lederer found the conduct of the officer who retrieved the text "was not on the serious end of the scale," nor did he act in "bad faith."Nonetheless, the jury didn't hear expert opinion about the text message after it was excluded on other legal grounds.

Savory and another man were convicted of gun possession.