A provincial appeals court in Canada has ruled that police can search the mobile phone of an arrested person only if there is no password on that phone. With a digital locking mechanism, however, officers must get a warrant.

“In this case, it is significant that the cell phone was apparently not password protected or otherwise ‘locked’ to users other than the appellant when it was seized,” the Court of Appeal for Ontario, wrote in its unanimous decision. “Furthermore, the police had a reasonable belief that it would contain relevant evidence.”

The case revolves around a woman operating a jewelry stall on July 26, 2009 at a flea market in Toronto’s Downsview neighborhood. Toward the end of the day, as the victim was packing up, she was held at gunpoint by two men and was ordered to open her car. The men took an estimated CAD$10,000 ($9,800) to CAD$40,000 ($39,200) worth of jewelry.

A Toronto police officer, based on eyewitness accounts and information that she filed with the authorities, drove to a nearby apartment building where he thought one of the suspects might live. More officers later arrived for backup.

Kevin Fearon and Junior Chapman were quickly identified and arrested on the charge of robbery with a firearm. They were also advised of their rights to counsel. (Later, at the station, Fearon confessed to the robbery, although he claimed that the firearm used was fake.)

Saving a text message

At the time of arrest, Fearon was given a pat-down search, which yielded, according to the court: “the discovery of the cell phone containing the photographs of a gun and cash as well as an incriminating text message: 'We did it were the jewlery at nigga burrrrrrrrr.'"

Sgt. Steve Hicks accessed the photographs and the text messages.

The appeals courts decision continues:

When Sergeant Hicks returned to the police station, he gave the phone to another officer who attempted to determine whether the incriminating text message had been sent to anyone. The officer determined that the message was a draft and therefore had not yet been sent to anyone. He hit the “save” button in order not to lose the text message. After about two minutes, the phone was returned to Sergeant Hicks who was told to look through it for recent calls or contacts. In the course of the night and next morning, as the investigation progressed, officers made additional checks of the phone. At trial, however, the only data from the phone relied upon by the Crown were the photos and the text message. The police officers involved in the examination of the contents of the cell phone believed that they were entitled to proceed without obtaining a search warrant. Detective Nicol, in particular, testified that all inspections of the cell phone were done at his direction or with his approval. From his experience, cell phones found in circumstances such as the appellant’s contain text messages sent between co-accused that will assist police in recovering stolen property and apprehending suspects. His evidence at trial underscored the importance of acting quickly following the robbery. Many months later, one of the police officers involved in the investigation believed that there was a court case that held a search warrant was required to download the contents of a cell phone. He therefore applied for a warrant. He included in the information to obtain the warrant the fact that the cell phone had been previously examined. The search warrant was issued and the phone was re-examined and the photos and text message entered into evidence. Counsel for the appellant at trial did not challenge the issuance of the search warrant.

However, Fearon’s counsel did argue that the Toronto Police “exceeded their power when they retrieved the photographs and the text message from the cell phone. This argument was premised on the theory that the expectation of privacy in the contents of a cell phone is so high that a warrant is required before the contents are examined.”

That argument was rejected and the trial judge found that the officers were acting in good faith.

Use a password

In the United States, there is no national standard concerning how much protection a mobile phone password gives someone after they’ve been arrested. This Toronto case seems most similar to a 2011 decision from the California Supreme Court, which ruled that police do have the right for warrantless search of a phone during an arrest.

In short, password-protect your phone and know your rights. The Electronic Frontier Foundation puts it this way: