Canada's top court rules cellphone searches legal, with caveats

Thu Dec 11, 2014 1:03pm EST
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TORONTO (Reuters) - Canada's Supreme Court ruled on Thursday that police may search a suspect's cellphone without a warrant under specific conditions that safeguard the broader constitutional right to privacy.

The 4-3 decision mirrored the deep divisions of lower courts in both Canada and the United States as they try to balance privacy rights in a digital age with law enforcement's need to protect evidence.

The Ottawa-based court said that limited searches were lawful in some circumstances. These include that the arrest itself is lawful; the search is deemed necessary to locate and preserve evidence or catch other suspects, protect the police, the suspect or the public; and police take detailed notes on how they examine the device.

"To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest," Judge Thomas Cromwell wrote on behalf of the majority.

"The weighty privacy interest that an arrested person has in a personal digital device will outweigh the state interest in performing a warrantless search incident to arrest, except in exigent circumstances," the majority opinion said.

In practice, this will mean only recently sent or drafted emails, texts, photos and the call log will typically be available, the court said.

The court's dissenting voices said the decision would result in a breach of privacy and tend to "bring the administration of justice into disrepute."

They noted that other personal devices such as tablets, smart watches, laptop computers and smart glasses would likely be subject to the same treatment.

"Unwarranted searches undermine the public's confidence that personal communications, ideas and beliefs will be protected on their digital devices," they wrote.   Continued...