Can the Police Search my Phone?
By Carolina Salles Quaresma, Articling Student
Nowadays, we literally have the world in our hands. With a cell phone in hand, we can talk to anyone anywhere in the world, deposit a cheque, record a video, or take a photo of a special moment. Access to private data such as bank account information or personal photos and videos can be potentially dangerous if in the wrong hands.
Under what circumstances can police search my phone without a warrant?
In R v Fearon, 2014 SCC 77, the Supreme Court of Canada ruled that the police can view some information in cell phones without a warrant when making an arrest.
There are four conditions that need to be met:
a) The arrest must be lawful;
b) the search must be truly incidental to the arrest;
c) the nature and the extent of the search must be tailored to its purpose;
d) and the police must take detailed notes of what they examined and how they examined the device.
Potential police abuse while searching cell phones without a warrant is a great concern to the defence.
Are the police limited while searching my phone?
Yes, the evidence must pertain to the crime they are searching for. That means that the police are only allowed to access content that is related to the offense of the search.
Do I have to give the police my cellphone password?
No, you are not obligated to give the police your cell phone password. You are allowed to refuse to give your password due to your right to remain silent and not to be obligated to give evidence against yourself.
Can the police search my phone if I refuse to give the cell phone password?
Yes, the police can use other methods to unlock your cell phone. Police have the technology to crack into the most secured cell phones.
Can police search the entire contents of my cellphone?
No, the search must be tailored to its purpose. For example, if the Police are searching for evidence related to a drug crime, they must be limited to the evidence of this offence, and they cannot browse your phone looking for incriminating evidence.
Are the police allowed to delete anything off of my cellphone?
No, police cannot delete any photograph, video, email, text, call, or documents.
If I consent to a search in my vehicle, house, or bag, does that mean I have given permission for the police to search my phone as well?
It always depends on the situation, however, in general, if your phone is inside the vehicle or the house, you have technically permitted the police to search your cell phone. In order to avoid this situation, you can inform the police explicitly that you are agreeing only with a search of the vehicle or home, not of your cell phone.
What happens if the Police find evidence of another crime?
The acceptance of evidence is decided only when the matter goes to Court, so the evidence may be used against you or not depending on the circumstances of the case.
If you have any questions whatsoever regarding your rights when it comes to a police search, please call our offices at 416-304-1414 or comment below.