Court Says Cops Can Search Phones Without A Warrant If They’re Not Password Protected

Here’s an interesting ruling from the Court of Appeals in Ontario. Yesterday they ruled that it is legal to search a cell phone without a warrant if the phone in question is not password protected:

On Wednesday, Justice Robert Armstrong, supported by two other judges, dismissed an appeal of an armed robbery conviction by Kevin Fearon, who agued his rights against unreasonable search had been breached.

After his arrest on suspicion of taking part in a Downsview jewellery heist in 2009, a police officer conducted a pat-down search and found a cellphone in his pocket.

After manipulating the phone, police officers found it contained photographs of a gun and cash as well as an incriminating text message.

The police officers involved believed they had a right to inspect the phone without a warrant.

Fearon challenged the warrantless search of his cellphone, which was not protected by a password, claiming it breached his Charter rights.

But the court ruled Wednesday his rights were not breached. Had the phone been password-protected or otherwise locked to outside users, however, police would have needed a search warrant to examine its contents.

“While I appreciate the highly personal and sensitive nature of the contents of a cellphone and the high expectation of privacy that they may attract, I am of the view that it is difficult to generalize and create an exception based on the facts of this case,” Armstrong wrote.

So, one can argue that the take home message (at least for now) is that if your someone who has something to hide, you need to password protect your phone. I would argue that you need to password protect your phone just to keep the data on it away from prying eyes regardless of whether you have something to hide or not. That to me is just plain common sense that has nothing to do with the possibility that the police might search the phone. Now this might not be the last word on this. The lawyer for Kevin Fearon is considering appealing this decision. Stay tuned.


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