Cops can search cell phones on arrest. No warrant needed

[GostHacked]

http://www.cbc.ca/news/politics/cellphone-searches-upon-arrest-allowed-by-canada-s-top-court-1.2869587

Police searches of the cellphones in possession of suspects are constitutional as long as they relate directly to the arrests and police keep detailed notes, Canada's top court said today.

The Supreme Court of Canada split 4-3, with the minority arguing cellphones and personal computers are "an intensely personal and uniquely pervasive sphere" that needs clear protection.

The majority also found that passwords protecting phones don't carry much weight in assessing that person's expectation of privacy.

"An individual's decision not to password protect his or her cellphone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone," Justice Thomas Cromwell wrote.

This next bit really bothers me.

Searches should be done promptly upon a lawful arrest in order to serve the purposes set out in the ruling, the court said. Police must take detailed notes of what they have examined and how it was searched, and the nature and extent of the search must be tailored to the reason for it.

Police must also have "a valid law enforcement" purpose like:

Protecting the police, the accused or the public.
Preserving evidence.
Discovering evidence, like locating additional suspects.

The court noted this is not the only way to make the searches constitutionally compliant, and suggested Parliament may want to legislate how the searches can be done.

If the police are doing something wrong, they would want to delete vids or that kind of information from the phone. A phone/camera is the best weapon against police state actions.

But 'valid law enforcement' purpose can be ANYTHING. This is a terrible move.

Edited December 11, 2014 by GostHacked

[Boges]

Does that include a locked (passcode) cellphone? Can they compel you to unlock to phone. It's not in plain view if you need some sort of passcode to access information.

Some new cellphones can be locked by fingerprint.

[TimG]

Password protect your phone. You have a right to remain silent. Cops cannot force you to provide.

Edited December 11, 2014 by TimG

[GostHacked]

Password protect your phone. You have a right to remain silent. Cops cannot force you to provide.

It seems from the article, that the passwords are not a barrier to getting that information.

[Boges]

It seems from the article, that the passwords are not a barrier to getting that information.

You would need a warrant to access locked information wouldn't you? You would have to hack the phone to break the password unless you stumbled upon it.

[TimG]

It seems from the article, that the passwords are not a barrier to getting that information.

Read the judgement - not the media:

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14502/index.do

The court declined to create an exception to the power of search incident to arrest with respect to cell phones.

...

[The court] considered it particularly significant that the cell phone was not password-protected or otherwise “locked”, and suggested that it would not have been appropriate to search a locked phone without a warrant.

[GostHacked]

It's not a judgement is a f'n suggestion. The court is leaving it up to the government now to make rules on how all that goes down. So, that is not even set in stone, meaning that being a suggestion is not in fact law. Meaning, your rights can and will be violated.

Edited December 11, 2014 by GostHacked

[guyser]

This sucks, and judging by the score, 4-3, it was not an easy for the SC Judges to find.

And yes, the Police will have an emergency every damn time they want to look at the cell phone.

Catch a cop doing something wrong on video, all of a sudden you'll be eyed as another Unabomber.

[TimG]

It's not a judgement is a f'n suggestion.

As I said, you have a right to remain silent so the cops cannot compel you to give up the password without a warrant. They would need to hand it off to a tech to break the password. By that time your lawyer should be insisting that it be returned. A password is more than enough to prevent cops from going on fishing expeditions. Edited December 11, 2014 by TimG

[GostHacked]

As I said, you have a right to remain silent so the cops cannot compel you to give up the password without a warrant. They would need to hand it off to a tech to break the password. By that time your lawyer should be insisting that it be returned. A password is more than enough to prevent cops from going on fishing expeditions.

And as I pointed out, those guidelines in which you speak of are still to be determined. So at this moment, it should still be considered illegal to search a phone upon arrest without warrant .. no matter if the phone is locked or not. IF I have to follow process, I expect the cops to do the same. But that is not how it is.

[TimG]

And as I pointed out, those guidelines in which you speak of are still to be determined.

The "right to remain silent" is not a guideline. Invoke that and cops can't do anything - at least until your lawyer shows up.

[GostHacked]

The "right to remain silent" is not a guideline. Invoke that and cops can't do anything - at least until your lawyer shows up.

They do not need a warrant to go through your phone, locked or not. Trying to distract from that fact is not helping this situation. Remaining silent does not mean that they won't be going through your cell phone.

Alright TimG, you are under arrest. Hand over your phone now. (wanna play a scenario?)

[bush_cheney2004]

The "right to remain silent" is not a guideline. Invoke that and cops can't do anything - at least until your lawyer shows up.

Not in Canada...the police can continue to interrogate. No lawyer required....no protection from Section 7 of The Charter.

"Dragnet" and Miranda do not apply in Canada, just on the TV shows watched.

Edited December 11, 2014 by bush_cheney2004

[GostHacked]

DON'T FEED THE TROLL.

Stay clear of it and let's have a good discussion for once.

[TimG]

Alright TimG, you are under arrest. Hand over your phone now. (wanna play a scenario?)

I hand over my locked cell phone which is useless to the arresting officers. I invoke my right to remain silent and decline to answer any questions about my cell password. They could get a tech to crack the password but that takes time and it would not happen before my lawyer would insist on the return of the phone.

[dre]

Bad ruling. The cops shouldnt even be able to touch your cell phone without a warrant.

[TimG]

Not in Canada...the police can continue to interrogate.

But they can ask but they can't force you to answer. Legally no one is required to say anything to cops.

[guyser]

Not in Canada...the police can continue to interrogate. No lawyer required....no protection from Section 7 of The Charter.

Not true as written. Nice try though.

[bush_cheney2004]

But they can ask but they can't force you to answer. Legally no one is required to say anything to cops.

Right...but you have to be disciplined enough to stay quiet. The police can keep going at it...without any lawyer present.

[cybercoma]

As I said, you have a right to remain silent

You would think, but if the cops have a right to search your phone for evidence and your pal Harper decides to pass legislation requiring you to give them access to your phone, then by not giving them the password and remaining silent, you will be effectively breaking the law and have another charge to answer for.

But don't worry, you can take it to appeals court, then up to the Supreme Court and hope that they'll hear your case, as opposed to just pointing to this one and saying you don't have an appeal.

[TimG]

Harper decides to pass legislation requiring you to give them access to your phone...

An irrelevant hypothetical.

[GostHacked]

An irrelevant hypothetical.

Nope, it is simply an 'interpretation of the law'. A law should never need interpretation.

[Smallc]

No, it's hypothetical.

[On Guard for Thee]

Well Harper seems to do a faceplant into the constitution on a fairly regular basis. Could be we are just heading for another round of that. The lawyers get their hands in our pockets once again.

[GostHacked]

No, it's hypothetical.

A hypothetical interpretation of the law? That sounds worse.