I have written before on this blog about the Supreme Court of Canada’s split 4-3 ruling in R v Fearon, [2014] 3 SCR 621 where Justice Thomas Cromwell for the majority reached the startling conclusion that a police fishing expedition of a cell phone incidental to a lawful arrest complies with s. 8 of the Charter of Rights so long as the police take notes for post facto review. And I have also written about the unanimous opinion of the Supreme Court of the United States in Riley v California, 573 US 1 (2014) where Chief Justice John Roberts held that a warrantless search and seizure of digital contents of a cell phone during an arrest violates the Fourth Amendment and is unconstitutional. So I will begin by letting Toronto criminal lawyer Nader Hasan do the talking.

In an article titled A Step Forward or Just a Sidestep? Year Five of the Supreme Court of Canada in the Digital Age (2015), 71 SCLR (2d) 439 Mr. Hasan makes the point, at p. 453, that the problem with Fearon is that Justice Cromwell was trying to, “…squeeze a Digital Age problem back into an Analog World box.” Mr. Hasan goes on to make this observation about digital life, at p. 454: “Canadians increasingly engage in private text-based communications using their cell phones. More than any other computing device, cell phones contain massive amounts of private communications. In 2008, 44 per cent of Canadians said that text messaging was the most common activity they performed on their cell phone aside from voice calls; 11 percent said e-mailing; and 6 per cent said instant messaging. Since 2008, Canadians’ use of text messaging has more than quadrupled. In 2012, the total text messages sent in Canada numbered 96.5 billion.”

I thought it is time to look back at Fearon by examining how Riley is being applied by American judges in evidence suppression hearings. My hunch was that Riley would be strictly applied given the high protection of cell phone privacy that Americans enjoy under the Fourth Amendment – a protection that Canadians have not received from their judiciary in equal measure. I came across a recent ruling by Judge James E. Shadid in United States v Demontar Bell (2016), US Dist Ct, Illinois, Case No.: 1:15-cr-10029. Here’s the story.

On April 9, 2015, Bell was arrested for possession of a stolen AK-47 and charged with being a felon in possession of a firearm. He also had a black mobile flip phone on his person that the police seized. He was transported to the Peoria Police Department and placed in an interview room. Judge Shadid summarized the critical evidence this way, at p. 2: “Shortly thereafter, Officer Sinks arrived at the police station (he was not the arresting officer). At the suppression hearing Sinks testified that before interviewing Bell with agent Nixon, he opened the door to the interview room, grabbed Bell’s cell phone from a bag or container outside the door, opened the phone (purportedly to turn it off) and showed the home screen depicting the rifle to Bell with an inquisitive look.”

Officer Sinks turned the phone off and told agent Nixon what he saw. They opened the phone again, removed the battery and recorded the serial number of the device. A week later the police obtained a warrant to search the phone. A second warrant was obtained to search for electronically stored data relating to the date and time the photograph was taken. Judge Shadid came to these conclusions on the government’s arguments that the cursory inspection was not a search and that the photograph was in plain view, at pp. 4-5:

“The government’s response to Bell’s Motion asserts that Officer Sinks’ opening of the flip phone did not constitute a search. While it is true that a ‘cursory inspection – one that involves merely looking at what is already exposed to view, without disturbing it – is not a search for Fourth Amendment purposes,’ Officer Sinks’ opening of Bell’s cell phone exceeded a ‘cursory inspection’ because he exposed to view concealed portions of the object – i.e., the screen. See Arizona v. Hicks, 480 U.S. 321, 328-29 (1987). The Supreme Court specifically addressed this issue in Hicks, noting that the ‘distinction between looking at a suspicious object in plain view and moving it even a few inches is much more than trivial for purposes of the Fourth Amendment.’ Id. at 325. Officer Sinks’ opening of the flip phone, like the officer involved moving the stereo equipment in Hicks, ‘exposed to view concealed portions of the [object]’ and thus ‘produced a new invasion of [defendant’s] privacy.’ See Hicks, 480 U.S. at 324 (reasoning that ‘[a] search is a search, even if it happens to disclose nothing but the bottom of a turntable’).”

It was not enough to circumvent the Riley warrant requirement that Bell had a reduced expectation of privacy in the home screen of his cell phone. A home screen can reveal significant information as Judge Shadid went on to hold, at pp. 6-7: “The lens through which all information on a cell phone is observed is the screen. On both flip phones and more modern, advanced devices, ‘notifications’ are regularly displayed on the home screen or lock screen indicating text messages, missed calls, and other alerts. The position that the government advances here – that officers can always open a phone and look at the screen to turn the phone off without conducting a ‘search’ at all – is inconsistent with Riley’s requirement that ‘unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.’ Id. at 2494. Just as Riley analyzed and rejected California’s attempt to create across the board exceptions, such as a rule allowing police to search call logs, without a warrant, the Court sees no reason to allow law enforcement to circumvent the warrant requirement in every case under the guise that they discovered evidence when they opened the phone or turned on the screen to turn the phone off.”

Judge Shadid also rejected the government’s arguments that the warrantless search was justified based on officer safety and to prevent the destruction of evidence. He made this specific comment about the officer safety argument, at pp. 8-9: “The problem with the government’s argument is that it does not claim that the officer searched the phone because he was actually concerned for his safety. And because the search of Bell’s phone occurred while Bell was in custody at the police station, such a concern would either be remote or entirely absent. Since Riley recognized case-specific exceptions to the warrant requirement when ‘dangers to arresting officers may be implicated in a particular way in a particular case,’ it follows that the concern for officer safety must actually be present in the particular case in order for the exception to apply.”

The purported concern about the destruction of evidence was raised by the potential for remote wiping. But, as Judge Shadid emphasized, at p. 10, the government did not claim that the arresting officer (not Officer Sinks) was concerned about data destruction. The Riley opinion is clear that exigent circumstances must actually be present in a particular case in order for an exception to the warrant requirement to apply. The risk of data destruction, of course, was alleviated by removing the battery which Officer Sinks had actually done at the interview room. It was the less intrusive option.

Judge Shadid concluded, at p. 11, that the home screen search violated the Fourth Amendment. The result was the suppression of the evidence specific to the constitutional violation. In this case, that was the photograph of the AK-47 Officer Sinks saw on the home screen. But the two search warrants that were obtained, unrelated to the home screen search, resulted in locating the photograph on Bell’s phone. Judge Shadid concluded that the search warrants were adequately supported by probable cause and the photograph and associated data located on the phone were not suppressed. Although Bell won the battle, but lost the war, the ruling is a good example of the strict application of the Riley warrant requirement and the affirmation of the right to digital privacy in Fourth Amendment doctrine. (See also: Tim Cushing. Court Tells Cops They Can’t Open A Flip Phone Without A Warrant. TechDirt. April 25, 2016)

I am not aware of any developments post-Fearon that indicate a shift in the law in Canada that permits searches of cell phones incidental to arrest. I have maintained before on this blog, and I still maintain, that the Supreme Court of Canada has an obligation to explain to the nation why our privacy interests under s. 8 of the Charter are worth less than those of our American neighbours under the Fourth Amendment. The Fearon rule is at odds with the core purpose of s. 8 which is to prevent unreasonable searches before they happen – not condemn them after the fact. It is a ruling that is unrealistic, unworkable and thus unreasonable.

Before you go, here’s a story about a different case. I found out a couple of days ago that the police in Alliance, Ohio, were pleading with residents to stop calling an alleged drug dealer’s seized cell phone. Apparently the volume of calls was disrupting their ability to search the phone. The police had Steve Notman’s phone because he was arrested for allegedly selling methamphetamine. There was no Fourth Amendment issue because the police had Notman’s permission to look at his phone. The City of Alliance Police Department put out this post on Facebook: “We have his phone and are trying to read all your texts requesting drugs and going through all of his contacts (with his permission) but you keep calling and texting and it’s really annoying. First of all, he is all out of drugs for tonight. Secondly you don’t need to call – we will come to you soon enough. Oh, and his ringtone is terrible! Thank you so much for your patience.” (See: Cyrus Farivar. Cops to public: Stop calling alleged drug dealer’s phone, we need to search it. ArsTechnica. May 4, 2016)