If you are on the south side of the Peace Bridge in Buffalo, New York and are arrested by the Buffalo Police Department, the cops can’t search the contents of your cell phone unless they get a warrant.

Their attempt to rely on an exception to the warrant requirements called “search incident to a lawful arrest,” which is what gives the cops the right to dump the pockets of the guy in handcuffs, was thwarted last year when the US Supreme Court, in Riley v. California held that a cell phone was no ordinary container, and could best be described as a portable computer.

To enable the cops to search just about everything you did, everyone you talked to, every place you had ever been just because you could be arrested for something was, in the opinion of the Court, unreasonable.  The advice of the court – “get a warrant.”

Unless you are on the other side of the bridge.  If you are arrested on the QEW on the north side of the bridge, according to the Canadian Supreme Court your cell phone is up for grabs.  In the seminal case of Regina v. Fearon, the Canadian court permitted the Canadian police to search the contents of cell phones incident to an arrest without a warrant.

The Court noted that “ a prompt search of a suspect’s cell phone may serve important law enforcement objectives,” such as locating additional suspects, finding stolen property and following up on additional leads.  The Court, citing U.S. case law, found that “ cell phones, “are the ‘bread and butter’ of the drug trade and the means by which drugs are marketed on the street.”

Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed. Cell phones may also be used to evade or resist law enforcement.

An individual may be a “scout” for drug smugglers, using a cell phone to warn criminals that police are in the vicinity or to call for “back up” to help resist law enforcement officers: see, e.g., United States v. Santillan, 571 F.Supp.2d 1093 (D. Ariz. 2008), at pp. 1097-98. In such situations, a review of recent calls or text messages may help to locate the other perpetrators before they can either escape or dispose of the drugs and reveal the need to warn officers of possible impending danger.

All good.  This means that cops really want to see what’s in my phone.  Sometimes they have probable cause, sometimes they don’t.  If they do, they can get a warrant.  Right?  That’s not too complicated

But the Canadian Court finds the warrant requirement too onerous.  In fact, they thought that imposing a requirement that the police even have probable cause to search without a warrant was too difficult.  They noted, “A standard of reasonable and probable grounds, in my view, has the potential to unreasonably compromise the safety of the police, the accused, or the public. It strikes an inappropriate balance between those important law enforcement objectives and the accused’s privacy interests.”

The Court also rejected the idea that the police could search phones without a warrant but only in circumstances that were “exigent” – immediate threat of evidence destruction, harm to people or property, etc.  Nope.  That would unduly restrict the police too.

The Court just imposed a requirement on the SCOPE of the search incident – and a restriction that’s not much of a restriction at all.  The Court noted, “the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest.”  But in a search incident, there is no “purpose” for which the search may be conducted.

The fact that the search is incident to the arrest means only that it is conducted in some physical or temporal proximity to the arrest.  And with digital data, that proximity may be pretty distant.  You can arrest someone on the street, seize their phone, and conduct a “search incident” using forensic tools hours, days or weeks later.  It is still “incident” to the arrest.  You can send the phone off to specialists in Ottawa for deep dive forensics, and it is still “incident” to the arrest.

The term “incident” also doesn’t mean that the search has to be for evidence related to the crime for which the target has been arrested – or at least hasn’t meant that in the past.  If you are arrested for tax fraud, and have a briefcase in your hand, the RCMP can search the bag.

If they find guns, drugs, or evidence of other crimes in the case, they can use them since the search is “incident” to a lawful arrest.  In fact, they can use the arrest as a ruse to conduct the search.

But the Canadian court may be imposing a requirement that the search incident be related to the crime for which you are arrested.  If so, it’s a significant change to the rules of search incident.

The Canadian court did recognize that cell phones – and smart phones particularly – presented serious privacy issues.  But the restrictions they placed on police are, in my opinion, close to meaningless.

The only advantage there is that the Canadians are so polite they might be embarrassed to ask for the phone.   But I doubt it.  So there’s at least one reason to stay on the US side of the border.  But they have better beer and hockey up north.  So it’s a coin toss.  Just don’t bring your cell phone.

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