Search a cellphone? Only with warrant, B.C. lawyer argues

Police should be required to obtain a search warrant before combing through the text messages, emails and other data on a suspect's smartphone after arrest, a defence lawyer told British Columbia's highest court on Monday.

The B.C. Appeal Court case, involving a kidnapping nearly eight years ago, is the latest to consider when police should be able to search the vast amounts of private information stored on modern-day cellphones.

Rajan Singh Mann was convicted two years ago for a June 2006 kidnapping in Richmond, B.C., where Gary Kwong was taken by gunpoint and held for a $100,000 ransom. Kwong was released, relatively unharmed, the following day and no ransom was paid.

The privacy interests that are engaged with these kinds of devices are markedly different from the privacy interests in other receptacles.- Lawyer Peter Wilson

Charges were originally laid against Mann, William Scott and Terry Richardson, but Scott pleaded guilty and Richardson died before the case was finished.

In the days and weeks that followed the kidnapping, Mann was arrested twice, and each time police seized a BlackBerry smartphone.

Both phones were protected by passwords, prompting investigators to send them to an RCMP lab in Ottawa for forensic examination. Investigators were able to recover data from one phone two months later, while the contents of the other phone weren't recovered until September 2008.

At trial, the judge saw dozens of text messages from the two phones. The judge concluded whoever used the phones was involved in the kidnapping, and also concluded Mann could be linked to both phones.

But Mann's lawyer, Peter Wilson, told a three-judge panel on Monday that the RCMP should never have searched the smartphones without a warrant.

"Smartphones are potentially repositories of vast amounts of personal information," said Wilson.

"The privacy interests that are engaged with these kinds of devices are markedly different from the privacy interests in other receptacles."

The phones were seized as part of something known as a search incident to arrest, a principle that allows the police to search a suspect for items such as weapons or evidence when they're taken into custody. Police don't require a warrant to seize such items, noted Wilson.

However, Wilson said the power to search a suspect during an arrest doesn't give police officers carte blanche to rifle through the contents of a phone or a computer.

"Because of the significant privacy interests in play, they have to go further and obtain a warrant if they want to do the full forensic analysis of the devices," he said.

Cross-country conundrum

Courts across the country have grappled with the question of when police should be permitted to search the contents of computers or smartphones, but it is a legal debate that has yet to be settled.

The Supreme Court of Canada ruled in a separate case last year that special authorization is needed to search computers and cellphones during the execution of a search warrant. That case involved searches of a location, such as a house, and didn't specifically address a search during an arrest.

The high court will hear another case this spring involving an Ontario man who was convicted after a robbery at a Toronto flea market. Police officers looked through Kevin Fearon's cellphone after he was arrested and found pictures of a gun and cash, as well as a text message about jewelry.

The Ontario Court of Appeal upheld Fearon's conviction, concluding that because his phone wasn't protected by a password, police were permitted to look through the device "in a cursory fashion" to see if there was evidence relevant to the crime.

Had they wanted to search the phone's contents in more detail, or if the phone had been protected by a password, the officers would have required a warrant to search it, the court ruled.

Still, the Ontario Appeal Court declined to craft a blanket rule to govern cellphone searches.

The Supreme Court of Canada is scheduled to hear arguments in Fearon's case in April.