Samk Posted December 12, 2014 Share Posted December 12, 2014 December 11, 2014 The Canadian Press OTTAWA – A divided Supreme Court of Canada has ruled that police can conduct a limited search of suspect’s cellphone without getting a search warrant, but they must follow strict rules. By a 4-3 margin, the court said in a precedent-setting ruling that the search must be directly related to the circumstances of a person's arrest and the police must keep detailed records of the search. Three dissenting justices said the police must get a search warrant in all cases except in rare instances where there is a danger to the public or the police, or if evidence could be destroyed. It is the first Supreme Court ruling on cellphone privacy, an issue that has spawned a series of divergent lower court rulings. The high court dismissed the appeal of the 2009 armed robbery conviction of Kevin Fearon, who argued unsuccessfully that police violated his charter rights when they searched his cellphone without a warrant after he’d robbed a Toronto jewelry kiosk. The court agreed that the police had in fact breached Fearon’s rights, but the evidence against him on his cellphone should not be excluded. “The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence,” Justice Thomas Cromwell wrote for the majority. “That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence.” Cromwell said the court was trying to strike a balance between the demands of effective law enforcement and the public’s right to be free of unreasonable searches and seizures under Section 8 of the Charter of Rights and Freedoms. “In my view, we can achieve that balance with a rule that permits searches of cellphones incident to arrest, provided that the search – both what is searched and how it is searched – is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.” The ruling laid out detailed criteria to guide police. The arrest must be lawful, and the search must be “truly incidental to the arrest” and “based on a valid law enforcement purpose,” it said. The ruling defined valid law enforcement as: protecting the police, accused or the public. That includes preserving evidence and discovering new evidence, “including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cellphone incident to arrest.” Moreover, the ruling said a phone can subjected to a warrantless search if the “nature and the extent of the search are tailored to the purpose of the search” if police “take detailed notes of what they examined on the device and how it was searched.” That lack of proper note-taking was the one flaw the high court identified in Fearon’s arrest, but it said that wasn’t enough to exclude the evidence that was gathered from his phone. After police arrested Fearon, they found a relevant draft text message that referred to “jewelry” and photographs, including the handgun used the robbery. “We did it,” the text message read in part. Police later obtained a search warrant but found nothing more useful on the phone. The court said the evidence the officers presented in court about the initial search was unsatisfactory. One officer testified that he “had a look through the cellphone” and another said he did “some quick checks” for about two minutes. Beyond that, the court concluded, the police “were not able to provide many specifics.” Still, the high court allowed that evidence to stand – upholding Fearon’s conviction – and agreed with the original trial judge’s finding that excluding it would “would undermine the truth-seeking function of the justice system.” Writing for the three dissenters, Justice Andromache Karakatsanis said police should need a warrant in all cases to search a cellphone. “The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective,” she wrote. She added the court’s majority ruling had proposed an “overly complicated template” for police to follow. “Fundamentally, my colleague’s approach puts the balancing decision in the hands of the police,” Karakatsanis wrote. “I doubt not that police officers faced with this decision would act in good faith, but I do not think that they are in the best position to determine ‘with great circumspection’ whether the law enforcement objectives clearly outweigh the potentially significant intrusion on privacy in the search of a personal cellphone or computer,” she added. “If they are wrong, the subsequent exclusion of the evidence will not remedy the initial privacy violation.” http://globalnews.ca/news/1721144/police-can-search-cellphones-without-warrant-during-arrest-court/ Link to comment Share on other sites More sharing options...
Jägermeister Posted December 12, 2014 Share Posted December 12, 2014 Time to delete some things. Link to comment Share on other sites More sharing options...
Aladeen Posted December 12, 2014 Share Posted December 12, 2014 OMG I hope they never check my Cellphone it would be so embarrassing if the Cops knew I was playing Candy Crush Link to comment Share on other sites More sharing options...
drummer4now Posted December 12, 2014 Share Posted December 12, 2014 Yeah no... I think if you encrypt your phone and put a password on it, theoretically it should stop the police from searching your phone on the spot provided they don't try to hack it later on lol... I know in the US its illegal for the police to ask for your phones password, but if you're dumb enough to use the touch id thing like on iPhone's they can legally take your thumb and unlock the device. The good news is both Apple and Google are now making it difficult for government agencies by letting the user encrypt their phone and not storing any data after. Case Closed? New iOS 8 Encryption Is Impenetrable to Law Enforcement. Apple has taken a staunch customer privacy stance that many law enforcement and government officials find problematic, even unacceptable. IOS 8 features significant improvement to mobile device encryption. Apple states, "We have also never allowed any government access to our servers. And we never will." The tech giant published a "Government Information Requests" statement on their official website, along with statistics regarding law enforcement device requests and account information requests. The transparency reports are extremely revealing, stating that the customer initiates most of law enforcement requests (93 percent). I know something similar exists with Android. Link to comment Share on other sites More sharing options...
Warhippy Posted December 12, 2014 Share Posted December 12, 2014 Well imagine this. You're driving, you swerve or nudge the other lane. Cop pulls you over claims you were on your phone. You NOW have no choice but to give your phone over to the cop so they can check any and all messaging services to prove times where messages were sent and received. Canada, the true north strong and free (under the strict and watchful eye of the Harper governments nanny state safety net) Honestly hard to believe that under Conservative governments canadians actually have less freedom than they did under Liberal ones. And no I am not blaming Harper for this, but this is all happening under his watch. More CSIS, CIA and FBI interference into canada and canadian citizens, free from warranty wire tapping, strict homeland security style laws and legislation and now this. All 7 gods help us... Link to comment Share on other sites More sharing options...
MoneypuckOverlord Posted December 12, 2014 Share Posted December 12, 2014 some people are using their phones to take pictures of girls chest and buttocks areas. Not using it for it suppose to do. i like this idea actually if you guys have nothing to hide you guys have nothing to worry about. Link to comment Share on other sites More sharing options...
CanadianLoonie Posted December 12, 2014 Share Posted December 12, 2014 Distress/duress passwords should be a nice feature to have... Link to comment Share on other sites More sharing options...
RRypien37 Posted December 12, 2014 Share Posted December 12, 2014 Easy solution. Make sure you have a password on lock, it's not like they can force you to give it to them. Police state here we come......Muuurrricaaa. Link to comment Share on other sites More sharing options...
drummer4now Posted December 12, 2014 Share Posted December 12, 2014 Easy solution. Make sure you have a password on lock, it's not like they can force you to give it to them. Police state here we come......Muuurrricaaa. Agreed.. Just don't use the touch id or any fingerprint tech, and encrypt the phone. Link to comment Share on other sites More sharing options...
aGENT Posted December 12, 2014 Share Posted December 12, 2014 i like this idea actually if you guys have nothing to hide you guys have nothing to worry about. The battle cry of the ignorant door mat brigade! Link to comment Share on other sites More sharing options...
otherwise Posted December 12, 2014 Share Posted December 12, 2014 Yeah no... I think if you encrypt your phone and put a password on it, theoretically it should stop the police from searching your phone on the spot provided they don't try to hack it later on lol... I know in the US its illegal for the police to ask for your phones password, but if you're dumb enough to use the touch id thing like on iPhone's they can legally take your thumb and unlock the device. The good news is both Apple and Google are now making it difficult for government agencies by letting the user encrypt their phone and not storing any data after. I know something similar exists with Android. I'm not sure how encryption works on a phone, would they be able to take the sim or memory card out and see what they could find on that? this law seems like it gives cops too many reasons to look at your phone. Link to comment Share on other sites More sharing options...
Grapefruits Posted December 12, 2014 Share Posted December 12, 2014 I back up my phone nightly and have my password set to wipe my phone after 2 wrong password attempts. Have fun with that one officer. I'm sure there is still a way for them to recover the data though. Link to comment Share on other sites More sharing options...
Grapefruits Posted December 12, 2014 Share Posted December 12, 2014 some people are using their phones to take pictures of girls chest and buttocks areas. Not using it for it suppose to do. i like this idea actually if you guys have nothing to hide you guys have nothing to worry about. Since you have nothing to hide, can they put video surveillance in your home to monitor things? You know, someone might break in one day, and it will help them catch the perp. Link to comment Share on other sites More sharing options...
fagin Posted December 12, 2014 Share Posted December 12, 2014 Well imagine this. You're driving, you swerve or nudge the other lane. Cop pulls you over claims you were on your phone. You NOW have no choice but to give your phone over to the cop so they can check any and all messaging services to prove times where messages were sent and received. Canada, the true north strong and free (under the strict and watchful eye of the Harper governments nanny state safety net) Honestly hard to believe that under Conservative governments canadians actually have less freedom than they did under Liberal ones. And no I am not blaming Harper for this, but this is all happening under his watch. More CSIS, CIA and FBI interference into canada and canadian citizens, free from warranty wire tapping, strict homeland security style laws and legislation and now this. All 7 gods help us... Britain has had these rules in place for a long while and using your cell phone whilst driving carries same or similar penalties as drunk driving.I have been surprised it hasn't become law here yet, it certainly should be. Link to comment Share on other sites More sharing options...
Warhippy Posted December 12, 2014 Share Posted December 12, 2014 some people are using their phones to take pictures of girls chest and buttocks areas. Not using it for it suppose to do. i like this idea actually if you guys have nothing to hide you guys have nothing to worry about. My phone is a large part of my work flow. I keep a password on it I have fun pictures of my wife on my phone. I have direct links to clients personal albums on my phone for immediate usage and display as well as my professional portfolio. That isn't anything a cop should be poking their frigging nose into. I can't wait until you're pulled over for no reason and your phone is searched just because they feel you were on it and want to fill their quota for the week. There is such a thing as to much power, and this is it. It is one thing for a cop to search your phone after being detained, it is one thing for a border patrol officer to search your phone when you ask to enter the country. it is entirely different for a cop to now have unfettered access to your PERSONAL device just because they want to see if you've been doing anything bad. And yes this includes ALL your messaging services, personal photos and albums, facebook and emails. All just because they have a "hunch". Picture this, scenario. Cop sees you with mondo attractive woman (I know it's unrealistic don't worry it's hypothetical ) stops you demands to see your phone, rips through your photos to see if she looks as good sans clothes as with it. What can you do? You were acting "suspicious" That is the power that was handed to cops today. I mean seriously, if you're ok with this that's fine. Many many more rightly so are not. Link to comment Share on other sites More sharing options...
Mr. Ambien Posted December 12, 2014 Share Posted December 12, 2014 Britain has had these rules in place for a long while and using your cell phone whilst driving carries same penalties as drunk driving.I have been surprised it hasn't become law here yet. Calgary's been mulling it over. Lately the city has been pissing and moaning a lot about people flat out ignoring distracted driving laws. My Twitter feed's overloaded from radio stations, news stations, and government officials about it. Link to comment Share on other sites More sharing options...
drummer4now Posted December 12, 2014 Share Posted December 12, 2014 I'm not sure how encryption works on a phone, would they be able to take the sim or memory card out and see what they could find on that? this law seems like it gives cops too many reasons to look at your phone. Depends on the phone... The Sim usually doesn't store your personal information unless you set it up to store backups of your contacts. The memory card would have to be put into a card reader and/or computer and someone would either have to hack if it was encrypted or navigate through the system files. Long story short if you encrypt and put a password the police cant look at your info on the spot, they would have to seize it and hack or access it later on. I highly doubt most cops are trained to hack devices lol If you have a newer Android or apple phone you can actually encrypt right from the device. Link to comment Share on other sites More sharing options...
Mr. Ambien Posted December 12, 2014 Share Posted December 12, 2014 Depends on the phone... The Sim usually doesn't store your personal information unless you set it up to store backups of your contacts. The memory card would have to be put into a card reader and/or computer and someone would either have to hack if it was encrypted or navigate through the system files. Long story short if you encrypt and put a password the police cant look at your info on the spot, they would have to seize it and hack or access it later on. I highly doubt most cops are trained to hack devices lol If you have a newer Android or apple phone you can actually encrypt right from the device. Basically, if you ever anticipate they'll seize your phone, find the grossest gore or ridiculous sex fetish picture and put it as your wallpaper/lock screen. If they're gonna seize it, they're gonna wish they hadn't. Link to comment Share on other sites More sharing options...
SabreFan1 Posted December 12, 2014 Share Posted December 12, 2014 Easy solution. Make sure you have a password on lock, it's not like they can force you to give it to them. Police state here we come......Muuurrricaaa. Even in America, the police can no longer search through a phone without a warrant. The Supreme Court ruled on it during a session or two ago. Congratulations Canada, your government is well on it's way to sucking just as bad as the US gov't!!!! Link to comment Share on other sites More sharing options...
CanadianLoonie Posted December 12, 2014 Share Posted December 12, 2014 Even in America, the police can no longer search through a phone without a warrant. The Supreme Court ruled on it during a session or two ago. Congratulations Canada, your government is well on it's way to sucking just as bad as the US gov't!!!! People here are in denial... Link to comment Share on other sites More sharing options...
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