Police have the power to conduct a search “incident to arrest”. This is an exception to your Charter protected right to be free from unreasonable search or seizure.
In order for the police to be able to conduct a search of your person upon arrest, the arrest must be lawful. The police must have reasonable and probable grounds to arrest you. The search cannot be abusive and the police must have an objectively reasonable purpose to conduct the search.
The purpose of the search must be limited to protecting public and police safety, protecting certain evidence from being destroyed, and discovering evidence that may be used at trial. If the police reasonably and objectively believe that there is something on your cell phone that would affect any of these purposes, then they are permitted to conduct a search incident to arrest of your cell phone.
However, cell phone searches are slightly different than regular searches incident to arrest because of the important privacy interests attached to your cell phone. In addition to the above rules, police must also keep certain guidelines in mind. Their search of your cell phone must be “tailored” to the purpose. For example, if they believe there is a photograph or a text message that is relevant to your arrest, then they are, under most circumstances, only permitted to examine recent photographs and recent text messages. Moreover, when discovering evidence, police may only search your cell phone if there is an urgent purpose to do so, such as locating someone who they believe committed an offence. Finally, police must take detailed notes of the cell phone search, explaining how they conducted the search and what was looked at.
An important step you can take to protecting your privacy is ensuring your phone has a passcode before entry to the contents is available. This will often act as a deterrent from police being able to search your phone, and your right to remain silent likely prevents you from needing to give the police your cell phone password.
Have you been charged following a search by police? Do you have further questions about whether that search was legal? Contact Cassandra at DeMelo Law for a free consultation.