You have been told you’re under arrest by police for an alleged crime. Now the officer at the scene wants to search your cellphone, and is even demanding the password from you. Can you refuse to give the password? If you refuse to unlock the phone, can police still access its contents? What if the phone was unlocked, can the officer start scrolling through my stuff?
The answer can be complicated and can depend on the situation at the time of arrest. If police have been granted a search warrant, they will of course lawfully search whatever it is they’ve been permitted to look at. However, in cases where you’ve just been arrested, it is more likely that police will not have a warrant to search your belongings. So the question is, whether the officers will be allowed to search your phone as part of an investigatory step related to your arrest.
What the courts examine when officers search your cellphone is whether that search was performed “incidental to the arrest.” Due to the rapid pace of changing technology, this question was brought to the Supreme Court of Canada in 2014, where the prevailing opinion laid out four conditions police must meet when they search your cellphone.
The four conditions for police to search your cellphone without a warrant
1) The arrest must be lawful
2) The search must be truly incidental to the arrest.
– This requirement should be strictly applied to permit searches that must be done promptly upon arrest in order to effectively serve the law enforcement purposes. In this context, those purposes are protecting the police, the accused or the public; preserving evidence; and, if the investigation will be stymied or significantly hampered absent the ability to promptly conduct the search, discovering evidence.
3) The nature and the extent of the search must be tailored to its purpose.
– In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.
4) The police must take detailed notes of what they have examined on the device and how they examine it.
– The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. The record-keeping requirement is important to the effectiveness of after-the-fact judicial review. It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest.
What do the conditions mean for police?
It means the police can and likely will search your cellphone if they believe searching its contents may be relevant to why you were arrested. It means they can search your cellphone, but they have to follow certain rules. If you were arrested, and your phone is unlocked or is not protected with a password, it would not be unreasonable for police to flip through the pictures or text messages inside if they believe doing so forms part of their investigation.
You can’t really refuse a police search once you have been arrested without risking further charges, but what you can do is remain silent. So what if your phone was locked and police are demanding the password. If you choose to remain silent, what options do police have if they are committed to searching your phone?
If you refuse to offer the password, can police still search your cellphone?
Yes, even if you refuse to give police the password to your phone, police have ways to get to the information inside. As one man with an extremely well-protected phone found out in a case out of Richmond, police have specialized branches that can crack into the toughest phones.
The case involved two BlackBerry phones that Richmond RCMP sent to the Mountie’s Technical Crime Branch in Ottawa. Despite not having a warrant to search the phone, the Mounties seized it and spent two years trying to crack one of the phones due to technology restrictions at the time. The RCMP ended up accessing the phone by “bypassing the password and creating an exact copy of the device’s memory,” and the evidence inside was later determined to be admissible in court.
One of the issues raised was whether police were right to send the phone off for a thorough examination at a laboratory and the length of time police spent trying to get inside the phone. After all, seizing the phone and then sending it to a lab is no longer just a simple search by the side of the road. The court, however, determined that police were allowed to take their time to send the phone away to have it analyzed, and said this:
“Once an item is seized for use in a criminal investigation, the police are entitled to subject it to technical analysis to determine its evidentiary significance. This often requires sending the item ‘off-site’ to qualified experts. Neither the time nor distance between the arrest and analysis mean that the search of the BlackBerry fell outside the scope of the common law power to search incidental to this lawful arrest.”
Can police force me to give up my cellphone password?
Generally, the only place where law enforcement can “force” you to give up a cellphone password is at a border crossing. Border officers are given powers to screen people and goods entering the country under the Customs Act. A cellphone is considered “good” being brought into the country, and so are the contents inside.
In one case, a man argued his rights had been breached after Canada Border Services Agency officers took him to secondary inspection and required him to provide his passwords for his computer and phone. However, it has long been established that there is a reduced expectation of privacy at border crossings.
Here’s what the judge said:
“While it is undeniable that a cell phone and a personal computer can contain large amounts of personal and private information, it is also true that people choose to seek entry into Canada and Canada, through its Border Services officers, is entitled to screen who it allows into the country on the basis of the goods they are seeking to bring with them, among other requirements.”
“I do not find that, in this context, the requirement to provide a password offends the right to be free from self-incrimination. To hold otherwise would have the result of an enhanced right against self-incrimination at the border.”
What should I do if police found something incriminating in the phone?
Whether evidence can ultimately be accepted in court and used against you is decided when matters go to court. If you believe police are using information obtained by searching your phone against you, give us a call. We can examine your case to determine if police breached your rights when they seized and searched your phone.
While the courts have allowed police to search cellphones without warrant after an individual has been arrested, there are clear guidelines and rules police must follow. As experienced Criminal Lawyers, we know what to look for and have often found success by identifying any mistakes police have made in your arrest and search of your phone.
Call us now for a free consultation at 604-685-8889.