Cell phone searches legal say SCOC: R v Fearon

A divided Supreme Court ruled that individuals cannot be secure that their most personal information will be protected from warrantless searches when arrested. In a 4 to 3 ruling, in R v Fearon, the Court held that if a person is lawfully arrested, a search is conducted that is incidental to the arrest, the search is tailored to its purpose, and the police take detailed notes, police may search the person’s cell phone.

The three dissenting judges wrote a powerful defence of privacy rights that recognized the invasions of privacy that could result from warrantless searches of cell phones,. In their view, warrantless searches of cell phones would be justified in exigent circumstances. These circumstances would exist when there is a reasonable basis to suspect a search may prevent an imminent threat to safety or there are grounds to believe that the imminent destruction of evidence can be prevented by a warrantless search. In other circumstances, police can obtain a telewarrant relatively quickly and with little harm to the investigation.

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