Access to Public Information, Privacy, Data Protection and Retention, Surveillance
Bartnicki v. Vopper
Closed Contracts Expression
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After Kevin Fearon was arrested for armed robbery, Ontario police officers searched his cell phone prior to obtaining a warrant, finding evidence in his text messages and photos that was later used to help convict him. The Supreme Court of Canada held that police officers may lawfully search mobile phones without a search warrant.
In 2009, Toronto police officers arrested Kevin Fearon for the armed robbery of a flea market. Allegedly, Fearon and an associate, Junior Chapman, had targeted one of the flea market’s merchants as she was loading jewelry into her car. Within a few hours of the robbery, police focused their investigation on Chapman and Fearon and completed the arrests.
During the course of his detention, one of the officers conducted a “pat-down search incident to the arrest” and found a cell phone in one of Fearon’s pockets. The officers later completed two searches of the cell phone and found a draft text message stating “We did it.” The searches also produced pictures of a handgun, which matched the handgun used in the robbery. Only later did the police apply for a search warrant for the phone, which they were granted.
Based on the evidence obtained by the search, in addition to other factors, Fearon was convicted of “robbery with a firearm and related offences.” He appealed the admissibility of the evidence obtained through the search of his phone, which the Court of Appeal for Ontario unanimously dismissed. The Court instead agreed with the trial court judge that the search had not violated Fearon’s rights under the Canadian Charter of Rights and Freedoms (Charter). Fearon then appealed this dismissal to the Supreme Court of Canada.
The Supreme Court of Canada bifurcated its analysis, eventually affirming the decisions of both the trial court and the Court of Appeal for Ontario.
The Supreme Court spent considerable time evaluating whether the search incident to Fearon’s arrest was unreasonable and thus violated the Charter. A search incident to arrest is an exception to the rule that a warrant is required to conduct a valid search and is permissible in order to promote the police’s ability to begin prompt investigation of a crime. Such a search can include the seizure of “anything in [an arrestee’s] possession or immediate surroundings[.]” The Supreme Court found that the search the officers conducted of the cell phone were completed in order to protect public safety, avoid the loss of evidence, and obtain evidence linking Fearon to the armed robbery. In other words, the search, despite being conducted without a warrant, was permissible under the common law. The Supreme Court supplemented this finding when it reasoned that based on the facts presented in the record, the search was neither expansive nor abusive. In doing so, the Supreme Court interestingly made it a point to reconcile the common law grounds for instituting a valid search and the rights guaranteed to Fearon under the Charter.
The Supreme Court justices setting forth this decision relied on a multitude of cases that support the proposition that a cell phone may be searched without a warrant during the course of an arrest. The Supreme Court compared cell phone searches to other forms of searches, such as strip searches. While the latter would involve a significant invasion of an individual’s privacy, the search of an electronic object would not nearly as significantly impede upon an individual’s privacy rights. Additionally, Canadian jurisprudence indicates that when weighing public and officer safety against an arrestee’s privacy interest, the former generally trumps the latter. Even if the search of a cell phone may not be related to the arrest itself, if the police reasonably believe that the cell phone could contain evidence that would hasten an investigation, then the police are permitted to conduct a search.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case most directly impacts search and seizure matters, but, arguably, its holding does contract an individual’s right to free expression. If police officers are able to review any correspondence, such as text messages or photographs contained on a cell phone, during an arrest, then individuals may not feel as free about communicating electronically. Additionally, if Canadian police are now allowed to review electronic communications without a warrant, there is little reason to believe that warrantless searches of e-mail accounts or online messaging will not be found to be permissible in the future as well.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision set forth by the Supreme Court of Canada, this case is enormously important for search and seizure matters moving forward. Here, the Supreme Court grants broad latitude for police officers to seize cell phones and search their contents for incriminating text messages, e-mails, photographs, and other stored data, so long as the police reasonably believe that a search will aid in their investigation and help ensure public safety.
Let us know if you notice errors or if the case analysis needs revision.