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Digest of the Week — Smartphone Searches Incident to Arrest

R. v. Croft |
2014 CarswellAlta 1641 |
Alberta Court of Queen's Bench

Criminal law | Charter of Rights and Freedoms | Unreasonable search and seizure [s. 8] | Authorized by law

Police executed search warrant at home of one of accused and seized various items — Three accused brought application for order that data content searches of all seven of smart phones seized from them when they were arrested was unreasonable and violated their rights under s. 8 of Canadian Charter of Rights and Freedoms — Application granted — Search did not authorize data search of any of computers, cell phones or memory storage devices seized by police and these data searches violated s. 8 — Police had reasonable and probable grounds to arrest accused — Vast scope of information contained in smart phone, personal nature of that information and limited relevance of most of it to alleged offences was clear from evidence filed on this application — Search of contents of smart phone found in place where accused were arrested was not search of place where accused were arrested — Once smart phones were seized upon arrest of accused there was no element of exigency since accused could no longer destroy their contents — Therefore, there was no impediment to seeking judicial authorization before search of seized phones was undertaken — Data content searches of smart phones that were seized at time of accuseds' arrests were therefore not within police power to search incidental to arrest and accuseds' rights under s. 8 were therefore violated.
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