R v Fearon | |
---|---|
![]() | |
Hearing: 23 May 2014 Judgment: 11 December 2014 | |
Full case name | Kevin Fearon v Her Majesty The Queen |
Citations | 2014 SCC 77 |
Docket No. | 35298 [1] |
Prior history | APPEAL from R v. Fearon, 2013 ONCA 106 (20 February 2013), dismissing R v. Fearon, 2010 ONCJ 645 (23 December 2010). Leave to appeal granted, Kevin Fearon v. Her Majesty The Queen, 2013 CanLII 42522 (11 July 2013), Supreme Court (Canada) |
Ruling | Appeal dismissed. |
Holding | |
Warrantless search of a cell phone incident to arrest is constitutional, provided that the nature and extent of the search are truly incident to arrest, that any search effected to discover evidence be necessary in order to avoid hampering of the investigation, and that law enforcement take detailed notes of the search. | |
Court membership | |
Chief Justice: Beverley McLachlin Puisne Justices: Rosalie Abella, Marshall Rothstein, Thomas Cromwell, Michael Moldaver, Andromache Karakatsanis, Richard Wagner, Clément Gascon | |
Reasons given | |
Majority | Cromwell J, joined by McLachlin CJ, Moldaver and Wagner JJ |
Dissent | Karakatsanis J, joined by LeBel and Abella JJ |
Rothstein and Gascon JJ took no part in the consideration or decision of the case. |
R v Fearon, 2014 SCC 77 is a leading section 8 Canadian constitutional law case, concerning the constitutionality of warrantless law enforcement searches of the contents of a cell phone incident to arrest.
The appellant, Kevin Fearon, and an accomplice robbed a jewelry merchant and fled in a black getaway vehicle. A police investigation resulted in Fearon's arrest that night. At the time of Fearon's arrest, police had not yet recovered the handgun Fearon used to commit the robbery or the jewelry he stole. Police conducted a pat-down search of Fearon incident to arrest and, discovering an unlocked, unencrypted cell phone on his person, searched the phone. The arresting officer did not have a warrant to search the phone at that time. The search revealed, inter alia, a draft text message reading “We did it were the jewelry at nigga burrrrrrrrrrr” and a photograph of a handgun that matched a handgun later recovered by police. Fearon was charged with robbery with a firearm and related offences. Police obtained a warrant to search the phone several months after Fearon's arrest but did not uncover any new evidence.
At trial, Fearon argued that the police search of his cell phone incident to arrest was unconstitutional, violating section 8 of the Charter, and moved for the evidence to be excluded under section 24(2) of the Charter. The trial judge convicted Fearon of robbery with a firearm, holding that the police had a "reasonable prospect of securing evidence of the offence for which [Fearon] was being arrested" [2] and that the information stored in the cell phone, while private, was not "so connected to the dignity of the person" [3] to limit the police's common-law power of search incident to arrest. The trial judge admitted the evidence found on the cell phone, finding that its exclusion would undermine the judicial system.
The Ontario Court of Appeal, agreeing to hear Fearon's appeal, unanimously upheld the conviction in a decision written by Justice Armstrong, holding that a cursory cell phone search fell within the common-law doctrine of search incident to arrest set out in R v Caslake. [4]
Fearon appealed to the Supreme Court of Canada.
The Supreme Court dismissed Fearon's appeal in a 4–3 decision. All seven justices of the Court agreed that cell phones without passcode protection have no less of a privacy interest than passcode-protected phones. [5] However, the Court was split as to whether the common-law doctrine of search incident to arrest justified a search of the contents of a cell phone.
A majority of the Supreme Court, led by Cromwell J, affirmed the validity of the search incident to arrest framework as set out in R v Caslake and R v Golden . The majority found that the search of Fearon's cell phone was conducted subsequent to a lawful arrest and was truly incidental to the arrest, as it was conducted to locate the handgun, thus ensuring public safety; to locating the stolen jewelry, thus avoiding the loss of evidence; and to obtain evidence about the crime and any accomplices to the robbery. [6]
Next, the majority determined that the common-law doctrine of search incident to arrest—a power granting police the opportunity to conduct a search without a warrant or without reasonable and probable grounds [7] —should be modified to comply with section 8 of the Charter. The majority rejected an outright categorical prohibition on warrantless cell phone searches incident to arrest, finding that this would conflict with valid law enforcement objectives, including police and general public safety, and noting that a cell phone search is not necessarily a significant privacy invasion. [8] The majority equally rejected a moderate approach that would require reasonable and probable grounds for a cell phone search incident to arrest, again finding that this would hamper and undermine law enforcement objectives. The majority also dismissed an approach that would allow cell phone searches incident to arrest only in exigent circumstances, finding that this would "effectively gut" [9] police powers and would conflict with established Supreme Court jurisprudence on this issue.
Instead, the majority proposed three modifications to the existing common-law framework. First, the nature and extent of the search must be truly incidental to arrest, thus allowing access only to information with a "necessary link" [10] to the purpose of the search. Second, cell phone searches incident to arrest undertaken to discover evidence will be valid only if the investigation would be "stymied or significantly hampered" [11] were it not for the search. Third, officers conducting cell phone searches incident to arrest must take comprehensive notes of the examination, detailing the purpose, extent and duration of the search as well as any applications accessed.
The majority held that the evidence should not be excluded under section 24(2) of the Charter, on the basis of the Grant factors. Although the search of Fearon's phone impinged on his privacy, the breach was not particularly serious, and the police legitimately believed that they were acting reasonably and in good faith. The majority agreed with the trial judge's assessment that excluding the evidence would undermine the judiciary's truth-seeking function.
The dissenting judges, led by Karakatsanis J, would have allowed the appeal. They found the search unconstitutional, holding that warrantless search of a cell phone incident to arrest is prima facie unreasonable, as it is not authorized by law. The dissenting judges found a high expectation of privacy in cell phones, recognizing the immense data storage and retention capabilities of modern cell phones, the volume of metadata generated by cell phones, and the possibility that a search of a cell phone might access data stored in the cloud, not on the cell phone itself. Quoting:
"We live in a time of profound technological change and innovation. Developments in mobile communications and computing technology have revolutionized our daily lives. Individuals can, while walking down the street, converse with family on the other side of the world, browse vast stores of human knowledge and information over the Internet, or share a video, photograph or comment about their experiences with a legion of friends and followers.
"The devices which give us this freedom also generate immense stores of data about our movements and our lives. Ever-improving GPS technology even allows these devices to track the locations of their owners. Private digital devices record not only our core biographical information but our conversations, photos, browsing interests, purchase records, and leisure pursuits. Our digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. Our digital devices are windows to our inner private lives.
"Therefore, as technology changes, our law must also evolve so that modern mobile devices do not become the telescreens of George Orwell’s 1984." [11]
The dissenting judges noted the law enforcement objectives set out by the majority but suggested that they would be more fairly balanced with privacy interests given a modification of the common-law framework allowing warrantless cell phone searches incident to arrest only in exigent circumstances. Exigent circumstances would require of law enforcement a "reasonable basis to suspect a search may prevent an imminent threat to safety or... reasonable grounds to believe that the imminent loss or destruction of evidence may be prevented by a warrantless search". [12] Under the dissenting judges' modification, the objective of protecting officer safety would justify a warrantless search only if the officer had a reasonable suspicion that the phone had been used to generate a threat to his safety. Likewise, the preservation of evidence objective would justify a warrantless search only in those cases where it was reasonable to believe that evidence was being destroyed and that a cell phone search could prevent this destruction. In any other, non-exigent circumstances, the dissenting judges held that a warrant would be required for the search.
The dissenting judges would also have excluded the evidence under section 24(2) of the Charter, on the basis of the seriousness of the breach of Fearon's substantial privacy interest in the contents of his cell phone.
The Canadian Internet Policy and Public Interest Clinic suggested that the decision "transforms the traditional incident to arrest search into a far broader fishing expedition". [13]
The Fourth Amendment to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures and sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.
Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confiscate any relevant evidence found in connection to the crime.
Atwater v. Lago Vista, 532 U.S. 318 (2001), was a United States Supreme Court decision which held that a person's Fourth Amendment rights are not violated when the subject is arrested for driving without a seatbelt. The court ruled that such an arrest for a misdemeanor that is punishable only by a fine does not constitute an unreasonable seizure under the Fourth Amendment.
Kyllo v. United States, 533 U.S. 27 (2001), was a decision by the Supreme Court of the United States in which the court ruled that the use of thermal imaging devices to monitor heat radiation in or around a person's home, even if conducted from a public vantage point, is unconstitutional without a search warrant. In its majority opinion, the court held that thermal imaging constitutes a "search" under the Fourth Amendment, as the police were using devices to "explore details of the home that would previously have been unknowable without physical intrusion." The ruling has been noted for refining the reasonable expectation of privacy doctrine in light of new surveillance technologies, and when those are used in areas that are accessible to the public. This case has been praised by legal scholars since the Court refused to be the arbiter to determine "what is and is not intimate" and thus worthy of protection. Instead, the Court opted to focus on "the invasiveness of the technology itself" and its ability to enable all kinds of government surveillance in the home.
Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. This right provides those in Canada with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.
R v Wong, [1990] 3 S.C.R. 36, is a leading decision of the Supreme Court of Canada on the evidence obtained by electronic video surveillance conducted without authorization. The Court held that individuals have a reasonable expectation of privacy in a hotel room. This expectation does not depend on whether those persons were engaging in illegal activities. Therefore, individuals can expect that agents of the state will not engage in warrantless video surveillance. Electronic surveillance without authorization violates Section Eight of the Canadian Charter of Rights and Freedoms. However, for this particular case, the Supreme Court held that the police acted in good faith and had reasonable and probable ground to believe criminal activities were committed. The surveillance without authorization was a result of misunderstanding. Hence, acceptance of the surveillance as evidences will not bring the administration of justice into disrepute under Section Twenty-four of the Canadian Charter of Rights and Freedoms.
Search incident to a lawful arrest, commonly known as search incident to arrest (SITA) or the Chimel rule, is a U.S. legal principle that allows police to perform a warrantless search of an arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety, the prevention of escape, and the preservation of evidence.
In United States criminal law, the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. Generally speaking, searches within 100 miles of the border are more permissible without a warrant than those conducted elsewhere in the U.S. The doctrine also allows federal agents to search people at border crossings without a warrant or probable cause. The government is allowed to use scanning devices and to search personal electronics. Invasive bodily searches, however, require reasonable suspicion.
Welsh v. Wisconsin, 466 U.S. 740 (1984), was a 1983 case before the US Supreme Court determining that a warrantless home arrest without exigent circumstances violates the Fourth Amendment protection against unlawful search and seizure.
Schmerber v. California, 384 U.S. 757 (1966), was a landmark United States Supreme Court case in which the Court clarified the application of the Fourth Amendment's protection against warrantless searches and the Fifth Amendment right against self-incrimination for searches that intrude into the human body. Until Schmerber, the Supreme Court had not yet clarified whether state police officers must procure a search warrant before taking blood samples from criminal suspects. Likewise, the Court had not yet clarified whether blood evidence taken against the wishes of a criminal suspect may be used against that suspect in the course of a criminal prosecution.
Kentucky v. King, 563 U.S. 452 (2011), was a decision by the US Supreme Court, which held that warrantless searches conducted in police-created exigent circumstances do not violate the Fourth Amendment as long as the police did not create the exigency by violating or threatening to violate the Fourth Amendment.
United States v. Jones, 565 U.S. 400 (2012), was a landmark United States Supreme Court case in which the court held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment.
R v Sinclair2010 SCC 35 is a leading case from the Supreme Court of Canada on a detainee's right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms.
People v. Diaz, 51 Cal. 4th 84, 244 P.3d 501, 119 Cal. Rptr. 3d 105 was a Supreme Court of California case, which held that police are not required to obtain a warrant to search information contained within a cell phone in a lawful arrest. In a sting operation conducted by local police, the defendant, Gregory Diaz, was arrested for the sale of the illicit drug ecstasy and his cellphone, containing incriminating evidence, was seized and searched without a warrant. In trial court proceedings, Diaz motioned to suppress the information obtained from his cellphone, which was denied on the grounds that the search of his cellphone was incident to a lawful arrest. The California Court of Appeal affirmed the court's decision and was later upheld by the California Supreme Court. In 2014, the United States Supreme Court overruled that position in Riley v. California and held that without a warrant, police may not search the digital information on a cellphone that has been seized incident to arrest.
Riley v. California, 573 U.S. 373 (2014), is a landmark United States Supreme Court case in which the court ruled that the warrantless search and seizure of the digital contents of a cell phone during an arrest is unconstitutional under the Fourth Amendment.
R v Spencer, 2014 SCC 43 is a landmark decision of the Supreme Court of Canada on informational privacy. The Court unanimously held that internet users were entitled to a reasonable expectation of privacy in subscriber information held by Internet service providers. And as such, police attempts to access such data could be subject to section 8 of the Charter of Rights and Freedoms.
Birchfield v. North Dakota, 579 U.S. 438 (2016) is a case in which the Supreme Court of the United States held that the search incident to arrest doctrine permits law enforcement to conduct warrantless breath tests but not blood tests on suspected drunk drivers.
Carpenter v. United States, 585 U.S. 296 (2018), is a landmark United States Supreme Court case concerning the privacy of historical cell site location information (CSLI). The Court held that the government violates the Fourth Amendment to the United States Constitution when it accesses historical CSLI records containing the physical locations of cellphones without a search warrant.
R v Golden, 2001 SCC 83 is a landmark decision of the Supreme Court of Canada on limitations to the power of police officers to perform strip searches. The Court held that the common law rule allowing police officers to perform warrantless searches incident to arrest must be limited in relation to strip searches, citing their heightened intrusiveness and impact on the Charter protected privacy interests of the accused.
R v Stairs, 2022 SCC 11 is a constitutional rights decision of the Supreme Court of Canada. The Court established new standards for searches of a person's home after they have been arrested. At issue in the case was whether the traditional common law power of Search Incident to Arrest, which allows police officers to engage in warrantless searches of lawfully arrested persons, was compliant with section 8 of the Charter of Rights and Freedoms as it related to searches of the home.
General references