R v Fearon

R. v. Fearon

2013 ONCA 106
Court of Appeal for Ontario — MacPherson, Armstrong and Watt JJ.A. | February 20, 2013

Background

Kevin Fearon was arrested for armed robbery after a jewellery vendor was held up at gunpoint at a Toronto flea market. During a pat-down search at the scene, police found Fearon's cell phone. Sergeant Hicks immediately examined its contents and discovered photographs of a gun and cash, plus a draft text message reading "We did it were the jewlery at nigga burrrrrrrrr." The phone wasn't password protected, so the officer could access everything by operating the keypad.

Hours later at the police station, officers continued searching through the phone for contacts and recent calls. They eventually got a search warrant months later, but by then the damage was done — Fearon's lawyer argued the original warrantless search violated his Charter rights and all the cell phone evidence should be thrown out.

Issues

1. Does the common law power of "search incident to arrest" allow police to search the contents of a cell phone without a warrant?
2. Should courts create a special "cell phone exception" requiring warrants for smartphone searches?
3. If the search was illegal, should the evidence be excluded under s. 24(2) of the Charter?

The Cell Phone Search Doctrine

The Court of Appeal refused to carve out a special exception for cell phones. Justice Armstrong explained that under R. v. Caslake, police can search items found on an arrested person if they have "some reason related to the arrest" and that reason is "objectively reasonable." Here, police knew Fearon had accomplices and were looking for evidence about the gun's location, stolen property, and communications between co-conspirators.

The court distinguished this case from R. v. Polius, where a judge had required warrants for cell phone searches. In Polius, police had no reason to believe the phone contained relevant evidence. Here, given the nature of the robbery and the likelihood of accomplice communications, the search was reasonable. Crucially, Fearon's phone wasn't password protected — the photos and texts were "readily available to other users."

However, the court suggested the continued searching at the police station went too far. Once police had the incriminating evidence, they should have stopped and gotten a warrant for any further examination.

Key Takeaway

Police can search your unlocked cell phone immediately after arrest if they have reasonable grounds to believe it contains evidence of your alleged crime.

But if your phone is password protected or locked, police would need a warrant to crack it open. The court left the door open for future cases involving more sophisticated devices or different circumstances to potentially require warrants.