search and seizure: computers & electronic devices

Search and Seizure: Search and Seizure:

Computers &Computers &Electronic DevicesElectronic Devices

Randy Schwartz Crown Counsel

Crown Law Office – Criminal (Ont.)

Introduction & OverviewIntroduction & Overview

1.1. Locating a reasonable expectation of Locating a reasonable expectation of privacyprivacy

2.2. Drafting the ITO for a computer searchDrafting the ITO for a computer search3.3. Executing a computer searchExecuting a computer search4.4. Searching cell phones incident to arrestSearching cell phones incident to arrest5.5. Chat rooms and text messagesChat rooms and text messages

PART ONE:PART ONE:

LOCATING A REASONABLE LOCATING A REASONABLE EXPECTATION OF PRIVACYEXPECTATION OF PRIVACY

Computers:Computers:Reasonable Expectation of Reasonable Expectation of

PrivacyPrivacyR. v. MorelliR. v. Morelli [2010] SCC 8: [2010] SCC 8:

It is difficult to imagine a search more intrusive, It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the extensive, or invasive of one’s privacy than the search of a personal computer. …search of a personal computer. …Computers often contain our most intimate Computers often contain our most intimate correspondence. They contain the details of our correspondence. They contain the details of our financial, medical, and personal situations. They financial, medical, and personal situations. They even reveal our specific interests, likes, and even reveal our specific interests, likes, and propensities, recording in the browsing history and propensities, recording in the browsing history and cache files the information we seek out and read, cache files the information we seek out and read, watch, or listen to on the Internet.watch, or listen to on the Internet.

Computers:Computers:Reasonable Expectation of Reasonable Expectation of

PrivacyPrivacyR. v. PoliusR. v. Polius [2009] O.J. No. 3074 (Sup. Ct.):

The information in a cell phone, computer or other electronic device may relate to aspects of life that are deeply personal. It may include:

* Contacts, including names, addresses, phone numbers, e-mail addresses and other personal information;

* Internet Explorer, including the history of accessing websites;* Calendars;* Photographs and videos;* Text Messages;* Voice Mail Messages;* E-mail Messages;* Missed Calls;* Call Logs; and* Call Identification.

Computers:Computers:REP – Relevant FactorsREP – Relevant Factors

Home or Personal UseHome or Personal Use

As a general proposition personal devices will As a general proposition personal devices will have a high degree of privacy associated have a high degree of privacy associated with them:with them:

R. v. ChoudryR. v. Choudry [2009] O.J. No 84 (Sup. Ct.) [2009] O.J. No 84 (Sup. Ct.)R. v. Little,R. v. Little, [2009] CanLII 41212 (Ont. Sup. Ct.) [2009] CanLII 41212 (Ont. Sup. Ct.)R. v. PoliusR. v. Polius [2009] O.J. No 3074 (Sup. Ct.) [2009] O.J. No 3074 (Sup. Ct.)


Location of UseLocation of Use

RR. v. Dragos, . v. Dragos, [2009] O.J. No. 4045 (Sup. Ct.)[2009] O.J. No. 4045 (Sup. Ct.)

Computer in residence had REP; computer Computer in residence had REP; computer in hotel room reduced REP. (para 17)in hotel room reduced REP. (para 17)

Computers:Computers:REP – Relevant FactorsREP – Relevant Factors Workplace Computers/DevicesWorkplace Computers/Devices

R. v. Little,R. v. Little, [2009] CanLII 41212 (Ont. Sup. Ct.) [2009] CanLII 41212 (Ont. Sup. Ct.) ““diminished” expectation of privacy in work computer.diminished” expectation of privacy in work computer.

Quon v. City of Ontario, Quon v. City of Ontario, 130 S.Ct. 2619 (2010)130 S.Ct. 2619 (2010)

R. v. Cole,R. v. Cole, [2009] CanLII 20699 (Sup. Ct.); reversed 2011 [2009] CanLII 20699 (Sup. Ct.); reversed 2011 ONCA 0218ONCA 0218

See also:See also:R. v. RitterR. v. Ritter (2006) 402 A.R. 249 (Prov. Ct.) (2006) 402 A.R. 249 (Prov. Ct.)


Usage – File SharingUsage – File Sharing

R. v. BahrR. v. Bahr [2008] A.W.L.D. 2443 [2008] A.W.L.D. 2443United States v. GanoeUnited States v. Ganoe, 538 F.3d 1117 (9, 538 F.3d 1117 (9thth Cir. Cir.

2008) “although as a general matter an individual 2008) “although as a general matter an individual has an objectively reasonable expectation of has an objectively reasonable expectation of privacy in his personal computer…we fail to see privacy in his personal computer…we fail to see how this expectation can survive Ganoe’s decision how this expectation can survive Ganoe’s decision to install and use file-sharing software, thereby to install and use file-sharing software, thereby opening his computer to anyone one else with the opening his computer to anyone one else with the same freely available program.”same freely available program.”


MaintenanceMaintenanceR. v. Graham,R. v. Graham, [2010] O.J. No. 146 (Sup. Ct.): [2010] O.J. No. 146 (Sup. Ct.):“…“…counsel submits that there is a high degree of privacy when one counsel submits that there is a high degree of privacy when one

brings in one’s computer for corrective maintenance as most brings in one’s computer for corrective maintenance as most personal computers have financial information and perhaps other personal computers have financial information and perhaps other information of a confidential nature…information of a confidential nature…

I agree that in other factual situations that a court I agree that in other factual situations that a court maymay have to have to consider, those other concerns might have a more prominent place. consider, those other concerns might have a more prominent place. I do not have those facts before me.”I do not have those facts before me.”

R. v. Winchester, R. v. Winchester, [2010] O.J. No. 281 (Sup. Ct.):[2010] O.J. No. 281 (Sup. Ct.):Issue: Was reasonable expectation of privacy objectively reasonable?Issue: Was reasonable expectation of privacy objectively reasonable?Similar to Graham as computer left with store for repairs. “…while I am Similar to Graham as computer left with store for repairs. “…while I am

not prepared to find that the applicant had no expectation of privacy not prepared to find that the applicant had no expectation of privacy in the contents of the computer when he left it at the store, I do find in the contents of the computer when he left it at the store, I do find that this expectation was significantly reduced.” para 36.that this expectation was significantly reduced.” para 36.

IP Addresses / CNA:IP Addresses / CNA:Reasonable Expectation of Reasonable Expectation of

Privacy?Privacy? What is the nature of the information? Does the information reveal intimate intimate

details of the lifestyle and details of the lifestyle and personal choices of the personal choices of the individual?individual?

Is the information part of the Is the information part of the biographical core of personal biographical core of personal information we call “private”?information we call “private”?

No REP in:No REP in: Hydro recordsHydro records

““electricity consumption reveals very little about the personal electricity consumption reveals very little about the personal lifestyle or private decisionslifestyle or private decisions of the occupant of the residence” and such of the occupant of the residence” and such does not give rise to a reasonable expectation of informational privacy.does not give rise to a reasonable expectation of informational privacy.

R. v. Plant R. v. Plant (1994), 84 C.C.C. (3d) 203 (S.C.C.): (1994), 84 C.C.C. (3d) 203 (S.C.C.): R. R. vv. Gomboc. Gomboc, 2010 SCC 55, 2010 SCC 55 Heat emanating from a houseHeat emanating from a house

““privacy” concerns not involved because little could be gained, in and of privacy” concerns not involved because little could be gained, in and of itself, about a person by looking at the amount of heat that emanated from itself, about a person by looking at the amount of heat that emanated from his home. A warrant could not be obtained with just this information…his home. A warrant could not be obtained with just this information…

R. v. TesslingR. v. Tessling (2005), 189 C.C.C. (3d) 129 (S.C.C.) (2005), 189 C.C.C. (3d) 129 (S.C.C.) Airline manifest informationAirline manifest information

The information targeted and obtained by the police amounted to nothing The information targeted and obtained by the police amounted to nothing more than the airline's record of Chehil's public activities in transacting more than the airline's record of Chehil's public activities in transacting business with the airline. The transactional record did not reveal intimate business with the airline. The transactional record did not reveal intimate details of his lifestyle or personal choices, nor was it specific and meaningful details of his lifestyle or personal choices, nor was it specific and meaningful information intended to be private and concealed. Chehil did not have a information intended to be private and concealed. Chehil did not have a reasonable expectation of privacy in the information, and the information-reasonable expectation of privacy in the information, and the information-gathering was not a search within the meaning of s. 8 of the Charter. gathering was not a search within the meaning of s. 8 of the Charter.

R. v. ChehilR. v. Chehil, [2009] N.S.J. No. 515, [2009] N.S.J. No. 515 Owner of Postal BoxOwner of Postal Box

R. v. StuckyR. v. Stucky, [2006] O.J. No. 108 (Sup. Ct.), [2006] O.J. No. 108 (Sup. Ct.) Bank Account informationBank Account information

R. v. LillicoR. v. Lillico (1994), 92 C.C.C. (3d) 90 (Ont.G.D.); aff’d [1999] O.J. No. 95 (C.A.) (1994), 92 C.C.C. (3d) 90 (Ont.G.D.); aff’d [1999] O.J. No. 95 (C.A.)

No REP in:No REP in: CNA as it relates to your cell phone CNA as it relates to your cell phone

numbernumber ““Cantel has, and indeed recognizes, its duty to keep personal Cantel has, and indeed recognizes, its duty to keep personal

information of it’s customers confidential, however it needs only information of it’s customers confidential, however it needs only to do so in respect of that information which tends to reveal to do so in respect of that information which tends to reveal intimate details of the customer’s personal lifestyle and choices. intimate details of the customer’s personal lifestyle and choices. The subscriber’s name and address do not fall within this The subscriber’s name and address do not fall within this category.”category.” R. v. Edwards,R. v. Edwards, [1999] O.J. No. 3819 (Sup. Ct.) [1999] O.J. No. 3819 (Sup. Ct.)

The fact that Mr. Cole is or is not a Roger’s (sic) subscriber does The fact that Mr. Cole is or is not a Roger’s (sic) subscriber does not in any way reveal any intimate details of the lifestyle and not in any way reveal any intimate details of the lifestyle and personal choices of the accused. …[It] is an innocuous piece of personal choices of the accused. …[It] is an innocuous piece of commercial information which would not attract section 8 commercial information which would not attract section 8 protection.protection. R. v. ColeR. v. Cole, [2006] O.J. No. 1402 (Sup. Ct.), [2006] O.J. No. 1402 (Sup. Ct.)

IP Addresses / CNA:IP Addresses / CNA:REP – Relevant FactorsREP – Relevant Factors

Nature of the InformationNature of the Information

Name and AddressName and Address


Who Holds the Contract?Who Holds the Contract?

Someone else’s name and address…Someone else’s name and address… where the utility is one that all members of a where the utility is one that all members of a

household will likely use the fact that the household will likely use the fact that the defendant didn’t formally enter into a contract defendant didn’t formally enter into a contract with the utility supplier does not preclude him with the utility supplier does not preclude him from having standing to raise a section 8 claimfrom having standing to raise a section 8 claim

See for example See for example R. v. MacInnisR. v. MacInnis (2007), 163 C.R.R. (2d) 111 (2007), 163 C.R.R. (2d) 111 (Ont. S.C.J.) at paras. 53-54(Ont. S.C.J.) at paras. 53-54


The Terms of the ContractThe Terms of the Contract

Service agreementsService agreements Acceptable Use AgreementsAcceptable Use Agreements Privacy PoliciesPrivacy Policies

All tend to say that where the ISP has reason to All tend to say that where the ISP has reason to suspect the user is involved in criminal activity suspect the user is involved in criminal activity that the ISP that the ISP will will provide information to the police.provide information to the police.


The Terms of the ContractThe Terms of the Contract

R. v. Cuttell,R. v. Cuttell, [2009] O.J. No. 4053 [2009] O.J. No. 4053 (C.J.):(C.J.):

"'... there is a reasonable expectation of privacy by "'... there is a reasonable expectation of privacy by an individual in their subscriber information.'an individual in their subscriber information.'

However…However…“…“…in a given case, it may well be that the contract in a given case, it may well be that the contract

between the subscriber and the ISP would lead to between the subscriber and the ISP would lead to the conclusion that there was no reasonable the conclusion that there was no reasonable expectation of privacy in the subscriber’s name expectation of privacy in the subscriber’s name and address.”and address.”


Privacy?Privacy? Re S.C., Re S.C., [2006] O.J. No. 3754 (Ct. Jus.)[2006] O.J. No. 3754 (Ct. Jus.)

Justice of the Peace refuses warrant because Justice of the Peace refuses warrant because of inclusion of ISP info obtained without of inclusion of ISP info obtained without warrant warrant

R. v. Connor,R. v. Connor, [2009] O.J. No. 3828 (Sup. Ct.) [2009] O.J. No. 3828 (Sup. Ct.) For oral reasons which I delivered earlier, I found that the For oral reasons which I delivered earlier, I found that the

searchsearch warrant was validly issued and that there was no warrant was validly issued and that there was no breach of Mr. breach of Mr. Connor'sConnor's CharterCharter rights with respect to the rights with respect to the obtaining of his name and address from Bell Sympatico.obtaining of his name and address from Bell Sympatico.


Privacy?Privacy? R. v. Kwok, R. v. Kwok, [2008] O.J. No. 2414 (Ct. [2008] O.J. No. 2414 (Ct.

Jus.) Jus.) Held that there is a reasonable expectation Held that there is a reasonable expectation

of privacy in the CNAof privacy in the CNA S.8 was therefore found to be violatedS.8 was therefore found to be violated Evidence excluded under s. 24(2)Evidence excluded under s. 24(2)


Privacy?Privacy? No reasonable expectation based on No reasonable expectation based on

the nature of the information the nature of the information (customer name and address) (customer name and address) R. v. WilsonR. v. Wilson, [2009] O.J. No. 1067 (Sup. Ct.), [2009] O.J. No. 1067 (Sup. Ct.) R. v. FriersR. v. Friers, [2008] O.J. No. 5646 (Ct. Jus.) – name alone says , [2008] O.J. No. 5646 (Ct. Jus.) – name alone says

very little about the intimate details of the lifestyle and very little about the intimate details of the lifestyle and personal choices of the individual.personal choices of the individual.

R. v. SpencerR. v. Spencer, [2009] SKQB 341, [2009] SKQB 341 R. v. McNeiceR. v. McNeice, [2010] B.C.J. No. 2131 (Sup. Ct.), [2010] B.C.J. No. 2131 (Sup. Ct.) R. v. BrousseauR. v. Brousseau, [2010] O.J. No. 5793 (Sup. Ct.), [2010] O.J. No. 5793 (Sup. Ct.)


Privacy?Privacy? No reasonable expectation of privacy based on the contractual No reasonable expectation of privacy based on the contractual

agreement with the ISPagreement with the ISP

R. v. WardR. v. Ward, [2008] O.J. No. 3116 (Ct. Jus.), [2008] O.J. No. 3116 (Ct. Jus.) – – distinguished Kwok distinguished Kwok based on user agreementsbased on user agreements

R. v. FriersR. v. Friers, [2008] O.J. No. 5646 (Ct. Jus.) – no relationship of , [2008] O.J. No. 5646 (Ct. Jus.) – no relationship of confidentiality as ISP “expressly disavowed confidentiality in confidentiality as ISP “expressly disavowed confidentiality in information relating to criminal activity”information relating to criminal activity”

R. v. VasicR. v. Vasic, [2009] O.J. No. 685 (Sup. Ct.) , [2009] O.J. No. 685 (Sup. Ct.) R. v. TrappR. v. Trapp, [2009] S.J. No. 32 (Prov. Ct.), [2009] S.J. No. 32 (Prov. Ct.) R. v. SpencerR. v. Spencer, [2009] SKQB 341, [2009] SKQB 341 R. v. EwanyshynR. v. Ewanyshyn, (unreported, March 29, 2009, Alta. Q.B.), (unreported, March 29, 2009, Alta. Q.B.) R. v. VergeR. v. Verge, (unreported January 22, 2009, Ont. C.J.), (unreported January 22, 2009, Ont. C.J.) R. v. McGarvie, R. v. McGarvie, (unreported January 9, 2009, Ont. C.J.) – (unreported January 9, 2009, Ont. C.J.) –

subjective expectation of privacy not objectively reasonable subjective expectation of privacy not objectively reasonable given his contractual relationship with ISPgiven his contractual relationship with ISP


Privacy?Privacy?(and only one following (and only one following KwokKwok))

R. v. CuttellR. v. Cuttell, , [2009] O.J. No. 4053 [2009] O.J. No. 4053 (Ct. Jus.)(Ct. Jus.) REP in CNA because police were able to learn REP in CNA because police were able to learn

intimate details – like Mr. Cuttell’s love of intimate details – like Mr. Cuttell’s love of pornographypornography

AND No loss of REP based on the contractual AND No loss of REP based on the contractual agreement with the ISP – because ISP was agreement with the ISP – because ISP was unable to verify which contract was in place.unable to verify which contract was in place.

Evidence admitted under s.24(2) – decision Evidence admitted under s.24(2) – decision admits the law is admits the law is unclear and in fact leans unclear and in fact leans the other way.the other way.

PART TWO:PART TWO:

DRAFTING THE ITO FOR A DRAFTING THE ITO FOR A COMPUTER SEARCHCOMPUTER SEARCH

Computer Searches:Computer Searches:Drafting TechniquesDrafting Techniques

Identify the Correct OffenceIdentify the Correct Offence

R. v. Morelli:R. v. Morelli: Possession of child pornographyPossession of child pornography

vs.vs.Accessing child pornographyAccessing child pornography

Computer Searches:Computer Searches:Drafting TechniquesDrafting TechniquesIdentify the DevicesIdentify the Devices


Identify the Relevance of the DataIdentify the Relevance of the Data

Breadth of search:Breadth of search: Include some explanation, in the Information to Obtain, Include some explanation, in the Information to Obtain,

as to why it is necessary to look at the whole hard drive as to why it is necessary to look at the whole hard drive to effect the search to effect the search oror why it’s necessary to why it’s necessary to image the image the whole hard drive to do a later searchwhole hard drive to do a later search:: Renaming filesRenaming files Password-protection, compression, encryptionPassword-protection, compression, encryption SteganographySteganography

R. v. CostaR. v. Costa, [2005] O.J. No. 3980 (Sup. Ct.), [2005] O.J. No. 3980 (Sup. Ct.) R. v. Bishop, R. v. Bishop, [2007] O.J. No. 3806 (Ct. Jus.)[2007] O.J. No. 3806 (Ct. Jus.)

U.S. v. Comprehensive Drug TestingU.S. v. Comprehensive Drug Testing,,579 F.3d 989 (9579 F.3d 989 (9thth Cir. 2009); Cir. 2009);

revised Sept. 13, 2010revised Sept. 13, 2010…computer files can be disguised in any number of ingenious ways, the simplest of which is to give files a misleading name (pesto.recipe in lieu of blackmail.photos) or a false extension (.doc in lieu of .jpg or .gz). In addition, the data might be erased or hidden; there might be booby traps that “destroy or alter data if certain procedures are not scrupulously followed,” …; certain files and programs might not be accessible at all without the proper software, which may not be available on the computer that is being searched; there may simply be too much information to be examined at the site; or data might be encrypted or compressed, requiring passwords, keycards or other external devices to retrieve. … The government also represented that “[s]earching computer systems requires the use of precise, scientific procedures which are designed to maintain the integrity of the evidence.


Identify the Proposed Analysis? Identify the Proposed Analysis?

PART THREE:PART THREE:

EXECUTING A COMPUTER EXECUTING A COMPUTER SEARCHSEARCH

OverseizureOverseizureLargest area of concern is that Largest area of concern is that

potential for computer search to go potential for computer search to go well beyond what is reasonable in well beyond what is reasonable in the circumstances.the circumstances.

OverseizureOverseizureR. v. MorelliR. v. Morelli [2010] SCC 8: [2010] SCC 8:

First, police officers enter your home, take possession of First, police officers enter your home, take possession of your computer, and carry it off for examination in a place your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; your hard drive: your emails sent and received; accompanying attachments; your personal notes and accompanying attachments; your personal notes and correspondence; your meetings and appointments; your correspondence; your meetings and appointments; your medical and financial records; and all other saved medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.generally by design, but sometimes by accident.

R. v. Dragos,R. v. Dragos, [2009] O.J. No. 4045 ( Sup. Ct.) [2009] O.J. No. 4045 ( Sup. Ct.)

Warrant to search computer did not contain Warrant to search computer did not contain any limitations.any limitations.

Court concluded there was no s. 8 violation:Court concluded there was no s. 8 violation:

“’“’[the detective] and [the forensic analyst] [the detective] and [the forensic analyst] testified that they believed it was necessary to testified that they believed it was necessary to search the computer system to establish the search the computer system to establish the identity of the owner and user of the computer. identity of the owner and user of the computer. The officers testified that a search for resumes The officers testified that a search for resumes and family photos would be reasonable to and family photos would be reasonable to obtain evidence of identity of the user of the obtain evidence of identity of the user of the computer”.computer”.

R. v. Little, R. v. Little, [2009] CanLII 41212 (Ont. Sup. [2009] CanLII 41212 (Ont. Sup. Ct.)Ct.)

On the Treo:On the Treo:“…“…the police made no attempt to focus or minimize the the police made no attempt to focus or minimize the

scope of the search of the Treo’s contents, as the police scope of the search of the Treo’s contents, as the police did in searching the Blackberry in did in searching the Blackberry in GilesGiles. .

On the office computer:On the office computer:““I accept that file names alone are not necessarily I accept that file names alone are not necessarily

indicative of their content. On the evidence in this case, indicative of their content. On the evidence in this case, a manual search by which each file was opened and a manual search by which each file was opened and looked at cursorily to determine whether it fell within looked at cursorily to determine whether it fell within the parameters of the warrant was not unreasonable, if the parameters of the warrant was not unreasonable, if the reviewing officers immediately closed those files the reviewing officers immediately closed those files that clearly fell outside the warrant and moved on.” that clearly fell outside the warrant and moved on.” para 166.para 166.

Protocols, Dead or AliveProtocols, Dead or AliveProtocol – the idea that a search of a Protocol – the idea that a search of a

computer must in some way be computer must in some way be restricted given the shear volume of restricted given the shear volume of data which may be found on a data which may be found on a computer and the inherent privacy computer and the inherent privacy concerns.concerns.

Talking to AmericansTalking to AmericansMost American Courts have rejected Most American Courts have rejected the proposition for protocols as the proposition for protocols as essentially unworkable:essentially unworkable:

U.S. v. UphamU.S. v. Upham, 168 F. 3d 532 (1, 168 F. 3d 532 (1stst. Cir. 1999). Cir. 1999)U.S. v. BrooksU.S. v. Brooks, 427 F. 3d 1246 (10, 427 F. 3d 1246 (10thth Cir. Cir.

2006)2006)U.S. v. GrazianoU.S. v. Graziano 2008 U.S. Dist LEXIS 22408 2008 U.S. Dist LEXIS 22408

at 22at 22

U.S. v. Comprehensive Drug TestingU.S. v. Comprehensive Drug Testing,,579 F.3d 989 (9579 F.3d 989 (9thth Cir. 2009) Cir. 2009)

Appears to require:Appears to require:

1.1. search protocolssearch protocols2.2. waiver of plain viewwaiver of plain view3.3. taint teamstaint teams4.4. whatever else the issuing court wants to whatever else the issuing court wants to

imposeimpose

PART FOUR:PART FOUR:

SEARCHING CELL PHONES SEARCHING CELL PHONES INCIDENT TO ARRESTINCIDENT TO ARREST

The splitThe splitR. v. GilesR. v. Giles, [2007] B.C.J. No. 2918 (S.C.), [2007] B.C.J. No. 2918 (S.C.)

The police seized a email enabled The police seized a email enabled smartphone from an arrestee believed to smartphone from an arrestee believed to be leader of gang taken down two weeks be leader of gang taken down two weeks ago. He was denied bail and the police ago. He was denied bail and the police want to know if they can read his emails want to know if they can read his emails and other info on the phone, and do they and other info on the phone, and do they need any additional process to do so?need any additional process to do so?

The splitThe splitR. v. GilesR. v. Giles, [2007] B.C.J. No. 2918 (S.C.), [2007] B.C.J. No. 2918 (S.C.)

Counsel argues for a “Blackberry Counsel argues for a “Blackberry exception” to search incident to arrest exception” to search incident to arrest because of high degree of privacy. The because of high degree of privacy. The argument is rejected at para 65 - 68argument is rejected at para 65 - 68

R. v. WeirR. v. Weir, [2001] A.J. No. 869 , [2001] A.J. No. 869 (C.A.)(C.A.)

“…“…as long as the CPU was seized as long as the CPU was seized properly, the information contained properly, the information contained in it could be extracted at a later in it could be extracted at a later date. To adopt the analogy used by date. To adopt the analogy used by the trial judge, this is not unlike the the trial judge, this is not unlike the seizure of blood in which police do seizure of blood in which police do not want the blood, but rather, the not want the blood, but rather, the information that the blood can information that the blood can provide.”provide.”

R. v. Lefave, R. v. Lefave, [2003] O.J. No. 3861 (Sup. [2003] O.J. No. 3861 (Sup. Ct.)Ct.)

““Here, the seizure of the laptop computer Here, the seizure of the laptop computer was incidental to the investigation of was incidental to the investigation of the alleged crime of threatening or the alleged crime of threatening or communication. The examination of the communication. The examination of the data in the computer was a reasonable data in the computer was a reasonable procedure to determine if there was any procedure to determine if there was any evidence on it to connect the accused evidence on it to connect the accused with the crime in question.” para 30with the crime in question.” para 30

R. v. PoliusR. v. Polius [2009] O.J. No. 3074 (Sup. [2009] O.J. No. 3074 (Sup. Ct.)Ct.)

In my view, the power to SITA includes a power to conduct a cursory inspection of an item to determine whether there is a reasonable basis to believe it may be evidence of the crime for which the arrest was made. However, any examination of an item beyond a cursory examination of it is not within the scope of the power to SITA.

R. v. LittleR. v. Little ,, [2009] CanLII 41212 (Sup. [2009] CanLII 41212 (Sup. Ct.)Ct.)

… … to suggest that once the police had lawful to suggest that once the police had lawful possession of the Treo they could examine its possession of the Treo they could examine its entire contents without obtaining a warrant entire contents without obtaining a warrant authorizing its search is to ignore the nature authorizing its search is to ignore the nature of the item.of the item. It was not simply a cellular telephone, It was not simply a cellular telephone, but rather a personal electronic storage device. It but rather a personal electronic storage device. It was capable of storing data such as call logs, text was capable of storing data such as call logs, text messages, photographs and movies, any or all of messages, photographs and movies, any or all of which could include highly personal information. Its which could include highly personal information. Its contents were not immediately visible to the eye, contents were not immediately visible to the eye, but had to be extracted by a police officer with but had to be extracted by a police officer with specialized skills using specialized equipment. In specialized skills using specialized equipment. In this way, it was different from a notebook, briefcase this way, it was different from a notebook, briefcase or purse.or purse.

R. v. LittleR. v. Little ,, [2009] CanLII 41212 (Sup. [2009] CanLII 41212 (Sup. Ct.)Ct.)

… … If the police wished to examine the If the police wished to examine the information stored in the Treo, they should information stored in the Treo, they should have applied for a warrant authorizing the have applied for a warrant authorizing the search of its contents.search of its contents. The Treo was safely in The Treo was safely in their possession. There was no urgency to search their possession. There was no urgency to search its contents, nor were there other circumstances its contents, nor were there other circumstances that made it impracticable to obtain judicial that made it impracticable to obtain judicial authorization for the search. The police search of authorization for the search. The police search of the contents of the Treo violated Mr. Littlethe contents of the Treo violated Mr. Little’’s s. 8 s s. 8 rights.rights.

R. v. Manley,R. v. Manley, 2011 ONCA 128 (C.A.) 2011 ONCA 128 (C.A.)… … it is neither necessary nor desirable to attempt to provide a it is neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to search the stored comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest. However, I would observe it is data in cell phones seized upon arrest. However, I would observe it is apparent that the traditional rules defining the powers of the police to apparent that the traditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of modern technology. While I manner that takes into account the facts of modern technology. While I would not apply would not apply PoliusPolius in the particular circumstances of this case, I am far in the particular circumstances of this case, I am far from persuaded that from persuaded that PoliusPolius was wrongly decided or that it ought to be was wrongly decided or that it ought to be overruled. Cell phones and other similar handheld communication devices overruled. Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant any arrested person clearly raises the spectre of a serious and significant invasion of the invasion of the CharterCharter-protected privacy interests of arrested persons. If -protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.course is for them to obtain a warrant authorizing the search.

SEARCHING CELL PHONES SEARCHING CELL PHONES INCIDENT TO ARRESTINCIDENT TO ARREST

Conclusion (Conclusion (perper PoliusPolius):):

Other than a “cursory inspection of an Other than a “cursory inspection of an item to determine whether there is a item to determine whether there is a reasonable basis to believe it may be reasonable basis to believe it may be evidence of the crime for which the arrest evidence of the crime for which the arrest was made”, there should be no search of a was made”, there should be no search of a cell phone (and, presumably, other cell phone (and, presumably, other electronic devices) without warrant. electronic devices) without warrant.

ENDEND

search and seizure: computers & electronic devices

Documents

personal computers

rep computer

personal information

ones computer

computer searchexecuting

work computer

personal situations

personal useas