Search and Seizure of Mobile Phones Incidental to Arrest: Balancing Law Enforcement Powers and Privacy Protection

Abstract

One of the contested interfaces between law enforcement, privacy, and technology concerns the entitlement of law enforcement agents to search the contents of mobile (or cell) phones seized incidental to arrest or pursuant to lawful search and seizure powers, for evidence relating to the alleged criminality giving rise to the arrest or exercise of search and seizure powers. Such a common place law enforcement process significantly invades a person’s informational privacy interests, and has prompted a succession of recent legal challenges in courts across a number of jurisdictions, including the US, Canada, and Hong Kong, with varying outcomes. In the US, for example, the US Supreme Court, in Riley v. California 573 U.S. (2014), unanimously ruled that the Fourth Amendment applied and obliged police to obtain a warrant to search the cell phone of an arrestee. In Canada, on the other hand, the Supreme Court of Canada in Fearon v. R [2014] 3 SCR 621, ruled that existing common law powers of search without warrant incidental to arrest prima facie extended to search of a cell phone, but the Court also heeded the need to carefully circumscribe this search power to ensure compliance with section 8 of the Canadian Charter of Rights and Freedoms. Having found that the search in this case had not complied with such safeguards, and thus constituted a breach of section 8, the Court nonetheless concluded that the evidence obtained by the search in this case should not be excluded, exposing the potential weakness of privacy protection in the face of the exigencies of law enforcement. More recently, the courts of Hong Kong likewise concluded that the statutory powers of law enforcement agents to search and seize, incidental to arrest, should be stringently applied with a view to providing privacy protection. This issue has become more complex in recent times due to the increasing availability and ease of use of encryption on mobile phones, necessitating law enforcement and national security agencies to obtain judicial orders permitting access to encrypted data. This paper will examine this growing body of judicial decisions with a view to comparing the distinct constitutional and informational privacy norms applied by these different jurisdictions in determining the legitimate parameters of law enforcement powers to search mobile phones seized incidental to arrest, and identifying and assessing the points of divergence between these seemingly similar legal traditions and their rationales.