Cell phone-as-briefcase analogy no longer works, says Goldstein
An upcoming appeal on the issue of whether police can look through an accused’s cell phone without a warrant will likely delve further into the new idea that mobiles are not like briefcases, but digital portals, says Toronto criminal lawyer Sam Goldstein. Read Fearon Factum
The appellant in the case, Kevin Fearon, was charged with various counts of weapons offences after he was seen associating with a suspect in an armed jewelry robbery. He was stopped and searched and found with a cell phone in his pocket. The police removed his cell phone and began looking through it for evidence to connect him to the robbery, says Goldstein, who is representing Fearon.
His cell phone was searched both at the scene of this arrest and throughout the night while he was held in custody. The officer on scene saw a photograph of a handgun and an unsent text. The phone also contained a photograph of a handgun later identified by the victim as similar to the handgun pointed at her during the robbery, adds Goldstein.
According to the factum, Fearon’s conviction “rested on the admissibility of the cell phone evidence and his confession.”
In appealing his December 2010 conviction, the appellant is challenging the admissibility of his statement and says that had the court had the benefit of the decision in R v. Manley, [2011] O.J. No. 642, (released after the decision in the accused’s trial), the judge’s analysis would have been different and she would have excluded the cell phone evidence.
“Seizure and searches of cell phones is becoming more frequent with the ubiquitous use of cell phones and they are literal digital drop boxes of private information,” says Goldstein.
“Courts have been slow in recognizing that the standard thinking of a cell phone as a briefcase and analysis no longer works. Cell phones are more like digital portals. Unlike in a briefcase, when you remove a document from a cell phone, there is always a trace of it left. Moreover, cell phones also function like time machines. You can go back in time to see what a person was browsing on the Internet or sit on the phone and wait to see who is contacting the cell phone’s owner in the future,” he adds.
The Canadian Civil Liberties Association, Criminal Lawyers Association and Federal Prosecution Services have all sought leave of the court to act as intervenors in the case, says Goldstein.
The appeal is set to be heard Sept. 7 at the Ontario Court of Appeal.
