You have been told you’re under arrest for an alleged crime by police. Now the officer at your door wants to search your cellphone and is even asking for the password from you. Can you refuse to provide the password? If you decline to unlock your cellphone, can officer still access its contents? What if your phone was already unlocked, can the officer start scrolling through your stuff? The answer can be complex and can rely on the circumstances at the time of the arrest. If the police have been approved for a search warrant, they will of course lawfully explore whatever it is they’ve been permitted to search for. However, in instances where the arrest has just been made, it is expected that police will not have a warrant to examine your belongings. So the real question: whether the police is permitted to search an individual's phone as part of an investigatory step during an arrest. What the courts inspect when officers look through your cellphone is whether that search was completed “incidental to the arrest.” Due to the rapid pace of evolving technology, this question was presented to the Supreme Court of Canada in 2014, where the dominant opinion laid out four criteria police need to fulfill when they examine your cellphone. The four circumstances when police can conduct a cellphone search without a warrant:
Police do not have the right to examine your phone without restrictions. They may, for example, have the right to examine conversations that took place in a reasonable time frame connected to the offense you are being accused of. The right does not extend to accessing all of your phone’s history. Given that, and how cell phones work and offer information to the end-user, criminal defense lawyer say that it is utterly possible that the police could unwillingly access unrelated information when conducting a lawful search. Do I Have to Give My Phone Password? What If I Deny? If your cellphone is password-protected, you do not have to provide police that password due to your right to keep quiet during your arrest. However, police have additional means to unlock your device, for instance, doing a forensic search or trying different passwords. It is uncertain from the Supreme Court ruling if police have the right to seize your cellphone to conduct a detailed search. For that, the police may have to acquire a warrant. Contact Us: If you would like more information about what the police can search on your phone during an arrest, Contact Gerri Wiebe, the expert in legal help Winnipeg.
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