New HTC One smartphone.Simon Dawson/Bloomberg
Can the police freely enter your house without a search warrant if you happen to have left the front door unlocked? The answer to that rhetorical question is "No."
But in a decision last Wednesday concerning a cellphone, the Ontario Court of Appeal appears to have lost sight of the essential principles of the search-warrant requirement. Sir Edward Coke wrote in 1644, "A man's house is his castle." Today, cellphones often have contents that are just as private as the things inside one's home – they are not inviolable, but part of a privacy that is only to be breached with due process.
When a certain Kevin Fearon was arrested for armed robbery in 2009, his cellphone was found. It was not locked – no password was needed – but a police officer had to tap on the keyboard to get into it. In a dwelling, if an officer enters with a search warrant and sees a gun or something else relevant, in plain view, he or she has a right to seize it as evidence. But the text message and photographs that were inside Mr. Fearon's cellphone were not in plain view.
Months later, another officer quite properly applied for and obtained a search warrant for the cellphone's contents.
Mr. Fearon did not deny committing a robbery, but he claimed he had used only an imitation handgun; the cellphone evidence was arguably relevant on this point.
The police in this case did not behave outrageously or oppressively, but then again Mr. Fearon burst into tears and was quite co-operative after he was arrested. He gave a full, videotaped confession on the day of the offence.
The Court of Appeal held that the police can make a "cursory" examination of a cellphone's contents if they do not have a search warrant.
By analogy, an officer who lacks a warrant would be able to open an unlocked front door, peek in, glance around and depart. That is not a clear or convincing middle way to deal with this issue.
The judges said they would not "carve out" a new exception to the law of search warrants. Recourse to the principles of search, however, would show that the argument made on Mr. Fearon's behalf was not a carve-out, but a reassertion of the essence of the warrant requirement.