At common law a cell phone, seized when a person is arrested,
cannot be searched. I say “at common law” because the rule may be modified,
subject where relevant to any constitutional constraints, by legislation, which, for example may provide for authorisation of such a search by warrant.
“Modern
cell phones are not just another technological convenience. With all they
contain and all they may reveal, they hold for many Americans “the privacies of
life,”... The fact that technology now allows an individual to carry
such information in his hand does not make the information any less worthy of
the protection for which the Founders fought. Our answer to the question of
what police must do before searching a cell phone seized incident to an arrest
is accordingly simple— get a warrant.”
Riley v California, USSC No 13-132
(25 June 2014), Roberts CJ delivering the opinion of the Court.
The Supreme
Court of Canada has similarly recognised the enhanced privacy interests that
can be associated with electronic information, holding that a warrantless
obtaining of information about a computer user’s name and address, from an internet
service provider, was illegal, where the information was used to link that
person to particular internet usage: R v
Spencer, 2014
SCC 43 (13 June 2014). But here the illegally obtained evidence was
admissible because the public interest in obtaining a conviction outweighed the
breach of the defendant’s privacy.
A
breach-but-admissible result also occurred in R v Cole, 2012 SCC 53, noted here
on 9 November 2012.
Activity can
be called a search if it involves a breach of a legitimate privacy interest
(both Riley and Spencer illustrate this) or if it involves a trespass (there are
many illustrations; see for example United
States v Jones mentioned briefly here
on 31 March 2012).
In Spencer the Court did not assert that
there is a right to privacy (anonymity)
in relation to online activity, only that there can be such a right [49]. The Court referred to its previous
recognition of significant privacy interests in relation to online activity in
R v Morelli, 2010 SCC 8 (CanLII),
2010 SCC 8, [2010] 1 S.C.R. 253, at [3], noted here
on 23 March 2010, R v Cole above, and
R v Vu, 2013 SCC 60 (CanLII), 2013
SCC 60, [2013] 3 S.C.R. 657, at [40]-[45], noted here
on 17 November 2013. One might fairly ask whether it is appropriate to make the existence of a right dependent on circumstances. More logically, a right does, or does not, exist, and if it exists, the next question is how it interacts with other rights.
For an example of legislation that modifies the common law on search of electronically stored information, see my comments on Vu. That legislation, which I blush to admit is New Zealand's, seems to authorise a search of a cell phone in circumstances which include where a person can be searched without warrant, not merely where there are reasonable grounds to believe relevant information will be found, and not on the lesser threshold of reasonable grounds to suspect, but simply on the basis that the information "may" be found.
I do not think that Riley justifies a reading-down of statutory powers of warrantless search in New Zealand. The express power in s 88 of the Search and Surveillance Act 2012, coupled with the elaboration of the powers in relation to places and vehicles in s 110 and persons in s 125 are not stated to be only exercisable if it is impracticable to obtain a warrant. But the overarching requirement of s 21 of the New Zealand Bill of Rights Act 1990 is one of reasonableness, implicitly both as to the decision to exercise the power of warrantless search and to the manner of carrying out the search. An issue of reasonableness will be a case-specific inquiry. It would be wrong to say that a warrantless search of a cell phone or a computer that was in the possession of an arrested person will always be unreasonable.
For an example of legislation that modifies the common law on search of electronically stored information, see my comments on Vu. That legislation, which I blush to admit is New Zealand's, seems to authorise a search of a cell phone in circumstances which include where a person can be searched without warrant, not merely where there are reasonable grounds to believe relevant information will be found, and not on the lesser threshold of reasonable grounds to suspect, but simply on the basis that the information "may" be found.
I do not think that Riley justifies a reading-down of statutory powers of warrantless search in New Zealand. The express power in s 88 of the Search and Surveillance Act 2012, coupled with the elaboration of the powers in relation to places and vehicles in s 110 and persons in s 125 are not stated to be only exercisable if it is impracticable to obtain a warrant. But the overarching requirement of s 21 of the New Zealand Bill of Rights Act 1990 is one of reasonableness, implicitly both as to the decision to exercise the power of warrantless search and to the manner of carrying out the search. An issue of reasonableness will be a case-specific inquiry. It would be wrong to say that a warrantless search of a cell phone or a computer that was in the possession of an arrested person will always be unreasonable.
