Is a police officer allowed to search your cell phone? Not without your consent or a warrant. If the police do not follow the rules, your
Charter Rights may have been breached. If so, your criminal defence lawyer can ask that any evidence collected during the cell phone search is excluded. This means it cannot be used to convict you.
If the police have a search warrant
If the police have a warrant that specifically allows them to search your cell phone, you must hand it over. However, you do not have to provide your password.
Where the police have seized your cell phone using a search warrant, it is worth speaking to a criminal defence lawyer about the incident. There may be grounds to argue that the search was not reasonable, or the search warrant was invalid. If either of these arguments can be established, you can ask to have the evidence excluded and your phone returned.
If the police do not have a search warrant
But what if you are arrested and the police do not have a search warrant? In these situations, the police can seize your cell phone, although only if the following conditions apply –
- The arrest is lawful
- The seizure is carried as part of the arrest and there is a reasonable basis for it, in this sense that it is connected to the arrest in one of the following ways – to protect the safety of the police/accused/public or to preserve evidence relating to the crime
- The seizure must be connected to the offence you have been arrested for
If you have been arrested and your phone seized and searched, the police may have seized and searched your phone without legal authority. That is why it is best to speak to a criminal defence lawyer straightaway.
Do you have to provide the password?
If your cell phone is password-protected, the police might ask you to unlock the device. You have the right to remain silent and you do not have to provide the password. Nevertheless, the police may seek legal authorization and technical assistance and attempt to unlock your phone.
Have your rights been breached?
The starting point is whether you have actually been lawfully arrested. Unless you have been lawfully arrested or there is a valid search warrant, you are not obliged to provide a police officer with your cell phone – you must either give your consent or the police must have legal authority from a lawful arrest or search warrant.
If they fail to meet these conditions, the search may be deemed unlawful. This is because Section 8 of the Canadian Charter of Rights and Freedoms protects you against unreasonable search and seizure.
If a cell phone search does amount to a breach of your Charter rights, the evidence collected during the search cannot be used against you.
Contact an Experienced Criminal Defence Lawyer If Your Cell Phone Has Been Searched
If you have been arrested and you need legal representation, we can help. Also, if your cell phone has been searched and you think the police acted unlawfully, we can advise you further.