Smartphones are equivalent to computers for purposes of police search, says Nova Scotia court

In R. v. Hiscoe, 2011 NSPC 84, the Provincial Court of Nova Scotia has determined that the police can read texts on the accused's smartphone without a warrant (as incident to arrest) but need a warrant to forensically dump the contents of the phone for analysis.

Notably, the Court characterized the phone as a computer and observed that the same considerations come into play as with a search of a personal computer:

[39] The Crown acknowledges that the accused had a reasonable expectation of privacy in the contents of his cellphone and that the three occasions when the police examined and retrieved information from the cellphone constituted a warrantless search which constituted a prima facie unreasonable search[30] for the purposes of s. 8 of the Charter. Having said that, in my opinion it is important to characterize the degree or level of privacy in the smart phone information and how that information is stored because, in my opinion, it is a factor in deciding the scope of the police authority to search a cellphone incident to arrest.

[40] Here the cellphone which was seized was described as a “regular smart phone, a Blackberry sort of phone”. Phones of this sort have been described as “mini computers”[31]. These phones are capable of storing dozens of gigabytes of data not unlike personal or home computers. There is a high level of privacy associated with personal computers[32]. In R. v. Morelli, supra Justice Fish said at para. 2 “It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer”. He continues at para. 3 :

First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet -- generally by design, but sometimes by accident.

[41] Later at para. 105 he describes the nature of information computers contain:

Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

Blackberrys and other smart phones function in the same way as personal computers[33].

[42] Other case authorities[34] are consistent in their conclusions that smartphone devices have the capacity to store vast amounts of sensitive and personal and private information including emails, text messages, contact lists, diaries, medical information and personal photographs as well as internet browsing histories.

[43] Given the advances in technology, these types of devices allow individuals to carry their entire personal information library with them. In my opinion, it is difficult to compare a smartphone with a notebook or briefcase one might carry or have for a specific purpose. Smartphones have several gigabytes of data storage which can store literally thousands of documents, photographs, messages or hundreds of thousands of filed data[35]. This, of course, does not take into account current technological advances regarding Cloud[36] storage and electronic and computer device sharing features which could increase the information available from a hand-held electronic device.

[44] While the accused did not testify as to the level of privacy – the Crown has admitted the accused had a reasonable expectation of privacy in the cell phone. I agree with the conclusion reached by Fuerst, J in R. v. Little, supra, at para. 120, that the subjective expectation of privacy can be presumed. This subjective expectation of privacy is objectively reasonable for the reasons I expressed above. Furthermore, the high level of privacy which I described can be inferred as well. In my opinion this privacy level exists irrespective of whether the phone is password protected. The lack of a password is not an invitation to view the personal contents contained in the device especially from the prying eyes of the state.

[45] Finally, I would add that like other computers, cellphones are organized in a way that separates voice messages, text messages, documents, photographs, browser history and other information. The information is not stored in one big container to use perhaps a poor analogy. It is possible to look at text messages without looking at photographs, for example. It is not necessary to examine ones voice memos to read text messages or documents.