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In light of the availability of the exigent circumstances
exception, there is no reason to believe that law enforcement
officers will not be able to address some of the more extreme
hypotheticals that have been suggested: a suspect texting an
accomplice who, it is feared, is preparing to detonate a bomb,
or a child abductor who may have information about the child’s
location on his cell phone. The defendants here
recognize—indeed, they stress—that such fact-specific threats
may justify a warrantless search of cell phone data. See Reply
Brief in No. 13–132, at 8–9; Brief for Respondent in
No. 13–212, at 30, 41. The critical point is that, unlike the
search incident to arrest exception, the exigent circumstances
exception requires a court to examine whether an emergency
justified a warrantless search in each particular case. See
McNeely, supra, at ___ (slip op., at 6).”
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B3.3 The search power under section 50(6) in relation to content
of a seized mobile phone
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43.
For the present purposes, the relevant words of section 50(6)
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are: “Where any person is apprehended by a police officer it shall be
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lawful for such officer to search for … any article or chattel which … the
said officer reasonably suspect to be of value … to the investigation …”.
44.
It is common ground among the parties that the words
“article or chattel” on their plain meaning must include a mobile phone.
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The only question is whether the words “lawful … to search
for … any [mobile phone]” on a proper construction also empower the
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police officer to search without a warrant the digital content of the
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mobile phone so seized of, and if so, whether such authorization is
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constitutional in complying with BOR14 and BL30.
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