- 16 A
B
A
39.
In Riley, the Supreme Court of the United States was
B
concerned with the question of whether a warrantless search of the
C
D
content of a mobile phone seized upon arrest was constitutional under the
Fourth Amendment of the US Constitution.
Relevantly, the Fourth
C
D
Amendment provides:
E
E
“… the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oaths or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.”
F
G
H
F
G
H
40.
As with section 8 of the Canadian Charter, the touchstone of
I
the Fourth Amendment is about “reasonableness” of a search, and
I
J
thereunder prima facie, a warrantless search is unreasonable.
J
K
K
41.
L
M
The US Supreme Court comes to the same conclusion as the
minority in Fearon that a warrantless common law search of the contents
L
of a mobile phone seized on a lawful arrest is only reasonable (and hence
M
constitutional) if it is made for exigent circumstances. See pp 15 - 16.
N
O
N
42.
In coming to this conclusion, again, the US Supreme Court
O
emphasizes the great importance in the protection of privacy rights, and
P
Q
the fact that nowadays cell phone contains massive and very private
personal information and data, which must be subjected to protection in
law in the balancing exercise.
R
S
T
Q
The court’s view is that the common law
exception of exigent circumstances provides the appropriate balance
between the interests of effective law enforcement and the importance of
privacy protection.
P
R
S
In particular, one must still remember that it is
always open to the police to obtain a warrant (if so justified) to search the
T
U
U
V
V
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