- 14 A A be stymied or significantly hampered absent the B B ability to promptly search the cell phone incident to C C arrest. (3) D The nature and extent of the search are tailored to the D purpose of the search. E (4) on the device and how it was searched. F G The police take detailed notes of what they have examined See: paragraphs 58 - 64. H 33. J F G H I E Although the police in that case failed to comply with the fourth condition in relation to the search, the majority have found that the prejudice caused to the applicant because of that non-compliance was I J minimal (given the particular circumstance of that case) and hence the K L M N evidence should still be admissible. The appeal was therefore dismissed. 34. K L The minority (LeBel, Abella and Karakatsanis JJ, with judgment delivered by Karakatsanis J) on the other hand have concluded M N that the common law right to search without warrant should only be O P carried out in exigent circumstances to be compliant with section 8. There were no exigent circumstances in that case, and therefore the search was unconstitutional. Q O P The evidence therefore should not be Q admitted. R R 35. While agreeing that there is a common law power of search S S incident to an arrest, the minority have emphasized that an individual’s T right to a private sphere is a “hallmark of” a free and democratic society, T U U V V