- 26 A B A The problems of “impracticality, police uncertainty, and 60. B increased after-the-fact litigation” are indeed illustrated in Cromwell J’s C D own reasons in Fearon as pointed out by Mr Pun. For example: (1) On the first requirement that “the scope of the search must C D be tailored to the purpose for which it may lawfully be E conducted”, in practice, “this will mean that, generally, even when a cell phone search is permitted because it is truly F E F incidental to the arrest, only recently sent or drafted emails, G texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link H G H to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may I I in some circumstances be justified. The test is whether the J nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase K J K Caslake, the police must be able to explain, within the permitted purposes, what they searched and why ...”. L (paragraph 76, emphasis added) M (2) N O L M Another requirement is that the “discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation N O will be stymied or significantly hampered absent the ability P to promptly search the cell phone incident to arrest.” “This P will mean, in practice, that cell phone searches are not Q R routinely permitted simply for the purpose of discovering additional evidence. The search power must be used with Q R great circumspection. It also means, in practice, that the S police will have to be prepared to explain why it was not S practical (and I emphasize that this does not mean T impossible), in all the circumstances of the investigation, to T U U V V