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Can police search a person's phone after arrest?

In short

Sometimes, but with real limits. Police generally need a warrant or another legal reason to search a phone, and a search after arrest has to be connected to the reason for the arrest and limited in scope. Whether someone has to give a passcode is a complex area the office can go over.

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Written by Ali Sheikh, founder of Remandly (not a lawyer) · Published under a standard reviewed by an Ontario-licensed criminal lawyer, called to the bar in 2017.

Transcript

Sometimes, but with real limits. Police generally need a warrant or another legal reason to search a phone, and a search after arrest has to be connected to the reason for the arrest and limited in scope. Whether someone has to give a passcode is a complex area the office can go over.

Police can search a phone in some situations after an arrest, but there are real limits on when and how far that search can go. A search of a phone incident to arrest has to be genuinely connected to the reason for the arrest.

It has to be limited in scope rather than a general trawl through everything on the device, and police are required to take detailed notes of what they looked at and why. In many other situations police need a warrant.

Whether someone has to give police a passcode or unlock a device is a complex area — the office can go over it.

This area of law comes from constitutional protections against unreasonable search and seizure rather than from provincial rules. Whether a particular search was lawful, and what that means for a particular case, is something only a lawyer reviewing the file can assess — the office goes through it with you on the call.

Sources: Criminal Code of Canada · Canadian Charter of Rights and Freedoms (s. 8) · Law Society of Ontario · Legal Aid Ontario

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