Police search of man’s BlackBerrys a breach, but appeal still dismissed

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British Columbia's highest court says police must obtain a warrant before searching through the vast amounts of personal information stored in a smartphone, the latest in several court judgments across Canada warning law enforcement that the contents of cellphones are private.

The B.C. Court of Appeal released a decision Wednesday that concluded the RCMP violated the rights of a man charged in a kidnapping when they searched two of his BlackBerry smartphones without a warrant.

The man was convicted at trial and, despite the warrantless search, the Appeal Court upheld that conviction in Wednesday's ruling.

But the court also made it clear that police must ask for permission before examining the contents of a smartphone.

"It seems to me that downloading the entire contents of a cellphone or smartphone, like the BlackBerrys in this case ... can no longer be considered valid ... as a reasonable warrantless search," Justice Risa Levine wrote in a unanimous decision.

"The highly invasive nature of these searches exceeds the permissible scope for a warrantless search authorized under the common law as a search incident to arrest."

Rajan Singh Mann was a suspect in a 2006 kidnapping in Richmond, south of Vancouver. He was arrested on two separate occasions, and each time the RCMP seized his BlackBerry, which contained text messages that were used against him at trial.

The RCMP's technological crime unit collected the data from one of the phones a few weeks later. The other was protected with a password and its contents weren't retrieved for two years.

The phones were seized under a principle known as a "search incident to arrest," which allow police to search a suspect for items such as weapons or evidence when they're taken into custody.

At the time of Mann's arrest, previous court rulings had treated a cellphone like a notebook or diary, which could be searched without a warrant if they were found during an arrest.

But the B.C. Appeal Court said subsequent rulings have made it clear that smartphones are in a different category.

"It now seems obvious that the individual's privacy interest in the contents of a device such as a BlackBerry outweighs the state's interest in law enforcement," Levine wrote.

The ruling nonetheless dismissed Mann's appeal, which raised several grounds, including the BlackBerry searches. Levine said police were acting reasonably based on the law at the time.

Raji Mangat of the B.C. Civil Liberties Association, which intervened in the case, applauded the ruling.

"This (a smartphone) is a different type of object — it has implications for privacy interests that go well beyond anything that was contemplated when the law was developing," Mangat said.

"The state of the law is now clear. ... Uncertainty in the law doesn't help anyone."

The Supreme Court of Canada is expected to rule on a similar case soon. The high court heard a case earlier this year dealing with phones that are found on suspects when they are arrested.

Mann was convicted two years ago for his role in a kidnapping that saw Gary Kwong taken by gunpoint and held for a $100,000 ransom. Kwong was released unharmed the next day and no ransom was paid.

Charges were originally laid against Mann, William Joshua Scott and Terry James Richardson. Scott pleaded guilty and Richardson died before the case was finished.