In mid-December, a colleague of mine, Jon Doody, wrote a blog post regarding the rights of police to search a residence when conducting an investigation, such as into drug offences. He outlined the ways in which police may enter a person’s residence and search. A common way for the police to search a residence is by obtaining a search warrant, which Mr. Doody explained was a document that the police obtain from a judicial officer.
A search warrant must outline the place to be searched, what is being sought in the search, what the offences are alleged to have been committed to justify the search, and the grounds to justify the search. A search of the residence includes searching receptacle. So as an example, if the police are looking for drugs in a drug investigation, they can usually search cabinets, cupboards or drawers when they have been authorized to search a house.
But what about a computer or a cellphone that is found in the house? Are the police simply allowed to search these devices?
Computers and cellphones contain a significant amount of private information. These days, computers have large storage capacities and people may not be able to control the information on their devices or even know whether information exists on their devices. For example, a document that you believe you have deleted may still exist in a temporary folder or in the recycle bin on your computer. Similarly, most people own smart phones which are almost mini computers; they have large amounts storage and have the capacity to do almost anything that a computer can do. Courts have recognized that people have a significant privacy interest in their computers and cellphones.
It should be noted that police may always search these devices if you consent to the search and allow them to do so. You are under no obligation or legal requirement to consent to the search and even if you do initially consent to a search, you may always revoke that consent.
If you do not consent to searching electronic devices found in your home, the police need to obtain specific authorization from a Judge or a Justice of the Peace to search these devices, even if they have the authority to search the residence. Because of these electronic devices, searching a computer or a cellphone is not the same thing as searching a cupboard or filing cabinet, as such the police will need to obtain a search warrant to search those devices.
In some cases, the police may be allowed to seize a computer or cellphone that is found during the course of a search of a residence, and then apply for a further search warrant to search that device.