Cellphones now facilitate nearly all forms of business and personal activity. And there is no question that cellphones are used to facilitate criminal activity. It has been noted that cellphones are the “bread and butter” of the drug trade and the means by which drugs are marketed on the street. But if a phone is simply found near drugs, is that enough evidence to obtain a warrant to search the phone? A in a recent case, the B.C. Supreme Court has said no.
In R. v. O’Reilly, the trial judge stated as follows:
… however, all we have is the bare facts of the two phones being found in a vehicle in which drugs and weapons were found. If this is sufficient to issue a warrant, then I think it is fair to say that a warrant could properly issue anytime cellphones are located in the same vehicle as drugs packaged for distribution without any evidence tying the phones to the drugs other than the undoubted general proposition that cellphones are often used by drug dealers.
Ultimately, the trial judge held there was insufficient evidence to support the issuance of the warrant and that there had been a breach of the accused’s rights under s. 8 of the Charter.