Search of cellphone incident to arrest proper - password on phone might have changed decision

R. v. Fearon, 2013 ONCA 106 holds, on its facts, that a search of a cellphone was proper as an incident of arrest.  Note that the decision might have been different if there was a password on the phone:

[57]       This case is not significantly different from Manley.  I cannot conclude, in the circumstances of this case, that the original examination of the contents of the cell phone fell outside the ambit of the common law doctrine of search incident to arrest.  Apparently, the cell phone was turned “on” and it was not password protected or otherwise “locked” to users other than the appellant.  The police officers had a reasonable belief that they might find photographs and text messages relevant to the robbery.  The initial search at the time of the arrest involved a cursory look through the contents of the cell phone to ascertain if it contained such evidence. 

[58]       The subsequent examinations of the contents of the cell phone at the police station are more difficult to analyze.  Arguably, those examinations went beyond the limits for a search incident to arrest.  See Caslake, at para. 25.  In my view, the proper course for the police was to stop the examination of the contents of the cell phone when they took the appellant to the police station and then proceed to obtain a search warrant.  Detective Abdel-Malik agreed that there was no urgency to search through the cell phone.  There is no evidence that it would have been impracticable to appear before a justice to obtain a search warrant in the usual manner.  If it was impracticable for an officer to appear before a justice to obtain a search warrant, the police could have proceeded to obtain a telewarrant under s. 487.1 of the Criminal Code.  That said, the trial judge concluded that the examination of the contents of the cell phone at the police station were connected to the search at the scene of the arrest.  Although some time and distance had passed from the arrest, the trial judge found that the police were still looking for evidence of the location of the jewellery and the gun as well as for contacts among the parties to the offences.  These were findings of fact made by the trial judge.  While I would have come to a different conclusion, I cannot say that these factual findings reflect palpable and overriding error.

[59]       There is also another observation to make about the search of the cell phone at the police station.  No additional evidence appears to have been discovered by the police and none was tendered in evidence from that search.  Even if the search at the police station went beyond the limits of Caslake s. 24(2) is not engaged.