The Instigator
Jathushan
Con (against)
Tied
0 Points
The Contender
Beagle_hugs
Pro (for)
Tied
0 Points

Should the police be allowed to search through your device when you are arrested without a warrent?

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Voting Style: Open Point System: 7 Point
Started: 12/22/2014 Category: People
Updated: 2 years ago Status: Post Voting Period
Viewed: 460 times Debate No: 67465
Debate Rounds (4)
Comments (1)
Votes (0)

 

Jathushan

Con

Hey, I am interested in this topic as I heard about something similar to this happening in Ontario soon and wanted to see if there is just or legitimate reasoning to this. This first round will be accepting, and simply giving a brief statement on your position and then we begin the debate. We will proceed in the following order:
1) Acceptance
2) Argument #1
3) Rebuttal
4) Any more evidence or arguments before the voting period.

I hope to make this a topic of interest to many people because some people are ignorant of what this brings about and I wish to show people about it.
Beagle_hugs

Pro

I'll accept the challenge, with the understanding that my position is that there are some circumstances when the police should be allowed to search through your mobile device when you are arrested without a warrant. If you wanted me to argue against the 2014 SCOTUS position, you would need to state your resolution less ambiguously.
Debate Round No. 1
Jathushan

Con

Jathushan forfeited this round.
Beagle_hugs

Pro

As explained in Riley v. California (http://www.supremecourt.gov...), once an arrest has been made, the question is whether a mobile phone can be searched without a warrant as a search incident to an arrest. The general position is that the phone cannot be searched incident to an arrest because, once the phone is secured, the police may make their case to a judge for a search of the phone. If you are interested, in the U.S. this turns in part on the analysis that the information to be seized may even be on the cloud and not actually present at the arrest and that the information to be seized is highly unlikely to be confined to just information related to the offense for which the person has been arrested.

However, according to the opinion, there can be exceptions. A limited search of the phone in order to disable encrypting or erasure is permissible, and in circumstances where data loss is reasonably expected, the police may execute an immediate search incident to an arrest. Additionally, there may be circumstances where immediate access to data through the mobile phone is necessary to combat an ongoing crime or to mitigate harm. These and other situations fall under the "exigent circumstances," which require judicial review of the search after the fact.

The Court was concerned with granting too broad an access to mobile phone searches--in effect, the Court wanted to avoid a situation where officers could always justify a search. As data encryption and erasure capabilities become more prevalent, and as mobile phones are used to coordinate criminal activities, this is an area of law that will be further explored by the circuits, if not the Court. Certainly, officers will try to use "exigent circumstances" to justify searches, but that is of course a higher standard than a "search incident to arrest," and will result in application of the exclusionary rule when the courts do not find exigent circumstances.

In Canada, you have a weak exclusionary rule. One might jump to the conclusion that this makes a U.S. approach more problematic, but in reality in Canada it does not matter whether there is no "exigent circumstances" justification for a warrantless search, because your your police can simply execute the search regardless of warrant and your courts will consider exigency in determining whether it is necessary to exclude evidence in order to prevent abuses. Thus, whether Canada adopts an explicit "no" or an explicit "exigent circumstances" rule is probably irrelevant to civil rights outcomes in Canada.

As a matter of civil rights, the answer to your question is "yes, but only in certain very serious emergencies such as preventing the intentional destruction of evidence or mitigating ongoing or imminent serious harms."
Debate Round No. 2
Jathushan

Con

Jathushan forfeited this round.
Beagle_hugs

Pro

Beagle_hugs forfeited this round.
Debate Round No. 3
Jathushan

Con

Jathushan forfeited this round.
Beagle_hugs

Pro

By way of concluding this nonexistent debate, I have read the Canadian Supreme Court decision to determine where Canadian law may differ from U.S. law, and whether the difference is significant.

In review, under U.S. law a warrantless search of a mobile phone is not justifiable under the "search incident to arrest" theory; but rather only in "exigent circumstances." An "exigent circumstance" must be shown to the court after the fact, and includes circumstances indicating a necessity to preserve evidence or prevent/mitigate an imminent or ongoing harm, among other serious emergencies.

The Canadian approach is that warrantless searches of a mobile phone is justifiable under the "search incident to arrest" theory, but only as modified by R. v. Fearon. There is a four-factor test: (1) The search must be lawful; (2) the search must be promptly upon arrest and only to prevent or mitigate harm, preserve evidence, and capture evidence in a time-sensitive investigation; (3) the search must be very limited; and (4) detailed notes must be preserved describing the search. A serious breach of those factors that shows abusiveness will result in the exclusion of evidence.

The dissent would have taken an exigent circumstances approach, and reads much like (almost exactly like) the 9-0 U.S. Supreme Court majority (we are better at this stuff than you Canucks). What I would point out is that the main difference seems to be the explicit allowance for use of the search to "discover evidence" in certain circumstances rather than only to preserve evidence or mitigate harm. I think time will tell (both decisions are from 2014) the extent of the difference between the two approaches, but they are both limiting approaches. The main danger in the Canadian approach will be if the "discovery of evidence" allowance is interpreted broadly instead of to apply only in circumstances where an investigation would be hampered with real harm resulting.

In any case, I believe that there are exigent circumstances when a warrantless search of a mobile device should be allowed. I can see the trepidation at the Canadian approach, but the Canadian approach is not a carte blanc to search mobile phones incident to arrests.
Debate Round No. 4
1 comment has been posted on this debate.
Posted by TheJuniorVarsityNovice 2 years ago
TheJuniorVarsityNovice
This is the big issue recently, you're gona have a hard time find someone to stand pro on this one...
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