Can Police Search Your Phone During Traffic Stops?

It’s a beautiful day. You’re driving along the highway, speeding, unfortunately on the 401 and the police stop you. So, they ask you for your license and registration, and then they say, “I want to search your phone.” Great question. Can the police during a traffic stop ask you to search your phone, and can they demand that they search your phone? Well, let’s break it down, because this is a great question that I see on many online forums and clients have asked me this. I’ve seen many situations like this over the years.

So, let’s break it right down section 8 of the Canadian Charter of Rights and Freedoms. Everyone has a right to be secure against unreasonable search and seizure. So, the general rule here is, here is, no the police have absolutely no right, per se, to demand that you give them your cell phone, and you can refuse in that situation, there’s no question. The police need reasonable probable grounds to get that cell phone and they need to get a warrant, typically. So, there’s many exceptions to this, and we have privacy rights, and this is a very important right in Canada. So, what would be the exceptions? Well, first of all, let’s say you’re arrested, there’s exceptions there. So, if the police have reasonable probable grounds that there might be evidence of a crime on your cell phone, then they could get a warrant for that potentially. So, they’d have to go before a judge or the Justice of Peace, get a warrant and then search the phone.

Well, do you have to give them your password? Well, you know, you don’t have to give your password in that situation either. So, but they have, they have tools. They have Cellebrite tools, which is a software tool where they can get in your phone, unfortunately, in that situation.

What other exceptions might there be? Well, there’s something called search incident to arrest, where the police are allowed to secure the safety and search you, your person, etc. So that doesn’t necessarily extend to a cell phone, right? It’s hard to envision a situation where that’s securing your safety or the officer’s safety of searching the cell phone. The other exception, which is probably a very narrow exception as well, for cell phones, if the police have a situation where there’s going to be imminent harm or death, let me talk about a situation. Let’s say they overhear you texting someone wild, hypothetical, go ahead and kill that person. Well, they’re allowed to search the phone immediately, because that’s what’s called an emergency, exigent, E X, I G, E N T situation. So those are the exceptions for privacy in a situation, and certainly, the police should never demand that you hand them their phone during a routine traffic stop. I would refuse in that situation.

What if they force you to it? Well, you don’t want to start arguing with them too much. I mean, you don’t want to get them into a violent situation. You can complain later this situation, but every situation is fluid and different.

The other situation where the police could look at your phone is you don’t have to consent. They get asked you, oh, do you mind if I look at your phone? This goes on all the time. The police are on a fishing expedition. They might have some minor suspicion that you’re a criminal or in criminal activity. Just say no. Be polite. Be firm. Say no. In that situation, ask if you’re under arrest, and they say, “Well, no, I don’t have to give you the phone.” But again, you don’t want to get into a violent situation. I’ve seen the odd situation where the police get uppity in this situation, but they know that they’re not allowed to ask this of you. And we have privacy rights, and it’s very well protected. So here you have it. Then under the under the charter, you have rights for a traffic stop, you can refuse to provide your phone the police, but once you’re under arrest, now it becomes a different situation.

They can seize your cell phone. They can’t necessarily search it at that point, unless they have a warrant, and they may get that if they feel that there’s grounds for that particular warrant. So it’s an interesting topic. I’m glad I covered this today, because again, many people are asking me this question over the years.