R. v. Hiscoe

R. v. Hiscoe

On these facts the court held that (1) seizure of the unlocked smartphone found at the arrest was lawful and (2) a cursory on-scene review of recent text messages and the transcription of those messages later the same evening were within the lawful scope of a search incident to arrest because they were closely connected to and necessary to preserve evidence. However (3) a complete forensic download (data dump) performed nearly a month later exceeded the scope of search incidental to arrest, violated s.8, and the data obtained from that download was excluded under s.24(2) given the heightened privacy interests, temporal gap and breadth of the search.

Citation
2011 NSPC 84
Parties
Crown: Her Majesty the Queen; Accused: Jamie Scott Hiscoe
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
17 November 2011
Procedural Posture
Criminal (controlled Drugs and Substances Act S.5(2) Possession for Purpose of Trafficking) / Pre Trial Charter Application to Exclude Evidence (s.8 and S.24(2))
Outcome
Application granted in part: cursory on-scene examination and same-evening transcription admitted; full forensic download/data dump excluded
Legal Topics
Search Incident to Arrest, Cell Phone/smartphone Search, Warrantless Search, Charter S.8, Charter S.24(2), Forensic Data Download
Source Language
English
Constitutional Law Criminal Law Search and Seizure Evidence Law Search Incident to Arrest Cell Phone/smartphone Search Warrantless Search Charter S.8 +2 more

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Parties

Her Majesty the Queen

Crown

Jamie Scott Hiscoe

Accused

Procedural Posture

Criminal (controlled Drugs and Substances Act S.5(2) Possession for Purpose of Trafficking) / Pre Trial Charter Application to Exclude Evidence (s.8 and S.24(2))

Legal Issues

  1. 1 Scope of police authority to seize and search a cell/smart phone incident to arrest
  2. 2 Lawfulness of seizure of the accused's phone
  3. 3 Whether (a) cursory on-scene exam, (b) subsequent transcription same evening, and (c) full forensic download (data dump) were authorized incident to arrest

Ratio Decidendi

On these facts the court held that (1) seizure of the unlocked smartphone found at the arrest was lawful and (2) a cursory on-scene review of recent text messages and the transcription of those messages later the same evening were within the lawful scope of a search incident to arrest because they were closely connected to and necessary to preserve evidence. However (3) a complete forensic download (data dump) performed nearly a month later exceeded the scope of search incidental to arrest, violated s.8, and the data obtained from that download was excluded under s.24(2) given the heightened privacy interests, temporal gap and breadth of the search.

Court Disposition

Application granted in part: cursory on-scene examination and same-evening transcription admitted; full forensic download/data dump excluded

Orders

  • Exclude full content download (data dump) of the accused's cellphone from evidence pursuant to s.24(2) of the Charter
  • Admit evidence consisting of the text messages observed at the arrest scene and transcribed later that evening by officers Foley and Campbell