Ontario's highest court has signalled that the right of police officers to look through someone's phone depends on whether
there's a password.

The Court of Appeal for Ontario says it's all right for police to have a cursory look through the phone upon arrest if it's not
password protected, but if it is, investigators should get a search warrant.

The court's ruling comes in the case of a man who appealed his robbery conviction, arguing that police breached his charter rights by looking through his phone after his arrest.

Kevin Fearon was arrested in July 2009, after a jewelry stall at a flea market in Toronto was robbed, and police found pictures of a gun and cash as well as a text message about jewelry on his phone. The Appeal Court denied his appeal, saying that police were allowed to look through Fearon's phone ``in a cursory fashion'' to see if there was evidence relevant to the crime, but after that they should have stopped to get a search warrant.

The court says if the phone had been password protected or otherwise locked to anyone other than its owner, ``it would not have been appropriate'' to look through the phone without a search warrant.

The Appeal Court judges referenced a decision in a murder case in which the judge did not allow evidence from a personal electronic device because it ``functioned as a mini-computer,'' which has a high expectation of privacy. The contents of that device were only extracted by a police officer using specialized equipment in that case, the Appeal Court judges noted.

``There was no suggestion in this case that this particular cell phone functioned as a 'mini-computer' nor that its contents were not 'immediately visible to the eye,' the court said in its ruling, released Wednesday. ``Rather, because the phone was not password protected, the photos and the text message were readily available to other users.''

The court, though, declined to create a specific new rule for all cellphone searches.

``It may be that some future case will produce a factual matrix that will lead the court to carve out a cellphone exception to the law,'' the ruling said. ``To put it in the modern vernacular: 'If it ain't broke, don't fix it.'''

(The Canadian Press)