01/21/2014 02:51 EST | Updated 03/23/2014 05:59 EDT

Older phones shouldn't get same protection from searches as smartphones: Crown

VANCOUVER - Recent changes in the law requiring police to obtain search warrants before examining the contents of smartphones shouldn't apply to older, less-advanced cellphones, a Crown lawyer told British Columbia's highest court Tuesday.

The B.C. Court of Appeal is examining whether it was legal for the RCMP to search two BlackBerry phones seized from a suspect following a 2006 kidnapping in Richmond, near Vancouver.

Investigators didn't get a warrant before sending the phones, which were protected by passwords, to a technical lab in Ottawa. Text messages recovered from the phones contributed to the conviction of Rajan Singh Mann, who is now appealing.

Several recent decisions, including one last year from the Supreme Court of Canada, have concluded police must treat today's smartphones — which can hold immense amounts of emails, photos and other documents — in the same way as a computer. That would mean investigators would require a search warrant before sifting through the contents of the cellphones.

But Crown counsel Gail Banning argued those previous decisions didn't create a blanket rule for all cellphones. In the kidnapping case, the phones were 2004- and 2005-model BlackBerry phones with limited storage capacity, no cameras, and only rudimentary Internet connectivity.

"Given their age and limitations, these devices didn't give rise to heightened privacy interests," Banning told a three-judge panel.

Banning argued such a phone should be treated like a briefcase, which police would be permitted to search if it's seized during an arrest, rather than a computer.

She noted the two BlackBerrys seized from Mann had storage capacities of 32 megabytes and 64 megabytes. Nearly a decade later, smartphone capacity is measured in gigabytes — a measurement that's roughly a thousand times greater than a megabyte.

Chief Justice Robert Bauman suggested it would be difficult to carve out a distinction to determine which phones require a warrant to search and which do not.

"I have a real difficulty defining a line by the storage capacity of the thing," said Bauman.

Banning said it should come down to how similar a phone's capabilities are to a computer.

"They simply did not contain vast amounts of personal information," said Banning.

"It's not simply a matter of numbers ... but it's also a distinction in functional capacity."

Banning said her arguments dealt with the specifics of the kidnapping case, and she stressed she wasn't calling for set of rules to guide future cases.

A day earlier, Mann's lawyer, Peter Wilson, argued even the older BlackBerrys seized from his client were essentially computers, capable of storing considerable amounts of personal data. Wilson said police had no right to search them without a warrant.

Mann was convicted two years ago for his role in a kidnapping that saw Gary Kwong taken by gunpoint and held for a $100,000 ransom. Kwong was released, unharmed, the next day and no ransom was paid.

Charges were originally laid against Mann, William Joshua Scott and Terry James Richardson. Scott pleaded guilty and Richardson died before the case was finished.

The Appeal Court's ruling will be the latest in a string of cases to deal with warrantless searches of cellphones and computers.

The Supreme Court of Canada ruled last year that police executing a search warrant at a home or other location must have special authorization to search the contents of computers or phones they come across.

The high court will hear another case in April dealing with phones that are found on suspects when they are arrested.