Police should be able to seize a suspect’s phone — sometimes

[Commentary] The Obama administration has petitioned the Supreme Court to hear a case that would decide whether law enforcement has the constitutional right to perform a warrantless search of someone’s cellphone at the time of arrest. In numerous cases, courts have found that, at such a time, the Constitution allows police to search certain objects in a suspect’s immediate possession. But the law governing cellphone searches ought to be updated to ensure that a suspect’s reasonable expectation of privacy is protected.

I side with the administration. It’s well established that police may search evidence accompanying a suspect that is relevant to the crime of arrest, such as a suspect’s car, address book or diary. The cellphone in the 2007 case — an older, flip-screen model — was with the suspect when he was arrested and was relevant, as police believed he had arranged drug transactions by phone. The type of police search that led to his address — looking through the phone’s call log — is no different from flipping through an address book or journal. Smartphones, however, are a different matter. The rapid advancement of smartphone and tablet technology demands that we address these issues before they become even more complex. The Fourth Amendment sets the standard for searches at the time of arrest: the reasonable expectation of privacy. Anything infringing that threshold requires a warrant and must be based on probable cause.

[Gary Shapiro is president and chief executive of the Consumer Electronics Association]