Can the Police Search Your Cell Phone if you are Arrested?

In today’s society almost everyone has a cell phone and we all store private information on our phones.  But what if you were arrested and the police wanted to look through your cell phone for incriminating evidence? For example, can a police officer take your phone during a DUI arrest and later in the shift go through the phone looking for incriminating evidence such as photos of you drinking earlier in the evening.  The California Supreme Court in People v. Diaz upheld the delayed search of a cell phone seized at the time of an individual’s arrest. The Court found that the search of text messages and other information found on a phone can be searched pursuant to the search incident to a lawful arrest exception to the Fourth Amendment’s search warrant clause. Citing United States Supreme Court precedent, the Diaz court distinguished between property that is immediately associated with the arrestee’s person which can be searched in a delayed search and other property seized in a search pursuant to a legal arrest which must be searched immediately. Typically, the police will seize items of personal property from a suspect and justify a search based on an inventory of the items, Finding that a cell phone is immediately associated with a person’s body the court upheld the search (presumably it is because a cell phone is often found in a person’s pocket).  With that being said, may law enforcement officers conduct a warrantless search of a cell phone that the arrestee was not carrying on his person, but which was in his possession when he was arrested; e.g., next to him on the seat of his car?  Because this was not an issue in Diaz, the court did not address it.  This issue remains undecided and the courts should take the issue up on future opinions.