Defendant’s Request for Return of iPhone Denied Where Government’s Evidentiary Interest In Phone Outweighed Defendant’s Interest In Its Return
- ILS Team
In U.S. v. Morgan, No. 1:18-CR-00108 EAW (W.D. N.Y. March 6, 2020), a New York District Judge denied Defendant’s Motion for Return of Property under Federal Rule of Criminal Procedure 41(g) on the grounds that, at least at this stage of the proceedings, the Government’s evidentiary interest in the subject iPhone outweighs Defendant’s interest in its return.
This case involves a Superseding indictment alleging conspiracy to commit wire fraud and bank fraud. A search warrant was issued for Morgan Management, LLC, which included search and seizure of “multiple servers, computers, or storage media…including but not limited to…devices…associated with…[Defendant].” Subsequent to the search warrant, a 62-count indictment was returned against other defendants, but Defendant Robert Morgan was not initially named in the indictment.
Through the search warrant, the government seized Defendant’s iPhone and began trying to crack Defendant’s passcode in May of 2018. Using a device called “Graykey”, which uses “brute force” to access the iPhone, the program enters potential passcodes until it is revealed. A six-digit passcode yields 1,000,000 potential combinations, but the iPhone’s hardware only allows three passcode attempts per hour. Thus, when Defendant was charged a year later, the Graykey program still had 960,526 passcodes to try. Consequently, Defendant filed a Motion For Return of Property under Federal Rule of Criminal Procedure 41(g).
In ruling on the Motion, the Judge stated that “Rule 41(g) allows ‘[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property [to] move for the property’s return…. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.’” But she also noted that “Defendant does not argue that the government’s continued possession of the iPhone and its efforts to access it constitutes an untimely seizure. Instead, Defendant argues that his interest in his iPhone and the information contained therein exceeds the government’s interest in the device, and thus, the Court should order its return.”
With that in mind, after a review of the history of Rule 41(g), the Judge stated: “Defendant argues that at its current pace, it may take the government 37 years to successfully unlock the iPhone. The Court agrees that anywhere close to 37 years is an unreasonable time to retain the iPhone. This does not mean, though, that the government should be compelled to return it now. The government suggests that if it is successful, the contents of the iPhone could still be used at trial, regardless of when the contents are eventually accessed. At this stage of the proceedings—with a trial not scheduled to commence until next year…the Court agrees that there is still plenty of time for the government to access the iPhone’s contents. In the context of the current motion, the Court will not resolve whether that may cease to be the case as the trial date approaches. Indeed, the question of specifically how long the government can retain the device is not before this Court. There may very well come a point where the government’s retention of the iPhone is unreasonable—and that may be a time when the government continues to maintain that it needs the iPhone as evidence—but that date has not yet occurred.” As a result, the Judge denied Defendant’s motion.