FBI v Apple
A research resource developed by Professor Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics, Georgia State University College of Law
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Cases: US v Ravelo (United States District Court for the District of New Jersey) (pending)
On the evening of December 22, 2014 federal agents arrived at the home of Keila Ravelo, until recently a partner at the prestigious New York law firm Wilkie Farr & Gallagher, and arrested her on charges of wire fraud. (A successful litigator, she helped negotiate for her client, MasterCard, what was described as the largest settlement of an antitrust class action in the world -- for $5.7 billion.) At some point after she was arrested, the agents seized her personal iPhone. The same evening one of Ravelo's attorneys emailed Assistant U.S. Attorney Andrew Kogan requesting "the immediate return" of the cell phone as having been seized illegally and also putting the government on notice that the cell phone may contain attorney-client emails and text messages. Defendant's Supplemental Letter in Reply to Government's Opposition to Motion to Suppress, Ex. A.
On December 24, 2014 a federal magistrate in New Jersey signed “a warrant authorizing law enforcement to search the Phone.” US Atty Letter in Opposition to Motion to Suppress Both the warrant application and the warrant itself were filed under seal. Neither the warrant nor its return were served on Ravelo; and for over 16 months, up until at least May 23, 2016, the government refused to show the warrant to Ravelo or her lawyers. See US Atty Letter in Opposition to Motion to Suppress, May 23, 2016. The warrant and supporting affidavit were subsequently provided to Ravelo's attorneys and finally became part of the official court record when filed as attachments to the Defendant's letter brief in support of her motion to suppress filed October 17, 2016.
Fourteen months later, on February 19, 2016, a government prosecutor who identified himself as the “filter” attorney produced to Ravelo’s attorneys a hard drive containing “the user-generated content retrieved from the cellular phone that was the subject of a search warrant in this case,” including “emails, text messages, contact list, and user-generated photographs.” According to Defendant's Letter in Support of Motion to Suppress over 90,000 separate items had been downloaded from the iPhone onto this hard drive. The “filter attorney” asked defense counsel to create a “privilege log” for all items for which privilege would be claimed. After receiving this privilege log, the “filter attorney” would “then disclose to the prosecution team those items which are not identified in the privilege log”.
On April 29, 2016 Ravelo’s lawyers filed a motion to suppress “any and all evidence obtained as a result of the seizure of her cellular telephone,” which is still pending. The motion first argues that the December 22 seizure could not be justified as "incident to arrest" because (1) the phone was not seized from her or from an area within her immediate control and (2) the seizure was not "contemporaneous" with her arrest but instead took place at least 15 minutes after she was handcuffed. The motion then addresses the December 24 search warrant: "[T]he government claims to have secured a warrant prior to searching the contents of Ms. Ravelo's cell phone, but it has expressly refused to provide defense counsel with a copy of that warrant or of the affidavit which supported it, thus raising serious doubts about the constitutionality of the ensuing search as well. ... At the very least, that warrant and the affidavit upon which it was based, should be provided to the defense so that it may fully explore the facts regarding this troubling search and seizure."
The government responded asking the court to deny the motion in order to give it time to review the entire contents of the iPhone (excluding privileged material) to determine what items it might want to use at trial and continued its refusal to provide defense counsel with the warrant it claimed authorized this search. The response did not address the defendant's claims that seizure and subsequent search of the iPhone violated the Fourth Amendment.
U.S. District Judge Kevin McNulty held a hearing on the motion to suppress on June 27, 2016 and ordered supplemental briefs, which were filed as letters on July 12, 2016.
Judge McNulty held a further evidentiary hearing on September 19, 2016 on defendant's motions to suppress evidence from the iPhone and to return the phone . After the hearing Judge McNulty entered this order on the court docket:
"Ordered transcript within 10 days and submission due within 21 days. Ordered status conference adjourned to a date after the submissions are filed. Decision Reserved."
Judge Kevin McNulty has set a
Status Conference and Hearing for October 27, 2016 at 3:00 pm:
Courtroom 4, U.S. Post Office Building, 2 Federal Square, Newark, NJ 07102
Court Documents: U.S. v Ravelo (D.N.J. 15-CR-576)
Docket Sheet (as of July 12, 2016)
Application and Affidavit for Search Warrant for iPhone, Dec. 24, 2014
Search Warrant for iPhone, Dec. 24, 2014
Letter from “Filter” Assistant United States Attorney, Feb. 19, 2016
Defendant's Letter in Support of Motion to Suppress, Apr. 29, 2016
US Atty Letter in Opposition to Motion to Suppress, May 23, 2016
Defendant's Letter in Reply to Government's Opposition to Motion to Suppress, June 14, 2016
Amended Protective Order, June 27, 2016
Letter to Judge Kevin McNulty forwarding Clark D. Cunningham, Apple and the American Revolution: Remembering Why We Have the Fourth Amendment, 126 Yale L.J. F. (forthcoming 2016) (discussing US v Ravelo at text accompanying footnotes 46-51), July 8, 2016
US Atty Supplemental Letter in Opposition to Motion to Suppress, July 12, 2016
“[A]ssuming arguendo that the Court granted Keila Ravelo’s motion to suppress the contents of her cellular telephone (“the Phone”) and a motion to return the Phone, the government would still be able to retain a copy of the Phone to be used lawfully, among other reasons, for impeachment purposes, at a sentencing hearing, filing an appeal, and/or in opposition to any habeas petition."
[W]ere the Court to suppress evidence obtained from the Phone, the government could not use any suppressed evidence from the Phone in its case-in-chief. However, the government could: (1) introduce such evidence to impeach the defendant’s testimony and/or certain testimony of other witnesses; (2) use any relevant suppressed evidence from the Phone for sentencing purposes; (3) use relevant suppressed evidence from the Phone in opposition to any habeas petition that the defendant might file post-conviction; (4) retain copies of the contents of the Phone, as contemplated by the 1989 Amendments to Fed. R. Crim. P. 41, even if the court granted a motion to return the Phone. Additionally, the government would need to review the contents of the Phone to determine whether an appeal of the court’s order to suppress would be appropriate."
"In this case, if the court were to grant Ms. Ravelo’s motion to suppress evidence obtained from the Phone, Ms. Ravelo would likely file a subsequent motion under Fed. R. Crim. P. 41(g) for the return of the Phone. Were the Court to grant the defendant’s Rule 41 motion, the government would likely retain copies of the contents of the Phone."
Defendant's Supplemental Letter in Reply to Government's Opposition to Motion to Suppress, July 12, 2016 (also requesting return of iPhone under Fed. R. Crim. P. 41(g)).
Defendant's Supplemental Letter in Support of Motion to Suppress, Oct 17, 2016
US Atty Supplemental Letter in Opposition to Motion to Suppress, Oct. 17, 2016
Defendant's Supplemental Letter in Support of Motion to Suppress, Oct. 21, 2016
US Atty Supplemental Letter in Opposition to Motion to Suppress, Oct. 21, 2016
Background information from:
Abbott Koloff & Jeff Green, Feds: Attorney from Englewood Cliffs, husband stole millions from two NYC law firms, The Record, Dec. 22, 2014
Paul Barrett, Inside a $5.7 Billion Antitrust Trainwreck, Bloomberg Businessweek, Nov. 11, 2015