Robert Morgan loses fight to get iPhone back from prosecutors

After two months of arguing with prosecutors over the Rochester developer's right to have his smartphone returned to him, a federal judge last month rejected Morgan's request.

Morgan, the real estate developer accused in a 114-count federal indictment of bank fraud, wire fraud, insurance fraud and money laundering conspiracy, sought in early January to get his phone back. He argued through his attorneys that his interest in the phone for personal information and privacy outweighs that of the government, which he says is not entitled to hold onto it indefinitely.

The phone had been seized as part of an FBI raid on Morgan's offices in May 2018, and has been in the government's possession since then. However, investigators have been unable to access it because it's protected by a six-digit passcode that can only be tested two or three times every hour.

Agents asked Morgan for his code at the time of the raid, but he refused, so the government has been using a "brute force" device called GrayKey to try to break the code by testing random numbers. As of early January – more than 18 months after the phone was seized – 920,526 possible passcodes out of 1 million still remained to be tested. Morgan was indicted in May 2019.

Morgan argued that the government's claim to the phone for evidence is inconsistent with the criminal procedures governing such evidence. He has suggested it could take the government as long as 37 years to break the code.

But U.S. District Court Judge Elizabeth A. Wolford rejected Morgan's argument. She dismissed the developer's offer for his attorney to "preserve all material" on the phone.  And she noted that Morgan got a new phone the day after the raid, so he doesn't lack a device.

Finally, she asserted that the government's stated need for the phone as potential evidence in the criminal trial outweighs Morgan's right to have it returned, with a trial not slated to begin until early next year.

"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 judge ruled. "There is still plenty of time for the government to access the iPhone's contents."