Left to Their Own Devices? A Conversation With Carrie Cohen

Phones and other electronic devices have been central to the investigation of Mayor Eric Adams and other members of his administration. They were the most dramatic (public) opening salvo last November when the FBI stopped the mayor on a public street in the afternoon, asked his detail to step aside and seized two of the mayor’s phones and an iPad. (Adams turned in his personal cellphone the following day.) Since then, nearly every reported investigative step has included taking phones from those suspected of wrongdoing.

As to the mayor himself, when his personal phone was handed over to law enforcement last year, investigators were told that he had just changed the password and “had forgotten the password he had just set, and thus was unable to provide the FBI with a password that would unlock the phone.” As of this month, it was still locked.

We wanted to learn more about why phones are so central to the building of public corruption cases, as well as the ins and outs of their handling by law enforcement, so we took the time to talk through the issue with Carrie Cohen. Cohen is a former federal prosecutor with the Southern District of New York (the same office that indicted Eric Adams last month) who prosecuted then-Assembly Speaker Sheldon Silver for bribery in 2015. She also served as chief of the Public Integrity Bureau of the New York State Attorney General’s Office, and is now global co-chair of the investigations and white collar defense practice group as well as co-chair of the state and local government enforcement team attorney with Morrison Foerster.

The following interview has been edited for length and clarity.

Why phones matter

Vital City: We’ve seen so many phone seizures and other device seizures. Why?

Carrie Cohen: Because to answer the who, what, when, where and why questions that prosecutors have to answer, there’s often no better evidence than what is on people’s phones. People conduct so much of their business and their everyday lives on their phones so the phones typically have loads of potential evidence.

VC: Why does law enforcement physically need them in hand?

CC: Potentially, you can get email content from companies if the email is on a corporate account or perhaps from Gmail or other email providers. But in order to get text messages, which increasingly is how people communicate, you cannot get those conversations except with a search warrant for the phone or perhaps an iCloud account. There’s just so much data on the phone: location data, calendar data, photos — potentially a trove of evidence.

How searches and seizures work

VC: Can you walk us through the process whereby the FBI actually seizes and gets to search a phone?

CC: Assuming there’s no consent to search the phone, law enforcement has to get a court-authorized search warrant to look at the phone, and to get that warrant law enforcement must show probable cause that there is evidence of a crime on that phone. 

But, the search warrant is not the first step in an investigation because a search warrant is invasive. One of the requirements for obtaining a search warrant is that law enforcement has exhausted other avenues for getting that evidence, meaning that law enforcement cannot get the evidence except through an invasive procedure such as the search of the phone.

A search warrant is a court-ordered warrant and the warrant details what law enforcement is allowed to search and why they believe that there’s evidence of a crime in that place or thing.  So, in a phone, they have to actually set forth with some particularity why they believe that there’s evidence of a crime in each particular app or item on the phone that they want to search. A search warrant to search a phone is not a blanket warrant to go roaming about all the different apps and other items that are in someone’s phone.

VC: The phones of the mayor and others have been seized in very public ways. Why does that happen? Does it mean that there was an attempt earlier to get cooperation that failed or that law enforcement suspected that there wouldn’t be cooperation? 

CC: It can happen for a number of reasons. It’s a little bit hard from the outside to read the tea leaves as to the reasons. Typically, if law enforcement is seeking a search warrant, there’s some element of surprise. You don’t want people deleting things, so you would not ask to search the phone or a house ahead of time. I don’t know if that’s why law enforcement obtained search warrants for the phones of the mayor, though. Again, we don’t know the motivation for why, and I don’t want your readers to assume, “Oh, they must have been concerned that the Mayor and other people around the Mayor were going to delete or had deleted in the past anything from their phone.” Sometimes, a search warrant can be the most expeditious way to ensure that law enforcement is able to obtain evidence in a quick and efficient way.

VC: Is there often a concern inside the U.S. Attorney’s office that they’d rather not have a high-profile public seizure like this of the phone of someone who’s in the public eye? In other words, is this likely to be a last resort or a later resort?

CC: It’s a later resort. I wouldn’t say it’s a last resort. Obviously, if a search warrant is executed  in public, the investigation is no longer covert. Oftentimes, that is a reason why law enforcement does not execute search warrants and tries to get certain information with consent or through other means, because they do not want their investigation to become overt. But because that was not a concern here, there was no danger that doing a search warrant would out the investigation.

Who sees what and when

VC: Now, the documents that are submitted to the judge to get the warrant, and the fruits of the search, will the public ever see those, and if so, in what context?

CC: The search warrant comprises of the warrant itself, as well as an attachment to the warrant about what items law enforcement is allowed to look at on the phone, and then there is a detailed affidavit from a law enforcement officer detailing all the reasons why the law enforcement cannot get this evidence another way, why they believe there’s evidence of a crime in a certain app or in photos. The affidavit and the warrant are sealed until the warrant is executed and a copy is given to the person who owns the property that’s subject to the seizure at the time of the seizure. 

So here, if you’re using Mayor Adams’ phone as our example, a copy of the warrant would’ve been handed to Mayor Adams at the time of the seizure so that he could be sure that law enforcement had proper legal process to do what they’re doing.

In terms of when the public gets to see the warrant and the affidavit from law enforcement that supported it, if and when there is a trial, sometimes the affidavit can be an exhibit at trial, it can be used at trial to impeach the officer who swore to it to the extent there are misrepresentations in it. 

VC: When does the person get their phone back? if my phone is seized, can I still use my number or do I need to get a whole new number?

CC: That’s a great question. When your phone is seized, the government keeps the phone because they may need to run diagnostics on it later. Typically, what they do is they don’t actually sit and search the phone on the phone. Using computer technology, they upload the phone contents onto a system that allows them to only search what they need to search and what they’re allowed to search, more importantly. But they do then keep the phone. They don’t return it, and you do have to get a new phone with a new number.

VC: Does a person get any financial credit, or they have to buy a new phone all on their own?

CC: You have to do it all on your own, because the government has seized it pursuant to a legitimate court-authorized warrant. Materials that are seized during search warrants do not get returned to the owner until the very end of the criminal case.

Deleting apps and “forgetting” passwords

VC: Let’s assume that suspicion is swirling around a particular encrypted app like Signal for a second. If I deleted Signal from my phone anticipating that it might be seized, and this actually happened with an Adams aide, am I potentially subject to a criminal charge?

CC: There is a potential obstruction of justice. What the government would have to show is that you knew there was an investigation, you were under notice that there was perhaps a subpoena or other request by the government for that phone, and that you then intentionally deleted things on the phone to frustrate the government’s investigation. We’ve seen countless obstruction of justice charges brought by the government based on phone deletions in other contexts. I think even in the prosecution of Adams and others in his administration, we recently saw an indictment for obstruction of justice related to a phone.

VC: When Adams had his phone seized, he said he had just changed the password and forgot the new password. Talk a little bit about that. It strikes a lot of people as implausible. If it is a lie, are there consequences for that lie? 

CC: There is, I think, a great debate in legal circles about whether Mayor Adams’ statement that he changed the password and then forgot it will be able to be used against him in any criminal trial as the government will want to do as proof of consciousness of guilt. A person, of course, has a Fifth Amendment right not to consent to a search of their phone. One issue is whether he said it, as has been reported in the press, or whether it was said by counsel, which matters. Words of counsel typically cannot be used against you.  But this alleged statement will be the subject of, I suspect, a lot of motion practice if and when there is a trial.

Related to facial recognition to unlock the phone, the government would have to get a search warrant forcing a person to look into the phone to unlock the phone. Because a person has a Fifth Amendment right not to be compelled to produce evidence that could incriminate himself or herself, which is called the Act of Production privilege, a person cannot be compelled to put a thumb on the old phones or put a face up to a phone, but law enforcement can obtain a search warrant to require someone to do either act. 

VC: So is the fact that they’re not doing that with him, does it mean he probably didn’t have Face ID set up, that it was just a passcode?

CC: Perhaps. Or the other way law enforcement can get into the phone is that they get a search warrant to search the phone, and then law enforcement has ways to basically hack into the phone if they have the search warrant, and they don’t need Face ID.

VC: Does the government still have the capability to unlock phones like Adams’?

CC: Again, it’s hard to tell. Law enforcement, of course, does not publicize its own ability or lack thereof to unlock phones. 

This new world we’re in

VC: Before basically all of life happened on a smartphone, public officials would have little sidebar conversations in hallways, and lots and lots of phone calls, but there was no virtual paper trail of them. Are we now in a world in which all of those types of conversations now possibly have virtual paper trails that could be used later as evidence of crimes? Or are those chat app conversations in a third category? How does that change the way that investigators do their work?

CC: I think in some ways, the availability of conversations in real-time on people’s phones has assisted law enforcement because the conversations can show who said what when and often where. What you can’t explain without a live person is the context of that conversation or what someone meant when they said something. For that, you still need live witnesses to explain things, especially if you’re thinking forward to a trial, which every prosecutor who indicts a case should be thinking, can I prove it at trial and how?

You typically cannot and should not be going to trial if all you have are text messages and emails, and you do not have a live person who was party to some of those conversations to explain them. Because there’s always another way to read text messages, there’s another way to read emails. We’ve probably all experienced sending an email where someone took it a very different way than how we meant it. And so without a live person explaining conversations, you are not necessarily going to be able to prove your case.

So in some ways, the fact that people are talking on their phones through text is helpful to the government. But for what I think of as an old-school way of building a case where you need people to cooperate with you, you need people to tell the truth, explain what happened, and you also need hard documents.

VC: Are the hurdles that must be jumped over to get access to these kinds of things on a person’s phone similar to, lower than, higher than wiretap-style hurdles? And with respect to wiretaps, could that be happening in this case too and we just wouldn’t know about it?

CC: Wiretaps are only permitted for certain enumerated crimes under federal and state law, so they’re not available for all types of crimes. They are available in the public corruption realm. If we think back to the prosecution of Dean Skelos by the Southern District of New York, the jury heard a number of wiretapped conversations.

Wiretaps, listening to someone’s voice in real time being played in a courtroom, is much more powerful evidence for the government than the reading of text messages. You can hear tone, you can hear indignation. It’s much more powerful evidence. But, it is extremely hard to get. It is very time-intensive for the government to run a wiretap room. You need federal agents listening to conversations 24/7 and you have to reapply to the court every 10 days to explain why you need to continue the wire, that the wire is being fruitful. And, you can’t listen to every conversation and must minimize so as to listen to conversations only on certain phone numbers that have been proven to a judge to be linked potentially to people engaged in criminal activity. Plus, agents cannot listen to privileged conversations, such as between people and their attorneys and between spouses. So it is a very resource-intensive proposition for the government to do a wiretap versus a search warrant, and the standards are different.