An AUSA’s request of defense counsel for defendant’s cell phone’s passcode was not a request for consent. It was merely to avoid the delay of decryption. United States v. Mangini, 2021 U.S. Dist. LEXIS 66764 (S.D. N.Y. Apr. 6, 2021):
Under the totality of circumstances, the Court finds that defense counsel did not consent to a search of the phone, nor did he reasonably understand that providing the phone passcode would constitute consent to a search of the phone. First, neither Mangini nor his counsel provided any written consent to search the phone, nor do the email communications between counsel reveal any discussion of consent. Second, it is significant that a search warrant for the phone had been signed on April 6. It was therefore quite reasonable for defense counsel to understand the AUSA’s request for the passcode to be merely a means of avoiding delay by overcoming the logistical hurdle of decryption. And in providing the passcode, defense counsel reasonably understood himself to be merely addressing that logistical hurdle rather than consenting to a search of the phone. Finally, the Court is not persuaded that any other circumstances — such as the context of the parties’ discussions, defense counsel’s request regarding personal information on the phone, or the manner in which the phone’s information was later produced — support a finding of consent here in light of all the circumstances.