Phone Searches Ok’d In NCAA Bribery Case

• Federal judge denies request to suppress evidence obtained from searches of phones in college basketball corruption case
• FBI agents had probable cause to search phones, and warrants weren’t overbroad, judge says

Law enforcement had probable cause to search the cell phones of two men accused of conspiring to commit wire fraud by bribing high school basketball recruits to play for NCAA Division I universities, a federal judge ruled.

The warrants that authorized the searches weren’t too broad just because law enforcement agents could have reviewed the phones’ entire contents for responsive data, District Judge Lewis A. Kaplan, of the U.S. District Court for the Southern District of New York, said June 1.

Former Adidas AG executive James Gatto, business consultant Merl Code, and sports agent Christian Dawkins are facing charges as part of a wide-ranging corruption probe of college athletics.

Code and Dawkins sought to suppress evidence obtained from searches of their phones on the ground that their Fourth Amendment rights had been violated.

The warrants describe the specific cell phones to be searched and the types of data that could be seized, Kaplan said. The fact that the warrants may have allowed law enforcement agents to come across personal data unrelated to the alleged crimes doesn’t amount to a violation of the Fourth Amendment, he said.

Sorting Data

Code and Dawkins each had two cell phones in their possession when arrested. Law enforcement agents used a program called Cellebrite to help them search for data on three of the four phones—a Blackberry recovered from Code wasn’t compatible with the program, and had to be reviewed manually.

An FBI agent submitted an affidavit stating that the search warrants permitted a broad review of the seized devices, but no “complete review” actually occurred.

Instead, agents used the Cellebrite program to divide the data on the phones by category. The agents then used search terms on the categories they believed were most likely to contain relevant information, he said. They also on occasion looked at data in these categories without using search terms, and they took a cursory look at other types of data.

It would have been difficult for the search warrants to specify which categories of data would likely have responsive evidence because it wasn’t clear in advance whether the government would be able sort through the devices in a mechanical way, Kaplan said.

“Indeed, not all of the phones were compatible with the Cellebrite program. And in the cases of those that were so compatible, the data categories were not perfectly separable,” he said.

“For example, certain messages were able to ‘include or ‘attach’ various forms of multimedia, such as images and videos,” he said. “Moreover, the Cellebrite program combined photographs and documents in the broad category of Images.’”

The case is United States v. Gatto, 2018 BL 194506, S.D.N.Y., No. 17-cr-0686 (LAK), 6/1/18.