Page 35 - Jan Feb TPA Journal

was a frivolous formality. declaration, Gallegos orally gave the passcode to
Gallegos agreed to the requested searches of his the agents and watched as an agent added the
vehicle and gray Samsung, and in each case his passcode to the consent form, to which he made no
consent was registered both orally and in writing. The comment. In any event, the agents were given the
written document reflecting Gallegos’s consent, passcode, the consent form was modified to include
which was signed by Gallegos, was a standard the iPhone, and the phone was seized, without
consent form. The consent authorized “a complete objection from Gallegos, for a later inspection.
search of [Gallegos’s] Phone & car.” In addition to a Meanwhile, back in the kitchen, the extraction of
“complete search,” the consent further authorized a the gray Samsung was nearing completion. The
seizure: specifically, it permitted agents to “take extraction had lasted more than forty-five minutes,
any letters, papers, materials, or other property which and a visual display on the Cellebrite’s screen had
they may desire to examine.” Finally, the signed tracked the progress of the download, which Gallegos
consent form put Gallegos on notice that a search had observed in part. The download was a “logical
or seizure might produce evidence that could be used extraction,” which means that the Cellebrite copied
against him in a later criminal proceeding. only data that would be visible during a manual
At this point, the investigation began to occur search of the phone. By contrast, a
simultaneously on two fronts. Agent Newman and “physical”extraction would have downloaded deleted
others remained in Aleida’s house and started to data as well.
search the gray Samsung. Other agents, having When the agents finished their logical extraction
received Gallegos’s consent for a thorough search of of the gray Samsung, they asked Gallegos to
the vehicle, left the house and returned to the vehicle accompany them to the Homeland Security
to begin that search. Investigations building in Houston for an interview
We turn first to the search of the gray Samsung, about his mother’s smuggling activities. At this point,
which occurred in Aleida’s kitchen. One of the agents the agents were in possession of both phones: the
hooked the phone up to an electronic extracting gray Samsung and the white iPhone. Once at the
device called a “Cellebrite” to extract (i.e., copy) its office, the iPhone, which had not yet been examined,
data. At some point, Gallegos observed the Cellebrite was subjected to a logical extraction, but not in
extraction taking place. In fact, he sat at the table Gallegos’s presence. After the interview was over, the
where the extraction was taking place and could see agents returned both the Samsung and the iPhone to
clearly the agents connecting wires from the Gallegos—meaning that the phones were returned on
Cellebrite to the gray Samsung. It is clear that, at that the same day that they were consensually seized.
point, he knew more than a “look through” was At this point, it should be noted that the gray
occurring, but he still made no objection or comment. Samsung is not involved in this appeal. No search of
While the gray Samsung was connected to the the Samsung produced evidence relevant to this
Cellebrite, some of the agents were outside case.
conducting the second vehicle search. Although the The white iPhone is the focus of this appeal.
signed consent form initially identified only Three days after the logical extraction, an
Gallegos’s vehicle and gray Samsung as the property examination of that data taken from the iPhone
subject to search, these agents soon discovered a showed that Gallegos was in possession of child
second cell phone (a white iPhone). Gallegos orally pornography. In the iPhone’s photo gallery, Gallegos
consented to a search of the iPhone, which was then had stored (without deleting) three videos depicting
inserted into the form. Gallegos does not challenge his sexual abuse of a young girl, whom Gallegos
the validity of this amendment of the consent form. identifies as his “young minor sister.” These images
The agents’ testimony suggests that, after giving would have been accessible to an agent conducting a
consent to search the iPhone orally, Gallegos manual search of the iPhone. When the pornographic
personally wrote the iPhone’s twelve-digit passcode videos were discovered, the case was reassigned to
onto the consent form that he had earlier signed. agents with more experience in child pornography
Gallegos remembers it differently, but he does not cases, including Special Agent Richard Wilfong, a
deny providing the passcode. According to his specialist in cyber investigations.

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