His alleged secrets may be safe with Apple.
The iPhone belonging to the main suspect in the macabre murder of a 26-year-old Hofstra graduate has been a mystery to the Manhattan District Attorney’s office since authorities took it from him about 10 months ago, prosecutors disclosed in a court filing Tuesday.
James Rackover, 26, appeared with alleged accomplice Lawrence (Larry) Dilione, 29, in Manhattan Supreme Court Tuesday for a pretrial conference at which the smart phone lockout was reported in court papers. Rackover is accused in the stabbing and beating death of Joseph Comunale inside Rackover’s fourth-floor luxury E. 59th St. apartment on Nov. 13.
Assistant District Attorney Antoinette Carter, responding to a gripe by Rackover’s team that “the people have taken an unreasonable amount of time to search the devices,” admitted the search has not happened.
Rackover’s phone was confiscated during the execution of a search warrant at the start of the investigation.
“While it is accurate that the people have not searched these devices — phones and laptop,
this is because they are locked by a password,” Carter wrote. “These devices as of today, have not been opened by technicians because the password key has not been broken.”
She added that, “Since the defendant has the passwords, and the people do not, it is odd that he complains
about the delay in searching the devices.”
Prior to the widespread use of encryption on Apple and Google smartphones that began around 2014, prosecutors could easily access a defendant’s text messages, photographs and other potentially useful clues and evidence stored on a device after obtaining a search warrant.
Manhattan DA Cyrus Vance Jr. has been a vocal opponent of the ironclad encryption protections used by big technology companies that are meant to guard consumers but can create headaches for law enforcement.
In March 2016, Vance testified before the House Committee on the Judiciary about the issue of encryption and law enforcement.
“iPhones are now the first consumer products in American history that are beyond the reach of Fourth Amendment warrants,” his written testimony says.
Vance said “default device encryption cripples even the most basic steps of a criminal investigation,” in an age where phones commonly store what suspects formerly had in safes and filing cabinets.
In the case of a Sept. 2, 2015, terrorist shooting in San Bernardino, Calif., the FBI reportedly paid more than $1 million to professional hackers to bypass an iPhone 5C’s security system in a one-time effort to jailbreak a suspect’s phone.
Vance’s office declined to comment on the issue of being locked out of Rackover’s phone and whether a similar measure was under consideration.
Rackover lawyer Robert Caliendo said he didn’t know whether the DA’s office would “contract with anyone to hack into Rackover’s phone.
“We will certainly review all methods of evidence collection, and if warranted, litigate accordingly,” Caliendo said. “Of course, these issues are distinct from others we’ve already raised, such as whether the existing cell phone search warrants were over-broad or insufficiently particular.”
Rackover is the “surrogate son” of celebrity jeweler Jeffrey Rackover, whose apartment is on the 32nd floor of the same building. Comunale was last seen at the building and is believed to have been killed there, possibly in a dispute over cigarettes.
Carter, in a separate filing, also defended detectives for grilling Dilione after — he says — he’d already hired a lawyer who was on his way to the precinct.
In a key statement, which Dilione’s lawyer says was illegally taken, the suspect told cops the location of Comunale’s body, which was buried in a shallow grave in Oceanport, N.J.
“Overarching all the defendant’s claims, is the obligation of the police to insure publicsafety by attempting to locate a missing person who may be a crime victim,” Carter argued.
She said it “creates an exception to the Miranda rules … and the right to counsel.”
The contentious issue is expected to be debated at a future hearing.
