In Lindell v. United States, No. 22-3510 (8th Cir. Sept. 23, 2023), the Eighth Circuit affirms a district court’s denial of a preliminary injunction to MyPillow, Inc. and its Chief Executive Officer Michael Lindell to return “Lindell’s cell phone that was seized by federal agents on September 13, 2022.” The panel splits, though, on whether the equities might have changed in a year and remands for a hearing on that matter.
The Justice Department and the Colorado Secretary of State are investigating an alleged security breach into election management system servers in that state: the illegal forensic copying of the servers before and after a software upgrade in 2021.
“Another facet of the investigation—the subject of this litigation—involved FBI agents serving Lindell with a search and seizure warrant for his cell phone. Lindell’s 18-page complaint brought against the United States, the United States Attorney General, the United States Attorney for the District of Minnesota, and the Director of the FBI challenges the issuance and execution of the search warrant for his cell phone as violating his constitutional rights.” He also sought return of the phone under Fed. R. Crim. P. 41(g). The district court denied a temporary restraining order and preliminary injunction, and Lindell appealed.
The Eighth Circuit affirms the denial of the injunction. “In his opening brief to us, Lindell requests that we ‘enter an Order enjoining the investigation, prohibiting any use of the data seized pursuant to the warrant, and requiring the Government to return the seized property to him. The relief requested by Lindell is overbroad.”
“While he has at times attempted to assert otherwise, Lindell’s objective in this action is apparent—this litigation is a tactic to, at a minimum, interfere with and, at most, enjoin a criminal investigation and ultimately hamper any potential federal prosecution related to his, or others, involvement in the public disclosure of forensic images of Mesa County’s election management servers. Affording such relief is not only contrary to the purpose of a preliminary injunction but would open the door to a deluge of similar litigation by those under criminal investigation. This type of ultimate relief request is fatal to Lindell’s preliminary injunction application.”
The panel also holds that there was no “callous disregard of … constitutional rights” that might support judicial intervention into an active criminal investigation. It notes that the federal magistrate judge issuing the warrant determined that there was probable cause to seize and search Lindell’s cell phone. “Lindell takes issue with the manner and method of execution of the search warrant—his cell phone was seized from him while in the Hardee’s restaurant drive-through lane at 10:30 a.m. while he was on his way home from an out-of-state duck hunting trip. After calling his lawyer, Lindell decided to comply with the warrant and turn over his phone to the agents. Lindell’s irritation as to where and how the government took possession of his cell phone does not give rise to a constitutional claim, let alone a showing of a callous disregard for his constitutional rights.”
Two panel members went on to opine, though, that the time may be nigh to return the phone, a year after its seizure. “We are unable to determine from the record before us whether the government can reasonably justify its continued refusal to return Lindell’s cell phone, which at this point was seized nearly a year ago, or the data on it which is entirely unrelated to the offenses the government is investigating. Because the record has not been developed on this issue, we remand for the district court to hold a prompt hearing and balance the government’s interest in retaining Lindell’s cell phone and all its data against Lindell’s right to get the property back, noting that ‘[u]ntil criminal charges are brought, the property owner is to be considered an innocent bystander.’”
Judge Colloton dissents from this final section, though, regarding it little more than an advisory opinion and beyond the court’s appellate jurisdiction. “This discussion concerns a ruling that was never made on a motion that was never filed. The only motion before the district court came seventeen days after the seizure and was properly denied shortly thereafter in November 2022. The majority exceeds the proper scope of appellate jurisdiction by purporting to rule on a different dispute concerning the retention of seized property in September 2023.“
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