D.Minn.: Request for TRO against cell phone search denied; aside from the fact criminal investigations are almost never enjoined, nothing is shown here to justify even hearing it yet

Plaintiff’s claim that the government’s seizure of his cell phone should be enjoined and it should be returned is denied. There is no proof of service on anybody for the government. (1) There is no effort to comply with F.R.C.P. 65 on TROs and preliminary injunctions. “With respect to the requirements in Rule 65(b)(1)(A), Plaintiffs filed a verified complaint that includes allegations of irreparable injuries. With respect to subparagraph (b)(1)(B), however, Plaintiffs’ attorney filed no certification.” (2) Though Plaintiffs cite Federal Rule of Criminal Procedure 41(g) as the basis for their motion, Plaintiffs do not discuss the Rule or cite any authority that might explain why the cellphone’s return is appropriate under the Rule. To be clear, Plaintiffs cite Rule 41(g) in their Motion and in the caption and introductory paragraph of their Memorandum. But that’s it. Rule 41(g) goes unmentioned in the remainder of Plaintiffs’ 18-page memorandum.” Lindell v. United States, 22-cv-2290 (ECT/ECW) (D. Minn. Sep. 22, 2022). As for (3):

Whether Rule 41(g) requires the cellphone’s return is not obvious, and that’s understating things. Rule 41(g) allows a person whose property has been seized by the Government to petition the district court for its return. Jackson v. United States, 526 F.3d 394, 396 (8th Cir. 2008). A pre-indictment motion seeking the return of seized property, which the Eighth Circuit has said “is more properly considered a suit in equity rather than one under the Rules of Criminal Procedure,” turns on consideration of several factors. Black Hills Inst. of Geological Research v. United States Dep’t of Justice, 967 F.2d 1237, 1239 (8th Cir. 1992) (citation omitted). These include: “whether the action involved a callous disregard for constitutional rights,” “whether the party seeking return has an individual interest in and need for the property, whether the party has an adequate remedy at law, and whether the property would be irreparably damaged by a failure to return.” Id. at 1239, 1240 (citations omitted). “[W]hen the owner of seized property seeks injunctive relief for the return of property while the case remains in the investigative stage (i.e. before criminal charges are brought), the district court must also balance the government’s interest in retaining the property against the owner’s right to get it back.” Id. at 1240; see also Trump v. United States, No. 22-13005, 2022 WL 4366684, at **7–9 (11th Cir. Sept. 21, 2022) (applying like factors in adjudicating motion for partial stay of district court order). To these factors, add the following:

“It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.” Douglas v. City of Jeannette, 319 U.S. 157, 163 (1943); see also Deaver v. Seymour, 822 F.2d 66, 71 (D.C. Cir. 1987) (Silberman, J.) (rejecting civil suit to enjoin government from indicting plaintiff and explaining that “[p]rospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure.”); United States v. McIntosh, 833 F.3d 1163, 1172 (9th Cir. 2016) (“In almost all federal criminal prosecutions, injunctive relief … will not be appropriate. Federal courts traditionally have refused, except in rare instances, to enjoin federal criminal prosecutions.”).

Trump, 2022 WL 4366684, at *9. Far wiser to hear from Defendants (and Plaintiffs) regarding these and other potentially relevant factual and legal questions before deciding any aspect of Plaintiffs’ motion.

This is not new. See § 60.34 of the Treatise.

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