CA5: No preliminary injunction for copying attorney cell phone at border

An immigration attorney who claimed the government copied his cell phone four times after he returned from other countries wasn’t entitled to a preliminary injunction. “Government retention of unlawfully seized property is not sufficient, standing alone, to establish irreparable injury.” Anibowei v. Morgan, 2023 U.S. App. LEXIS 15198 (5th Cir. June 19, 2023):

Anibowei has not offered sufficient evidence to establish that the government’s alleged retention of his data causes him irreparable injury. Anibowei argues that he is suffering ongoing irreparable harm because “during its warrantless October 2016 search of his cell phone the [g]overnment copied and retained highly sensitive personal information from Mr. Anibowei’s cell phone, including attorney-client privileged information.” The government admits “that an advanced search was performed of Anibowei’s cell phone on one occasion, and that information from Anibowei’s cell phone was downloaded and eventually retained as a result of the advanced search.” Still, Anibowei fails to establish that the government’s retention of his information constitutes irreparable harm.

Government retention of unlawfully seized property is not sufficient, standing alone, to establish irreparable injury. In a related context, Federal Rule of Criminal Procedure 41(g) provides that “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.” In addition to showing that the property was seized unlawfully, this court requires “a substantial showing of irreparable harm” before a court can order the suppression of seized evidence. The irreparable-harm requirement would be rendered meaningless if retention of unlawfully seized property was per se an irreparable injury. To establish irreparable injury, Anibowei cannot solely rely on the fact that the government retained his information. Instead, Anibowei must specifically show how the government’s retention of his seized information causes him harm.

To that end, Anibowei argues that the government’s retention of attorney–client privileged information causes “serious harm to him personally and to his clients.” However, even if the retention of attorney–client privileged information constitutes irreparable harm, Anibowei’s scant and circumstantial evidence is insufficient to establish that the government copied and retained attorney–client privileged information from his cell phone.