CA8: Seizure of cell phone off person by SW wasn’t outrageous conduct warranting return

Seizure of plaintiff’s cell phone by search warrant off his person in a Hardee’s drive thru wasn’t outrageous governmental conduct justifying return of the phone under Rule 41(g). Also, the equitable claim that the phone is necessary for business purposes doesn’t help him because he admits the phone was backed up five days before and it can be downloaded. [I advise clients get another phone for the same number and download from the cloud because it’s way easier and cheaper than litigating a Rule 41(g) return on the front end.] Lindell v. United States, 22-3510 (8th Cir. Sept. 22, 2023):

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. Likewise, Lindell’s frustration that the government has not prosecuted the Colorado Secretary of State for conduct he believes violates federal law does not signify that the government’s investigation into Lindell’s actions amounts to a callous disregard for his constitutional rights. As in this case, most subjects of a search warrant cannot satisfy the extraordinarily high hurdle of a callous disregard of their constitutional rights, which is intentional and designed to prevent “a flood of disruptive civil litigation.” Trump, 54 F.4th at 698 (quoting Deaver v. Seymour, 822 F.2d 66, 71 (D.C. Cir. 1987)).

Similarly, Lindell’s claims that the search warrant is a general warrant, and he will suffer irreparable injury if the phone is not promptly returned to him are unavailing. The warrant described with specificity three federal offenses the government is investigating. It identified the particular records and information that law enforcement may seize from Lindell’s cell phone. It further authorized the FBI to deliver a complete copy of the electronic data to attorneys for the government and their support staff for independent review. See Fed. R. Crim. P. 41(e)(2)(B) (enabling law enforcement to seize storage media or seize and copy electronically stored information for later review).

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