{"id":53224,"date":"2022-09-23T12:56:49","date_gmt":"2022-09-23T17:56:49","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=53224"},"modified":"2022-09-23T12:56:49","modified_gmt":"2022-09-23T17:56:49","slug":"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","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=53224","title":{"rendered":"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"},"content":{"rendered":"\n

Plaintiff\u2019s claim that the government\u2019s 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. \u201cWith 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\u2019 attorney filed no certification.\u201d (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\u2019s 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\u2019s it. Rule 41(g) goes unmentioned in the remainder of Plaintiffs\u2019 18-page memorandum.\u201d Lindell v. United States<\/a>, 22-cv-2290 (ECT\/ECW) (D. Minn. Sep. 22, 2022). As for (3):<\/p>\n\n\n\n\n\n\n\n

Whether Rule 41(g) requires the cellphone\u2019s return is not obvious, and that\u2019s 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 \u201cis more properly considered a suit in equity rather than one under the Rules of Criminal Procedure,\u201d turns on consideration of several factors. Black Hills Inst. of Geological Research v. United States Dep\u2019t of Justice, 967 F.2d 1237, 1239 (8th Cir. 1992) (citation omitted). These include: \u201cwhether the action involved a callous disregard for constitutional rights,\u201d \u201cwhether 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.\u201d Id. at 1239, 1240 (citations omitted). \u201c[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\u2019s interest in retaining the property against the owner\u2019s right to get it back.\u201d Id. at 1240; see also Trump v. United States, No. 22-13005, 2022 WL 4366684, at **7\u20139 (11th Cir. Sept. 21, 2022) (applying like factors in adjudicating motion for partial stay of district court order). To these factors, add the following:<\/p><\/blockquote>\n\n\n\n

\u201cIt is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.\u201d 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 \u201c[p]rospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure.\u201d); United States v. McIntosh, 833 F.3d 1163, 1172 (9th Cir. 2016) (\u201cIn almost all federal criminal prosecutions, injunctive relief \u2026 will not be appropriate. Federal courts traditionally have refused, except in rare instances, to enjoin federal criminal prosecutions.\u201d).<\/p>

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\u2019 motion.<\/p><\/blockquote>\n\n\n\n

This is not new. See \u00a7 60.34 of the Treatise. <\/p>\n","protected":false},"excerpt":{"rendered":"

Plaintiff\u2019s claim that the government\u2019s 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. … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-53224","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53224","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=53224"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53224\/revisions"}],"predecessor-version":[{"id":53225,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53224\/revisions\/53225"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=53224"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=53224"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=53224"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}