Michael J. Lindell; MyPillow, Inc. v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 22-3510
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Michael J. Lindell; MyPillow, Inc.
Plaintiffs - Appellants
v.
United States of America; Merrick B. Garland, in his official capacity as Attorney
General of the United States; United States Attorney, for the District of Minnesota;
Christopher Wray, in his official capacity as Director of the Federal Bureau of
Investigation
Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: June 14, 2023
Filed: September 22, 2023
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Before LOKEN, COLLOTON, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
MyPillow, Inc. and Chief Executive Officer Michael Lindell (collectively,
“Lindell”) appeal the district court’s denial of their motions for a preliminary
injunction and for the return of property—Lindell’s cell phone that was seized by
federal agents on September 13, 2022. The basis of Lindell’s action arises from an

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ongoing federal investigation into the individuals responsible for publishing forensic
images of election software used in the 2020 election in Mesa County, Colorado.
No charges have been filed. He argues on appeal that the federal investigation
violates his First Amendment rights of freedom of speech, freedom of association,
freedom of the press, and the right to petition for the redress of grievances. He also
contends the search warrant for his phone violates the Fourth Amendment’s
prohibition against general warrants. We affirm in part, reverse in part, and remand
for further proceedings consistent with this opinion.
I. BACKGROUND
Lindell utilizes various media platforms to advance his theories of election
fraud occurring during the 2020 presidential election. More specifically, in spring
2021, the Colorado Secretary of State directed local election officials to install a
software upgrade on election machine servers. Lindell believes these upgrades
unlawfully deleted unauthorized software used in the 2020 and 2021 elections in
Mesa County. See 52 U.S.C. § 20701 (mandating the preservation of election data
for 22 months after an election). Before and after the upgrade, a forensic image was
made of the election management system servers. The forensic images were made
public without authorization, which caused the Colorado Secretary of State to initiate
an investigation into the individuals responsible for the security breach.
Meanwhile, the federal government commenced its own investigation into the
security breach. According to Lindell’s complaint, the investigation thus far has
included residential searches by Federal Bureau of Investigation (“FBI”) agents of
several individuals suspected of making and publishing the forensic images.
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. For relief, Lindell seeks: (1) a

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declaration that the defendants’ actions violated his First, Fourth, and Fifth
Amendment rights; (2) a determination that the warrant is invalid; (3) an order
requiring the return of his cell phone pursuant to Federal Rule of Criminal Procedure
41(g) as well as any data seized from it; (4) a temporary restraining order prohibiting
the defendants from attempting any access to the data on the cell phone; (5) an order
requiring the defendants to immediately provide him with a copy of the affidavit
supporting the warrant; and (6) the recovery of attorney’s fees, costs, and expenses.
One day after filing his complaint (8 days after his phone was seized), Lindell moved
for a temporary restraining order seeking the return of his phone and data. After
denying Lindell’s motion for a temporary restraining order, the district court treated
his request as a motion for a preliminary injunction and for the return of property.
The government filed its brief in opposition on October 6, 2022. On November 3,
2022, the district court denied injunctive relief and declined to exercise equitable
jurisdiction over the motion for return of property.1 Lindell appeals.
II. DISCUSSION
We review the district court’s denial of a motion for a preliminary injunction
under the deferential abuse of discretion standard, with the underlying factual
findings examined for clear error and legal conclusions considered de novo. H&R
Block, Inc. v. Block, Inc., 58 F.4th 939, 946 (8th Cir. 2023). Because pretrial
injunctive relief is an extraordinary and an equitable remedy, the party seeking a
preliminary injunction bears the burden of establishing the necessity of the remedy.
Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 316 (8th Cir. 2009); see
Black Hills Inst. of Geological Rsch. v. U.S. Dep’t of Just., 967 F.2d 1237, 1239
(8th Cir. 1992) (stating that “a motion prior to the filing of criminal charges is more
properly considered a suit in equity rather than one under the Rules of Criminal
Procedure”).
1 The district court’s decision on Lindell’s request for a copy of the documents
supporting the warrant was not appealed and is not before us.

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Lindell’s claims are premised on alleged constitutional violations coupled
with a Rule 41(g) request for the return of property. In his motion for injunctive
relief, Lindell requested the return of his cell phone, the return of data seized by the
government from it, and an order precluding the government from accessing or
taking other action with respect his cell phone. 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.
The Supreme Court has noted that courts, in exercising equitable discretion,
“should pay particular regard for the public consequences in employing the
extraordinary remedy of injunction.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 24 (2008) (citation omitted). This Court has repeatedly recognized that the
purpose of injunctive relief is to preserve the status quo; it is not to give the movant
the ultimate relief he seeks. See McKinney ex rel. N.L.R.B. v. S. Bakeries, LLC,
786 F.3d 1119, 1125 (8th Cir. 2015) (finding the district court abused its discretion
in granting a preliminary injunction that did not act to preserve the status quo, but
instead improperly accelerated a decision on the ultimate remedy when the ordinary
adjudicatory process is likely to be as effective as an order for interim relief);
Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 490
(8th Cir. 1993) (reiterating the primary function of a preliminary injunction is to
preserve the status quo until the merits and appropriate relief can be determined).
Lindell’s motion for injunctive relief is a request for the ultimate relief he
seeks. 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. See

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id.; see also Union Home Mortg. Corp. v. Cromer, 31 F.4th 356, 365 (6th Cir. 2022)
(declining to modify an overbroad injunction to rectify the defects); Williams v.
Recovery Sch. Dist., 859 F. Supp. 2d 824, 833 (E.D. La. 2012) (dismissing claim for
injunctive relief because the request is fatally overbroad and fails to state a claim).
In addition, Lindell cannot meet his burden of showing the exercise of
equitable jurisdiction over the return of his seized phone data is warranted. “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). The Eleventh Circuit has
described “an exacting test” for determining when the exercise of equitable
jurisdiction over suits flowing from the seizure of property is appropriate. Trump v.
United States, 54 F.4th 689, 697 (11th Cir. 2022). This test involves consideration
of four factors: (1) whether there has been a “callous disregard” for the plaintiff’s
constitutional rights; (2) the interest in and need for the material that plaintiff has
asked to be returned; (3) whether the plaintiff has shown irreparable injury if the
property is not returned; and (4) whether an adequate remedy at law exists to redress
the plaintiff’s grievance. Id. (quoting Richey v. Smith, 515 F.2d 1239, 1243-44
(11th Cir. 1975)); see Black Hills Inst., 967 F.2d at 1239-40 (reciting the same
factors when deciding whether to invoke general equitable jurisdiction over 10 tons
of dinosaur bones when the government’s rationale for the seizure and retention of
the “priceless, archeological treasure” was based on an ongoing criminal
investigation). The purpose of this test is to strike a balance between unnecessary
judicial interference with the executive branch’s criminal enforcement authority
while affording relief “in rare instances where a gross constitutional violation would
otherwise leave the subject of a search without recourse.” Trump, 54 F.4th at 697.
Here, a federal magistrate judge determined there was probable cause to seize
and search Lindell’s cell phone. The warrant explicitly authorized the search of
Lindell’s person for his cell phone as well as the seizure and search of the phone for
records and information constituting “fruits, evidence, or instrumentalities” of three
federal offenses—18 U.S.C. § 1028(a)(7) (identity theft); 18 U.S.C. § 1030(a)(5)(A)

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(intentional damage to a protected computer); and 18 U.S.C. § 371 (conspiracy to
commit identity theft and/or cause intentional damage to a protected computer).
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).
While the phone very likely also contains a plethora of information unrelated
to the government’s investigation, such as business-related correspondence and
transactions; photographs; passwords; apps; potential attorney-client

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communications; and private communications with friends, family, and business
associates, this fact does not transform the warrant into a general warrant. See
United States v. Fiorito, 640 F.3d 338, 347 (8th Cir. 2011) (determining a search
warrant for entire files involving the defendant along with an illustrative list of items
to be seized, although expansive, did not authorize an improper blanket search for
documents for no particular purpose but instead had the purpose of “discovering
evidence of an ongoing, well-defined equity-stripping scheme”). In addition, aware
Lindell’s phone would hold information unrelated to the investigation, the
government indicated it implemented filter protocols to safeguard confidential,
private, and privileged materials on Lindell’s phone. If contrary information is
developed and Lindell is charged, he will have an opportunity to raise his
constitutional issues and any other legal challenges at that time. See Matter of
Search of 4801 Fyler Ave., 879 F.2d 385, 389 (8th Cir. 1989) (noting the district
court abused its discretion in exercising equitable jurisdiction because if criminal
proceedings are instituted, the defendant will have an adequate remedy to challenge
the search).
Although Lindell insists that his cell phone is essential for conducting his
businesses, Lindell acknowledged in a sworn declaration that his phone had been
backed up five days prior to its seizure. Even after the seizure, Lindell had access
to, and continues to have access to, the vast majority of information contained on the
cell phone seized by federal agents. While he has been deprived of possession of
his phone, he has not been deprived access to the phone’s contents, other than
perhaps a limited slice of no more than five days’ worth of information that he has
neither detailed nor identified with any particularity as vital to his businesses. Under
these circumstances, Lindell cannot show that the government’s seizure of the data
consistent with the terms in the search warrant has caused irreparable injury to
warrant the exercise of equitable jurisdiction.
Lastly, the mere threat of potential future prosecution is insufficient to
establish irreparable harm for exercising equitable jurisdiction. As we have noted:

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[I]f we were to allow the mere threat of future prosecution to constitute
irreparable harm these procedures would not be extraordinary, but quite
ordinary. Every potential defendant could point to the same harm,
thereby invoking the equitable powers of the court. This has not been
the practice of the past, and we see no reason to alter that course now.
Id.
The district court did not abuse its discretion in determining the facts and
circumstances of this case do not warrant the exercise of equitable jurisdiction to
afford Lindell the relief he requests with regard to the government’s access or seizure
of his cell phone data consistent with the search warrant’s terms. See Trump 54
F.4th at 698 (emphasizing “again and again that equitable jurisdiction exists only in
response to the most callous disregard of constitutional rights, and even then only if
other factors make it clear that judicial oversight is absolutely necessary”).
Nonetheless, absent sufficient justification, the government has no right to
hold onto property that is not contraband indefinitely. See United States v. Premises
Known as 608 Taylor Ave., Apartment 302, Pittsburgh, Pa., 584 F.2d 1297, 1302
(3d Cir. 1978) (“[T]he government may not by exercising its power to seize, effect
a De facto forfeiture by retaining the property seized indefinitely.”). Lindell asked
the district court to order the government to return his cell phone and data, pointing
out that the government has access to important information regarding his businesses
as well as privileged attorney-client information. Although Lindell sought the return
of his property just over a week after it was seized and the district court issued its
order six weeks later, the government has maintained the same position throughout
the proceedings and continues to do so today—that is, there are no procedural or
time limits on the retention of property seized pursuant to a warrant, even that which
is not contraband, if the government believes it has “an ongoing evidentiary need”
for the property. At oral argument—nine months after Lindell asked for the return
of his phone and its data—the government maintained that the district court did not
abuse its discretion in denying relief, reiterating its belief that it can continue to retain
Lindell’s cell phone and all its data pursuant to “general principles” that merely

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require the government to believe it has “an ongoing evidentiary need.” The
continued retention of the phone as well as the government’s ability to access and
retain all the phone’s data are issues that fell within the purview of Lindell’s motion
for return of property and remain points of contention today.
In general, the constitution protects individuals from unlawful, excessive, and
unreasonable interference by government agents. The reasonableness of holding
onto seized property is not dependent on the government’s belief it has “an ongoing
evidentiary need” or the statute of limitations for the offense under investigation, as
that might “in many cases impose an impermissible burden on a citizen whose
property is potential evidence” and be “tantamount to a forfeiture without the
procedures required by statute and by due process.” Id. The United States has not
argued, nor does the record suggest, that Lindell’s cell phone is contraband. The
government’s continued retention of the phone and all its data raises constitutional
issues distinct from the lawfulness of the search warrant or its execution.
At oral argument, when pressed, the only need for retaining Lindell’s phone
that the government was able to identify was for the purpose of authentication. But
authentication can occur by several methods, and the government has not explained
why Lindell’s phone cannot be authenticated by any other means, such as by
introducing photographs of the phone and/or testimony regarding the phone’s serial
number and identification. Cf. Black Hills Inst., 967 F.2d at 1240 (stating that when
the government’s interest in retaining the property is merely to keep it as evidence,
the court should consider whether this purpose could be equally served by
alternatives to holding the evidence itself).
Moreover, as acknowledged by the district court, Rule 41(e)(2)(B), of the
Federal Rules of Criminal Procedure, provides for a two-step process to search
electronic items, such as a cell phone, which explicitly permits the copying of
electronically stored information. Once that information is copied, the critical
inquiry is whether the government has an adequate justification for continuing to
withhold the property. See id. at 1240-41 (noting the government may retain seized

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goods “for a reasonable time while the investigation and prosecution proceed” but
the district court must balance the government’s interest in retaining the property
against the owner’s right to get it back); Mr. Lucky Messenger Serv., Inc. v. United
States, 587 F.2d 15, 17 (7th Cir. 1978) (concluding that when no charges have been
filed for 17 months after the property was seized and the government is unable to
present evidence justifying such a delay, “constitutional violations emerge which
would seem on equitable principles to mandate that the property be returned”).
In this case, the interest in returning the seized property is even more
compelling given the unique nature of the property. The Supreme Court has
recognized that cell phones are different from other property both in “a quantitative
and a qualitative sense.” Riley v. California, 573 U.S. 373, 393 (2014). The seizure
of cell phones implicates privacy concerns far beyond those of other items. Id.
When a cell phone is seized by the government and all its data is searched and
retained by the government, there is undoubtedly an overbroad capture of
information. The retention of data unrelated to the government’s investigation and
which goes beyond the terms of the search warrant implicates an individual’s right
to be free from unreasonable searches and seizures. Lindell specifically raised this
issue when he explained in his motion before the district court and again in his
opening brief that his phone contains privileged attorney-client information as well
as important information about his businesses and argued that the government’s
retention violates his constitutional rights.
As noted by the Riley Court, modern cell phones “are now such a pervasive
and insistent part of daily life that the proverbial visitor from Mars might conclude
they were an important feature of human anatomy.” Id. at 385. Given the necessity
of cell phones in everyday life and the related privacy concerns regarding the breadth
of data that they contain, the government’s continued retention of Lindell’s cell
phone and all its data (including that which is entirely unrelated to the government’s
investigation), without adequate justification, could amount to a callous disregard of
Lindell’s constitutional rights.

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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.”
Black Hills Inst., 967 F.2d at 1244.
III. CONCLUSION
We affirm the district court’s denial of Lindell’s motion for a preliminary
injunction. We reverse the district court’s decision not to exercise equitable
jurisdiction over Lindell’s motion for return of property as it relates to the continued
retention of the cell phone itself and all its data, and remand for proceedings
consistent with this opinion.
COLLOTON, Circuit Judge, concurring in part and dissenting in part.
I concur in the court’s decision affirming the district court’s order of
November 3, 2022, which denied appellant Lindell’s motion of September 30, 2022,
seeking a preliminary injunction. The requested injunction would have required the
government to return a cell phone that was seized from Lindell on September 13,
2022, and would have prohibited the government from using any information
retrieved from the cell phone.
As the court explains, Lindell failed to show irreparable harm and callous
disregard of his constitutional rights that might have justified the exercise of
equitable jurisdiction. The phone was seized pursuant to a warrant that was issued
based on a judicial determination of probable cause. The manner and method of
executing the warrant did not give rise to a constitutional claim. The warrant was

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not an impermissible general search warrant. The government “implemented filter
protocols to safeguard confidential, private, and privileged materials on Lindell’s
phone.” Lindell acknowledged that he backed up the data on his phone five days
before the seizure, and he made no showing that he was deprived of any information
that is vital to his business. Lindell made no claim that he was unable to replace the
seized hardware or that he was left at the time of his motion without a fully
functioning cell phone.
I dissent from the portion of the court’s opinion that purports to “reverse” in
part the decision of the district court. The stated reason for reversal is that the district
court did not “balance” the interests of the parties to determine “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.” 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.
If Lindell now wishes to secure a return of his old phone as of September
2023, rather than “to, at a minimum, interfere with and, at most, enjoin a criminal
investigation” in September 2022, ante, at 4, then he may file a straightforward
motion for return of property based on the length of retention. The parties may then
address the matter in proper briefing and evidentiary presentations, rather than
spontaneously during an appellate oral argument regarding a different dispute. The
district court may rule on the issue if it is presented, and either party may pursue an
appeal based on a developed record.
There is also reason to doubt the substance of the majority’s advisory opinion.
The basis for the government’s potential retention of property as of September 2023
was not briefed. Counsel addressed the topic briefly at oral argument in June 2023
when pressed about a matter outside the scope of the appeal. The majority

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downplays the government’s interest in authentication, but the record does not show
whether Lindell is willing to stipulate that data retained by the government would
be a true and accurate copy of the contents of his phone on September 13, 2022. The
majority’s reference to Riley v. California, 573 U.S. 373 (2014), is significantly out
of context. Riley held that officers were required to obtain a warrant to search cell
phone data. The government agents here obtained a warrant, and this court
concludes that the manner of searching the data did not evidence a callous disregard
of constitutional rights. Missing from the majority opinion is any suggestion of why
Lindell might suffer irreparable harm as of September 2023 if filtered data are
retained and secured in the same status throughout the ongoing investigation.
Keeping an old cell phone whose owner backed up the data and replaced the
hardware is markedly different than long-term retention of $65,000 in cash, Mr.
Lucky Messenger Serv., Inc. v. United States, 587 F.2d 15, 17 (7th Cir. 1978), or
sixty-five million-year-old dinosaur bones, Black Hills Inst. of Geological Rsch. v.
U.S. Dep’t of Justice, 967 F.2d 1237, 1240-41 (8th Cir. 1992).
The district court properly denied the motion that was before that court, and
the majority does not suggest otherwise. I would simply affirm the ruling that is
under appellate review.
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