MyPillow CEO Mike Lindell: Constitutionally Seized?

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Conservative judges tell MyPillow CEO Mike Lindell that having his phone seized in Hardee’s drive-thru wasn’t ‘callous disregard for his constitutional rights’

MyPillow CEO Mike Lindell waits outside the West Wing of the White House before entering on January 15, 2021. (Photo by Drew Angerer/Getty Images.)

MyPillow CEO Mike Lindell’s arguments before the U.S. Court of Appeals for the Eighth Circuit over the federal government’s seizure of his cell phone in September 2022 fell flat on Friday, as a panel of conservative judges affirmed that his “irritation as to where and how the government took possession of his cell phone does not give rise to a constitutional claim.”

U.S. Circuit Judges Ralph Erickson, James Loken, and Steven Colloton, respectively appointed by Presidents Donald Trump, George H.W. Bush, and George W. Bush, refused to grant Lindell a preliminary injunction to get his phone back from the feds. Erickson wrote the opinion, and Colloton both concurred and dissented in part.

Related Coverage: As Law&Crime reported last year after Lindell’s phone was seized, the warrant sought “[a]ll records and information on the LINDELL CELLPHONE that constitute fruits, evidence, or instrumentalities of violations of 18 U.S.C. §§ 1028(a)(7) (identity theft), 1030(a)(5)(A) (intentional damage to a protected computer), and/or 371 (conspiracy to commit identity theft and/or to cause intentional damage to a protected computer).”

The warrant was issued in connection with a federal investigation into several “subjects,” including Lindell and Tina Peters (R), a former clerk in Mesa County, Colorado, who was indicted in the Centennial State alongside her former deputy for allegedly breaching Dominion Voting Systems machines to try and prove Trump’s “stolen election” claims.

Lindell, for his part, has been trying to get his phone back almost since the moment it was taken from him in a Hardee’s drive-thru in Mankato, Minnesota—while he was on his back from a duck hunting trip. He raised First Amendment and Fourth Amendment claims, but those arguments failed before U.S. District Judge Eric Tostrud.

The district judge refused to return Lindell’s phone and told the MyPillow CEO he could challenge the search’s constitutionality if he ended up indicted in the case. In June, Lindell’s lawyers argued before the Eighth Circuit in a bid to have Tostrud’s ruling overturned.

The DOJ argued that Lindell had boldly asked the appellate court to create a new rule that would allow any subject of a search warrant to shut down a government’s investigation into potential crimes.

U.S. Circuit Judge Erickson on Friday noted that Lindell had asked for a finding that the government violated his First, Fourth, and Fifth Amendment rights; a declaration that the warrant was “invalid”; an order for the cell phone’s return to Lindell; and an order restraining the government from accessing the phone data.

Lindell did not get any of the above because his request was "overbroad." Erickson wrote:

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.

The appellate court affirmed that Lindell’s gripes about the Hardee’s phone seizure amounted neither to a constitutional claim nor “a showing of a callous disregard for his constitutional rights,” especially when considering that Lindell himself “acknowledged in a sworn declaration that his phone had been backed up five days prior to its seizure,” so he has the data.

The majority did warm somewhat to Lindell’s complaints about the continued retention of his cell phone while pointing out that the government only said it needed the device “for the purpose of authentication.”

“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,” the majority said, while acknowledging that the record before the court “has not been developed on this issue.”

In the end, the Eighth Circuit majority upheld the lower court’s denial of a preliminary injunction but reversed Tostrud’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.” The court handed the case back to Tostrud “for proceedings consistent with this opinion.”

Sign up for the Law & Crime Daily Newsletter for more breaking news and updates. But U.S. Circuit Judge Colloton didn’t appreciate the “portion” of his colleagues’ opinion that “purports to'reverse' in part the decision of the district court.”

“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,” Colloton wrote. “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.”

Colloton suggested Lindell could file a new motion in the district court for the return of his phone “based on the length of retention.” After such a motion and a ruling thereon in the lower court, the issue could then properly be brought up on appeal.

But as things stand now, Colleton wrote, “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.”

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