The question here is: how long can the government keep your cell phone when there is an investigation but no charges, indictment, or arrest? We’ll try to answer this question based on a current case dealing with these issues.
Example Case
The My Pillow Guy, Mike Lindell, who is a believer in election fraud, had a warrant executed against him, and his cell phone was seized. However, he was not charged with any crimes, and he alleged this was a witch hunt.
Lindell asked for the following:
- a -3- declaration that the defendants’ actions violated his First, Fourth, and Fifth Amendment rights;
- a determination that the warrant is invalid;
- 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;
- a temporary restraining order prohibiting the defendants from attempting any access to the data on the cell phone;
- an order requiring the defendants to immediately provide him with a copy of the affidavit supporting the warrant; and
- the recovery of attorney’s fees, costs, and expenses.
One day after filing his complaint (eight days after his phone was seized), Lindell moved for a temporary restraining order seeking the return of his phone and data.
Outcome
The appellate court did not buy most of Lindell’s arguments. However, the court said the government cannot hold onto a person’s cell phone forever if they are not charging them with a crime. The court said cell phones are different than other seized items because, today, cell phones are an integral part of our daily lives. The court said the record was not well developed by the lower court and it must have a hearing to determine why the government needs to maintain Lindell’s cell phone if criminal charges are not forthcoming.
