Fourth Amendment

Lawyer who challenged border cellphone searches isn’t entitled to injunction, 5th Circuit says

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A Texas immigration lawyer sued in 2016 after a cellphone search in which government agents allegedly copied data from his cellphone. Image from Shutterstock.

A Texas immigration lawyer whose cellphone was searched at least five times when he entered the United States isn’t entitled to a preliminary injunction preventing such searches without a warrant, a federal appeals court has ruled.

The 5th U.S. Circuit Court of Appeals at New Orleans ruled against lawyer George Anibowei in a June 19 opinion. Defendants in the case include U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement and the Transportation Security Administration.

The appeals court said Anibowei isn’t entitled to an injunction because he failed to demonstrate a substantial threat of irreparable injury.

Anibowei sued in 2016 after the first cellphone search in which government agents allegedly copied data from his cellphone. In his second amended complaint, Anibowei does not explicitly assert that additional data was copied in the subsequent searches. But he said he is “virtually certain” that border agents copied privileged attorney-client communications at least once.

Anibowei argued that he suffers ongoing irreparable injury because his private information and his confidential attorney-client communications are currently in the government’s possession. He also argued that he suffers injury because he is subject to warrantless cellphone searches every time that he travels internationally.

The 5th Circuit rejected both arguments. There is no injury from future warrantless searches because they are not unconstitutional, the appeals court said.

“This circuit has never recognized a warrant requirement for any border search,” according to the 5th Circuit.

The appeals court also said government retention of unlawfully seized property is not sufficient, standing alone, to establish irreparable injury. Anibowei’s phone was returned to him, so he should be able to point to specific copied information that harms him, the appeals court said. But he did not do so.

“Anibowei’s allegations are conclusory,” the 5th Circuit concluded.

Hat tip to Law360, which covered the opinion.

Related article: “US brief opposes lawyer who objected to border searches of his cellphone”

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