70 F.4th 898
5th Cir.2023Background
- George Anibowei, a naturalized U.S. citizen and Texas immigration attorney, alleges ICE/CBP searched his cell phone at the U.S. border without a warrant in October 2016 and copied data; he alleges at least four additional warrantless phone searches since then.
- He contends the government viewed and likely copied attorney–client privileged communications and that the government still retains copied data.
- Anibowei sued DHS, CBP, ICE, TSA and agency heads, challenging (1) the October 2016 search and subsequent searches and (2) ICE and CBP policies that authorize warrantless searches and retention of electronic-device data at the border.
- He moved for summary judgment or, alternatively, a preliminary injunction to bar future warrantless phone searches and to require return/destruction of copied data; the district court denied both motions on a thin record.
- The government later admitted an advanced search and data download occurred in October 2016; on appeal the Fifth Circuit reviewed only the denial of the preliminary injunction and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Irreparable harm from government retention of copied phone data | Retention of highly sensitive and attorney–client privileged data causes ongoing, irreparable injury. | Mere retention of seized property does not automatically establish irreparable harm; plaintiff must show concrete, specific harm. | Held: Plaintiff offered only conclusory allegations and no specific proof identifying privileged material or concrete harm; insufficient to show irreparable injury. |
| Likelihood of future warrantless searches causing irreparable harm | Because policies authorize warrantless device searches and agents have repeatedly searched him, future unconstitutional searches are likely each time he travels. | Fifth Circuit has not adopted a warrant requirement for border device searches; plaintiff produced only his verified complaint, insufficient to show a likely future search. | Held: Evidence insufficient to show a significant, imminent likelihood of future irreparable injury; injunction denied. |
| Whether a warrant (or reasonable-suspicion) requirement applies to border cell-phone searches | A warrant — or at minimum reasonable suspicion — is required to search and seize cell-phone data at the border. | No binding Supreme Court or Fifth Circuit decision imposes a warrant requirement for border searches; policies authorize searches without a warrant. | Held: Court declined to adopt a new constitutional rule in this interlocutory posture; did not grant summary judgment and declined to decide the substantive Fourth Amendment question for purposes of the injunction. |
| Pendent appellate jurisdiction over denial of summary judgment | Plaintiff seeks review of the district court’s denial of summary judgment along with the injunction appeal. | Denial of summary judgment is not automatically appealable; pendent jurisdiction is limited and requires the decisions be inextricably intertwined or necessary for meaningful review. | Held: Court declined to exercise pendent appellate jurisdiction over the summary-judgment denial because the injunction ruling could be reviewed without resolving the merits; summary-judgment denial not reviewed. |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (sets irreparable-injury and likelihood-of-success standards for preliminary injunctions).
- United States v. Search of Law Office, Residence & Storage Unit Alan Brown, 341 F.3d 404 (5th Cir. 2003) (attorney’s vague allegations of privileged seizures insufficient to show irreparable harm without identification of specific privileged materials).
- Byrum v. Landreth, 566 F.3d 442 (5th Cir. 2009) (limits on exercising pendent appellate jurisdiction over non-appealable interlocutory orders).
- United States v. Molina-Isidoro, 884 F.3d 287 (5th Cir. 2018) (noting Fifth Circuit has not recognized a warrant requirement for border searches).
- Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384 (5th Cir. 1984) (standard of review: district court’s grant/denial of preliminary injunction is discretionary and reviewed for abuse of discretion).