D.Kan.: USMJ in Kansas couldn’t issue SW for property moved to Oklahoma; complete jurisdictional failure

Officers obtained a search warrant for defendant’s computer in Kansas for child pornography. When they got to the house, defendant was gone, visiting in Oklahoma, his roommate said, with the computer. Officers went back to the magistrate and got another search warrant for the house in Oklahoma where defendant was staying, but they were to search only for defendant’s computer. The search warrant was issued without authority, and even the good faith exception won’t save it even though this was all clearly done in good faith. United States v. Krueger, 2014 U.S. Dist. LEXIS 15495 (D. Kan. February 7, 2014):

Defendant argues that the Oklahoma warrant violates Rule 41(b). The government’s response is confusing, at best. It appears that the government believes the property in this case could have been moved at the time the warrant was requested and therefore, the warrant complies with Rule 41(b)(2). (Doc. 13 at 8). The warrant issued by Judge Humphreys authorized search and seizure of property in Emporia, Kansas. At the time the warrant was applied for and issued, there was no suggestion that the items specified were not in Emporia or might move outside Kansas. When Moore executed Judge Humphreys’ warrant, he learned not that defendant might move the items outside Kansas; he learned that both defendant and presumably the items sought to be seized already were in Oklahoma. That was the information presented to Judge Gale. There can be no question that Judge Gale was requested to issue, and did issue, a search warrant for property located outside Kansas. Under the facts presented to him, he could not do so and the warrant was void, ab initio.

The government also contends that the statutory language is ambiguous and, therefore, must be construed in its favor. Rule 41(b)(2) unambiguously states that the property must be located in the district at the time the warrant is issued, regardless of its ability to be moved. It was not. Therefore, Rule 41(b)(2) was not applicable.

Defendant contends that because Judge Gale’s warrant is void, additional evidence must be suppressed. The government responds that the violation does not result in automatic exclusion of the evidence. The Tenth Circuit has held that “unless there is a clear constitutional violation, non-compliance with Rule 41 requires suppression of evidence only where (1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the rule.” United States v. Rome, 809 F.2d 665, 669 (10th Cir. 1987); see also United States v. Sims, 428 F.3d 945, 955 (10th Cir. 2005). Defendant does not contend that (2) is applicable.

The Tenth Circuit cases discussing this standard, however, do not address a violation of Rule 41(b)(2). The Tenth Circuit has applied the standard to the following violations: executing the search one day late, Sims, 428 F.3d 945 (Rule 41(e)); failure to list a date, United States v. Hugoboom, 112 F.3d 1081 (10th Cir. 1997)(same); failure to record portions of oral testimony in a call, Rome, 809 F.2d 665 (Rule 41(c)); and execution of the warrant by state officers, United States v. Pennington, 635 F.2d 1387 (10th Cir. 1980) (same).

The government cites an unpublished District of Minnesota case to support its position that the evidence should not be suppressed. In United States v. Vann, No. 07-247, 2007 U.S. Dist. LEXIS 90038, 2007 WL 4321969 (D. Minn. Dec. 6, 2007), the magistrate judge issued three warrants in a drug conspiracy investigation. One of those warrants was for property outside of the district. The district court held that Rule 41(b) was violated but that defendant failed to establish prejudice or intentional disregard for the rule. Therefore, the evidence was not suppressed. The court is not persuaded by the decision.

In Rome, the Tenth Circuit stated that the question is whether the rule violation was “of such magnitude as to require exclusion.” 809 F.2d at 668-669. The Circuit emphasized that it does not “condone careless police work and lack of preparation, nor [does it] hold that the failure to understand the rules governing their conduct will excuse law enforcement officers from compliance therewith.” Id. at 670. In Rome, however, the Circuit held that the agent and the magistrate “complied with the spirit, if not the letter” of the rule. Id. The same cannot be said in this case. The “jurisdictional flaw in this warrant [cannot] be excused as a technical defect.” United States v. Glover, 736 F.3d 509, 515 (D.C. Cir. 2013); see also United States v. Baker, 894 F.2d 1144, 1147 (10th Cir. 1990)(finding a warrant issued by a state court judge to be void because it was outside of his statutory jurisdiction).

The court finds that defendant has shown prejudice in that if Rule 41(b)(2) “had been followed to the letter” Magistrate Gale would not have issued the search warrant on June 13. Rome, 809 F.2d at 670. Therefore, the evidence seized in Oklahoma must be suppressed.