D.Kan.: Where USMJ lacks jurisdiction over subject of search or crime, SW void and no GFE

A Maryland USMJ could not issue a search warrant for email where there was no indication that the child pornography offense occurred in that jurisdiction. The email user was in another state as was gmail. Therefore, there was a lack of jurisdiction, and the search warrant was void from its inception. That being the case, the good faith exception could not apply. United States v. Barber, 2016 U.S. Dist. LEXIS 56282 (D.Kan. April 27, 2016):

Rule 41(b) v. The Stored Communications Act

Next, the court considers which standards to apply to the second warrant: those of Rule 41(b) or those of the Stored Communications Act (“SCA”). Defendant is correct that if Fed. R. Crim. P. 41(b) were the only authority governing the issuance of the warrant, then this motion would be fairly easily resolved: The magistrate judge would have exceeded his authority by issuing a warrant for a search outside his district. Rule 41(b) gives a magistrate judge authority to issue a warrant for a search and seizure of property located within the district. The Maryland judge’s act in issuing a warrant for execution in California would exceed that authority. But here, the SCA may apply to extend the jurisdiction of the issuing judge. 18 U.S.C. § 2703(a) provides:

A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure … by a court of competent jurisdiction.

“A court of competent jurisdiction” is defined as “any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals that has jurisdiction over the offense being investigated.” 18 U.S.C. § 2711(3)(A)(i). This means that when the SCA applies, a magistrate judge with jurisdiction over the offense being investigated can issue a warrant to be executed outside of that judge’s ordinary jurisdiction, using the procedures of Rule 41, but not constrained by the jurisdictional limitation of Rule 41(b).

The problem with utilizing the SCA to provide the jurisdiction the Maryland magistrate judge needed to issue the second warrant is this: The government presented no evidence that the offense being investigated occurred in Maryland. Courts that have interpreted the language “jurisdiction over the offense being investigated” have held that Congress intended it to mean territorial jurisdiction over the offense—not general jurisdiction over all federal criminal offenses. See, e.g., United States v. Lopez-Acosta, No. 13-CR-275, 2014 WL 3828225, at *3 (D. Neb. Aug. 4, 2014); In re Search of Yahoo, Inc., No. 07-3194-MB, 2007 WL 1530071, at *5 (D. Ariz. May 21, 2007); In re Search Warrant, No. 05-MC-168-Orl-31-JGG, 2005 WL 3844032, at *5 (M.D. Fla. Feb. 13, 2006). The court has reviewed the rationale of these cases and agrees that the statute refers to territorial jurisdiction. The Maryland magistrate judge therefore lacked jurisdiction to issue the second warrant because the offense being investigated did not take place in Maryland.

Impact of the Lack of Jurisdiction

The government argues that any violation of the SCA does not require suppression because the SCA does not provide for a remedy of exclusion of evidence. The SCA provides that fines are the only remedies for nonconstitutional violations. 18 U.S.C. § 2708. But it does not address constitutional violations. The court must therefore determine whether a constitutional violation was involved.

Courts have found that warrants issued without jurisdiction are void from their inception. See, e.g., United States v. Baker, 894 F.2d 1144, 1147-48 (10th Cir. 1990). A warrant that is void from its inception is no warrant at all. See United States v. Krueger, 809 F.3d 1109, 1124-25 (10th Cir. 2015) (Gorsuch, J., concurring); see also Groh v. Ramirez, 540 U.S. 551, 559 (2004) (“[T]he warrant was so obviously deficient that we must regard the search as ‘warrantless’ within the meaning of our case law.”). Using this logic, the search of defendant’s email account was the equivalent of a warrantless search. Although all warrantless searches do not violate the Fourth Amendment, the government has not argued that it was reasonable to engage in a warrantless search in this instance. The Fourth Amendment prohibits unreasonable searches. The court therefore finds that the search of defendant’s email account was a constitutional violation. See Warshak, 631 F.3d at 288 (“The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.”). Suppression is a potential remedy for the violation.

Good Faith Exception

Having decided that the search of defendant’s email account was essentially a warrantless search that could result in suppression of the evidence, the court now turns to whether the good faith exception applies in this instance. The first question is whether the good faith exception applies at all to warrants that are invalid from their inception.

. . .

Relying on the rationale in these cases, the court determines that the good faith exception applies only to evidence seized under a once-valid warrant that was subsequently invalidated—not evidence seized pursuant to a warrant that was void at its inception. In this instance, there was no warrant at all. Suppressing the evidence under these circumstances serves the goal of deterring police from obtaining warrants from judges who lack jurisdiction to issue them. Special Agent O’Donnell should have sought a warrant where the information was stored—in the Northern District of California. See Fed. R. Crim. P. 41(b) (“[A] magistrate judge with authority in the district … has authority to issue a warrant to search for and seize a person or property located within the district[.]“). The court understands that when Special Agent O’Donnell sought the warrant, he did not know what court had territorial jurisdiction over the crime. But Special Agent O’Donnell did know where the information was stored. The proper procedure would have been to seek a warrant there.

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