NH: No constitutional prohibition of state court issuing SW for records stored out of state

There is no constitutional prohibition from a state court issuing a search warrant for cell phone records of a provider doing business in the state even when the records are physically located in another state. Territoriality in the statute applies to the offense, not the object of the search. In re Search Warrant for Records from AT&T, 2017 N.H. LEXIS 167 (June 9, 2017):

We first note that the Secured Communications Act (SCA), see 18 U.S.C. §§ 2701 et seq. (2008 & Supp. 2017), provides relevant background to our analysis.

The SCA was enacted as part of the Electronic Communications Privacy Act of 1986, with the dual purpose of protecting the privacy of users of electronic communications by criminalizing the unauthorized access of the contents and transactional records of stored wire and electronic communications, while providing an avenue for law enforcement entities to compel a provider of electronic communication services to disclose the contents and records of electronic communications.

State v. Rose, 264 Ore. App. 95, 330 P.3d 680, 684 (Or. Ct. App. 2014) (quotation and brackets omitted). The SCA outlines the requisite procedures for obtaining certain stored data from “provider[s] of electronic communication service[s].” See 18 U.S.C. § 2703(a) (2012) (amended 2016, effective on date signed by the president). The parties appear to agree that AT&T is such a provider. One option available to governmental entities under section 2703(a) of the SCA is to obtain a “warrant … issued using State warrant procedures … by a court of competent jurisdiction.” 18 U.S.C. § 2703(a). The SCA’s definition of “court of competent jurisdiction” includes “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.” 18 U.S.C. § 2711(3) (2012) (quotation omitted). “The SCA does not expressly address whether a state court can issue a search warrant for … content located in another state.” Rose, 330 P.3d at 685. Thus, we look to New Hampshire law to determine whether an extraterritorial warrant can issue in this case.

NH(4)[4] New Hampshire’s search warrant statute, RSA 595-A:1 (2001), does not expressly limit the circuit court’s authority to issue search warrants based upon the location of the property or article sought. The statute provides, in pertinent part, that “[a] search warrant … may be issued by any justice, associate justice or special justice of the … [circuit] or superior courts.” Id.; see RSA 490-F:18. By its plain language, RSA 595-A:1 demonstrates that the circuit court has the authority to issue search warrants. Further, as the amicus appears to recognize, the statute contains no language placing a territorial limit on this authority. See RSA 595-A:1; RSA 490-F:18; cf. Mass. Gen. Laws Ann. ch. 276 § 1 (West 2014) (authorizing courts to issue search warrants for property “concealed … anywhere within the commonwealth and territorial waters thereof”). We, therefore, conclude that the legislature intended to grant the circuit court authority to issue extraterritorial search warrants to the extent constitutionally permissible. Cf. Computac, Inc. v. Dixie News Co., 124 N.H. 350, 355, 469 A.2d 1345 (1983) (noting this court has interpreted long-arm statute as “coextensive with constitutional limitations”). This interpretation is consistent with the legislature’s definition of the territorial jurisdiction of our Criminal Code. See RSA 625:4 (permitting conviction for offenses under laws of New Hampshire in certain circumstances although underlying conduct occurred out of state). Had the legislature wished to place more restrictive limitations on the circuit court’s authority, it could have done so. We will not add language that the legislature did not see fit to include. Bank of N.Y. Mellon, 169 N.H. at 204.

We find no constitutional limitation to the circuit court’s authority in this case. In its brief, the amicus appears to argue that the issuance of extraterritorial search warrants runs afoul of principles of state sovereignty. See Overby v. Gordon, 177 U.S. 214, 222, 20 S. Ct. 603, 44 L. Ed. 741 (1900) (“The sovereignty of the State of Georgia and the jurisdiction of its courts, however, did not extend to and embrace property not situated within the territorial jurisdiction of the State.”); State v. Jacob, 185 Ohio App. 3d 408, 2009 Ohio 7048, 924 N.E.2d 410, 415-16 (Ohio Ct. App. 2009) (noting that “[a]llowing one state’s court to determine when property, residences, and residents of another state may be subject to search and seizure would trample the sovereignty of states”). However, it concedes that Florida law “permit[s] searches [for records held by electronic communication service providers] on the authority of out-of-state warrants.” Indeed, Florida law expressly requires “business[es] that provide[ ] electronic communication services” to respond to a “warrant issued by another state” by producing the requested records “as if that … warrant had been issued by a Florida court.” Fla. Stat. § 92.605(3) (2003).