D.C.Cir.: Blatantly violating the jurisdictional requirement of Rule 41(b)(2) is not a mere “technical defect”

Blatantly violating the jurisdictional requirement of Rule 41(b)(2) is not a mere “technical defect.” (Here, it arose in the context of a Title III warrant, too.) A USMJ cannot issue a warrant with no connection to his or her district. United States v. Glover, 2013 U.S. App. LEXIS 22667 (D.C. Cir. November 8, 2013):

To the extent that there is uncertainty over the proper interpretation of the statute, Rule 41 of the Federal Rules of Criminal Procedure, which partially implements the statute, is crystal clear. It states that “a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed.” Fed. R. Crim. P. 41(b)(2) (emphasis added). So, therefore, we have a warrant issued in our case which appears, on its face, to be in violation of the rule (and the statute).

The government’s position regarding Rule 41 is, to put it kindly, rather confusing. Government counsel largely ignores the rule, but implicitly suggests that it is inconsistent with the statute, which, if true, would have presented us with a rather difficult problem. But as we have explained, Rule 41 and Title III are consistent in that they impose the same geographic limitations on warrants to install listening devices.

The government also argues that territorial jurisdiction is not a “core concern” of Title III, and that therefore suppression is not the appropriate remedy for the violation in this case. But, as we explained supra, the Supreme Court has repeatedly made clear that the “core concerns” test is a construction of the term “unlawfully intercepted” in paragraph (i), not paragraph (ii). Even if we thought that an inquiry into the core concerns of the statute were permitted under paragraph (ii), we would, nevertheless, agree with the Fifth Circuit, which recently held that territorial jurisdiction is a core concern of Title III. United States v. North, 728 F.3d 429, 437 (5th Cir. 2013).

Nor do we think that the jurisdictional flaw in the warrant can be excused as a “technical defect.” It is true that several of our sister circuits have declined to hold paragraph (ii) violated because of technical errors. See, e.g., United States v. Moore, 41 F.3d 370, 375 (8th Cir. 1994) (inadvertent failure of magistrate to sign order is a “mere technical defect” not warranting suppression); United States v. Traitz, 871 F.2d 368, 379 (3d Cir. 1989) (inadvertent omission of one page of an order does not render the order insufficient on its face where the order still meets all statutory requirements). Even if we assume that an imperfect authorizing order could be thought facially sufficient, we do not see how a blatant disregard of a district judge’s jurisdictional limitation can be regarded as only “technical.”