Last week, an Ohio appellate court handed down an opinion on a rarely-addressed but increasingly important question: Does the Fourth Amendment allow a state judge to issue a state warrant to search property located outside the state? The case is State v. Jacob, 2009 Ohio 7048, 2009 Ohio App. LEXIS 5903 (2d Dist. December 30, 2009). (Hat tip: Fourth Amendment.com) The decision has some potentially significant implications for Internet warrants, so I wanted to blog a bit about it.
First, the facts, in somewhat simplified form. Jacob, a Californian, stole property from Schulz, an Ohioan. Shulz filed a complaint in Ohio. Eventually, Ohio authorities asked an Ohio state judge for a warrant to search Jacob’s home in California. The Ohio state judge granted the warrant, even though the Ohio warrant statute only allows magistrates to issue warrants to search within the court’s jurisdiction. Ohio authorities faxed the warrant to California state law enforcement authorities, and California authorities executed the warrant at Jacob’s home. The search uncovered the stolen property, leading to Jacob’s arrest in California and extradition to Ohio where he faced criminal charges. Jacob moved to suppress the evidence seized in California on the ground that an Ohio judge has no power to issue a warrant for a search in California:
[A] magistrate who acts beyond the scope of his authority ceases to act as a magistrate for Fourth Amendment purposes. We agree that, in Jacob’s situation, a violation of statutory provisions that a judge can issue a valid search warrant only within his or her court’s jurisdiction is a fundamental violation of Fourth Amendment principles. As Justice Holmes said in a different context in Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 40 S.Ct.182, 64 L.Ed. 319, a line must be drawn somewhere to prevent the Fourth Amendment’s guarantee against unreasonable searches and seizures from becoming no more than a “form of words.” Crossing state lines by allowing an Ohio court to determine when California citizens and property are subject to search and seizure crosses this constitutional line. . . .Allowing 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 to determine the procedures by which a warrant may be issued and executed and of their courts to determine the consequences of a failure to follow those laws.
The Court then dropped a footnote:
We note, for example, that New Jersey does not accept the good faith exception to the warrant requirement, on which the trial court relied in refusing to suppress the evidence discovered in the search of Jacob’s house. See New Jersey v. Novembrino (1987), 105 N.J. 95, 145-158, 519 A.2d 820 (rejecting under State Constitution the federal “good faith” exception to the exclusionary rule for search warrants issued in good faith but without probable cause). Ohio has a reporter’s shield law, some states do not; should such a state be permitted to execute its warrant in Ohio?
The court them ruled that the good faith exception didn’t apply because the jurisdictional flaw was too fundamental a problem to be subject to the good faith exception: “we do not believe that the issuance of a search warrant by a court wholly lacking authority to do so may be ‘cured’ because the officers who obtained and executed the warrant did so in subjective ‘good faith,’ but failed to recognize that the court was without jurisdiction.”
I have a longstanding interest in the territorial limits of search warrants because the issue comes up a lot in Internet cases. It can be hard to know where data in the cloud is located, so a court might issue a warrant in one jurisdiction for data that happens to be stored on a server in another jurisdiction. Also, it turns out that this issue is very rarely litigated: There are a few cases on extraterritorial arrests, but few on extraterritorial warrants. The one case that comes to mind on extraterritorial warrants is State v. Signore, 31 Conn. L. Reptr. 91 (2001), a Connecticut Superior Court case involving a Connecticut warrant faxed to AOL in Virginia; the court held that the evidence should be admitted, although the precise basis of the opinion is quite murky. The Eighth Circuit decided a case involving the Fourth Amendment implications of a search warrant for a Yahoo account in United States v. Bach, 310 F.3d 1063 (8th Cir. 2002), but the extraterritorial question didn’t come up in that case.
In terms of the Jacob case itself, I think the issues are trickier than the court is suggesting. In my view, the notable problem is that foreign state search warrants are not entitled to respect under the Full Faith and Credit clause. See, e.g., Ex Parte Dillon, 29 S.W.2d 236, 238 (Mo. Ct. App. 1930). As a result, I’m not sure that the warrant counts as a “warrant” in California for Fourth Amendment purposes. This is a pretty tricky issue, I think: If a warrant is an order permitting conduct instead of requiring it, and yet the order permiiting conduct is not entitled to full faith and credit, does that mean the order cannot permit what it purports to permit? If that’s right, the problem is not so much that the Ohio judge issued the warrant to search out of state property as much as that the California officer conducted a search that may have been de jure “warrantless” because the warrant was not binding where it was executed. Tricky issue, I think: Off the top of my head, I’m not entirely sure what the right answer is.
In terms of consequences, my primary question is how this case could apply to Internet account warrants. (Let’s assume we’re only dealing with state warrants; as the court notes, federal warrants could be a different story.) My understanding is that it is routine for state investigators to get state warrants and then fax them to out of state ISPs. ISPs can chose to comply with the warrant even though they are not required to do so under the full faith and credit clause. But if they do so, they send back the account information based on the out of state warrant. Does the Jacobcase suggest that this procedure is unconstitutional, and that a warrant where the data is located is required? It might. I suppose the contrary argument to make is that Internet warrants are different thanks to ECPA; as the Bach case suggests, perhaps the reasonableness of executing a warrant for remote electronic evidence is just different from the reasonableness of executing a warrant for a physical place like a home or apartment. Maybe. Again, I’m not entirely sure.
ShelbyC says:
Does the fact that California cops performed an illegal search prevent Ohio from using the evidence discovered?
January 8, 2010, 5:43 pmMeredith M. says:
Could there be a work-around, like forwarding the warrant to a California judge who approves/reissues it? The question still remains as to what could California law enforcement do if the judge declines to do so, but it seems like this would be an easy way to get around the problem.
January 8, 2010, 5:56 pmKirk Parker says:
Please help the uninformed among us, with a brief outline of what’s supposed to happen in cases like this.
January 8, 2010, 6:02 pmAnderson says:
Meredith’s suggestion is what happens with subpoenas for out-of-state materials — one sends “letters rogatory” to the jurisdiction where the stuff is, and out of comity that court (you hope) honors the request.
Being largely innocent of crim pro, however, I have no clue whether they can work for warrants. Given the absence of any such authority in the Westlaw ALLSTATES database, I suspect not.
January 8, 2010, 6:02 pmOrin Kerr says:
Kirk,
One way to make sure it’s all on the up-and-up is to call up the California folks, tell them about the case, and have them get a California warrant for it based on the probable cause of having heard about the case from the Ohio officials.
For an example of this happening in the internet setting — over and over again — see here.
January 8, 2010, 6:09 pmArthurKirkland says:
A law enforcement officer or a judge not knowing how to handle an interstate search warrant strikes me as similar to a football coach asking whether why the referees periodically move the ball to a hashmark.
January 8, 2010, 6:25 pmcave16 says:
If the Ohio warrant were an arrest warrant executed in California, would the analysis be different?
January 8, 2010, 6:34 pmdisintelligentsia says:
It seems to me that it would be analogous to an extradition based on an out-of-state arrest warrant. However, since the subject here is the search and object of the search would have been found already if the search is conducted prior to the hearing that hearing would have to occur in state which is the locus of the search prior to the search being conducted. A judge in Ohio is not a judge in California and giving full-faith to a search warrant would diminish the concepts of a court’s jurisdictional limits and the sovereignty of states under federalism .
January 8, 2010, 7:07 pmKirk Parker says:
In other words, it’s a police-to-police contact, and then the (remote) police initiate their own warrant request (if they concur that they’ll pursue it)?
OK, thanks!
January 8, 2010, 7:11 pmMike Kimball says:
The idea of the internet case is interesting, but in reality the language in ECPA and the case law makes it pretty easy for law enforcement agencies to obtain electronic communications from an ISP.
January 8, 2010, 8:16 pmFantasiaWHT says:
How is this a federal fourth amendment question? Federal fourth amendment jurisprudence presents a floor, and states can choose to provide greater protections than the federal government does. Assuming the more permissive state is at or above that floor, how does the federal 4A rule have any bearing on whether a warrant from the more permissive state is valid in more restrictive state?
January 8, 2010, 8:49 pmcave16 says:
dis and Kirk, thanks.
It has been 20 years+, and I am sure law has changed, but if memory serves, when we ran a data base search and found an outstanding out-of-state warrant, we would call the jurisdiction where the warrant issued to see if they would extradite and confirm via teletype. If yes, we arrested. If no, we didn’t (unless there were local charges.)
My memory has slipped its clutch, so I may be remembering things that never happened.
Nevertheless, I do enjoy the conspirators at VC.
WRT the OP, I have a difficult time justifying execution of an out-of-state search warrant. From my memory, doing so would have been outside the scope of my legal authority as a Cali LEO. But times change and memories fade.
January 8, 2010, 8:51 pmBLJ says:
I think the proper mechanism is the one discussed by Anderson whereby State A will authorize a subpoena to be issued against a person for testimony or documents sought by a litigant in State B. The State B litigant gets a court order authorizing the issuance of papers acceptable to State A (commissions, letters rogatory, etc.) But both States A and B need to have laws on the books authorizing this to occur and apparently California and Ohio do not. I don’t think there would be a constitutional problem for a state to pass a law authorizing its courts to issue search warrants upon a proper showing by someone in another state (which still requires that the other state authorize the warrants to be issued in the first place) – but until that happens, a judge can’t just make it up on the fly.
January 8, 2010, 8:53 pmDuffy Pratt says:
Maybe I’m a bit off base here, but it seems to me that the question isn’t a Fourth Amendment question, but a more general question of the territorial limits on a state’s power. If a state acts where it simply has no authority, it seems to me that the violation would be a due process violation and not a fourth amendment violation.
January 8, 2010, 9:59 pmJohnF says:
While there may be no full faith and credit requirement to follow the warrant from one state in another state, it does not follow that the officers of the other state are not permitted to follow it if they choose to. There is nothing in the literal wording of the fourth amendment to prevent this, as it just refers to protection from “unreasonable” searches and to “warrants” without reference to where the warrants come from.
What might be of interest is what California’s constitution and laws say about searches of its citizens’ homes.
January 8, 2010, 11:12 pmwolfefan says:
Hi cave16 –
I work in teletype now – our procedure is almost exactly what yours was, except that we don’t call; we do the whole thing by teletype so we have a paper trail. Things haven’t changed all that much, and your memory has all cogs in working order! :)
January 9, 2010, 2:30 amScottB says:
The Leon discussion by this court was ridiculous- good faith appears to mean “no mistakes.” I’ve written around 100 search warrants, served several hundred, and regularly read 4th Amendment case law. In fact, I’ve served a dozen or so search warrants on cell phone companies located out of state from me. Obviously, it was for evidence of a crime in my jurisdiction, but I never had any problems with admissibility of that evidence. I’ve served out of state arrest warrants as well. I’ve never encountered this situation, in eleven years in law enforcement, and I imagine I would have made the same mistake these officers made.
I will make the bold prediction that case will be reversed (again) at some point, after a more reasonable Leon analysis.
January 9, 2010, 4:25 amLaura(southernxyl) says:
(Am I the only person who keeps seeing “extraterrestrial” in the post header?)
January 9, 2010, 10:45 amColoComment says:
Yesterday, I linked this post in a message to my brother, who is a long-serving county asst. prosecutor in SE Michigan, just to see if he had any interesting info to contribute. He [finally] got back to me and here is his response:
Internet service providers, cell phone companies, credit card companies and the like often only like to have something in their file that looks official. So if I, in Michigan, draft a search warrant (get a judge here to sign it, which I will come back to) or issue a subpoena and send it (or a police agency sends it), I will usually get my records. Pre-charging issuance of a subpoena is not authorized in Michigan, although some states have that mechanism. In any event, state-issued search warrants and subpoenas are not binding in another state, but the recipient can choose to honor it. If I wanted to search a physical place in another state I would draft the search warrant here, find a law enforcement agency willing to help, either police or prosecution, in the other jurisdiction, and we’re good to go. Etiquette would dictate that I would not ask the other jurisdiction to draft the warrant because they don’t give a hoot about my case.
When I want records from, say, Bank of America, even though those records are in North Carolina, a Michigan judge will sign such a warrant because they do business here and the records are accessible here, (even though I might send this search warrant to a records division in NC). If I want records from Yahoo, which has no bricks and mortar here in Michigan, I find their resident agent on the State of Michigan, Corporate Division look-up and include that on my warrant (i.e., Place to Searched: Yahoo, address California, whose Michigan Resident Agent is….) My judges (and others) find that is enough of a connection to Michigan to permit them to sign a SW. I will still send the warrant to their records division in whatever state.
If a cell phone company or ISP is not located in Michigan and has no resident agent, then I have to set out to find that local law enforcement agency to help serve them where they are located physically. Except – 4 or 5 states (California, Minnesota, Florida, and I think Massachusetts and Washington) have statutes that say – if you do business in this state (i.e., California) you must honor search warrants for records from other states. I have not had to use this but I have the statute citations ready to insert in a search warrant in the event it is needed.
I think the Ohio case was decided correctly. It is essentially a “good faith exception” issue but that is carrying it too far when it is jurisdictional. The classic good faith exception is when one police officer puts 234 Main Street in the warrant, but it really is 324 and then the warrant is served at 234 – and then finds drugs, oops.
January 9, 2010, 5:13 pminevitable says:
What of the inevitable discovery doctrine: had the California cops simply taken the information contained in the Ohio warrant to a California judge, there was ample probable cause for a California warrant.
I’m also troubled the refusal to apply the good faith doctrine. California applies the “good faith” doctrine- the evidence would almost certainly have been admissible in a California court. It is odd to strike the search because it didn’t apply with California law- but then to refuse to apply the California exception that would’ve made it admissible.
More generally, what the hell does it really mean to say that a magistrate signing off on an extra-territorial search “ceases to act as a magistrate for Fourth Amendment purposes.”
That is just bloviating. Under such a formula, you could point to any action you didn’t like and say he had “ceased to act as a magistrate”– that is, “for Fourth Amendment purposes.”
While the magistrate was mistaken as to whether he could sign the warrant, nobody disputes that there was in fact PC to search.
The California cops, meanwhile, may not have been schooled in the niceties of the Full Faith and Credit clause. But they had a document, unquestionably issued by the court of another state, which on its face stated probable cause to perform a search. And as stated before, if they’d taken the information contained in it to a California judge, they’d have gotten a warrant with no problems.
Refusing to apply either the good-faith, or inevitable discovery doctrines here, is just baffling.
January 9, 2010, 8:09 pmChris Travers says:
I am pretty sure a federal magistrate somewhere CAN issue a search warrant regarding the International Space Station…..
January 9, 2010, 8:42 pmShelbyC says:
No.
January 9, 2010, 9:34 pmRich Rostrom says:
“a warrant is an order permitting conduct instead of requiring it”
No, a warrant is an order requiring conduct: to wit, requiring the subject of a search or arrest to comply with law enforcement’s demands: i.e. to allow the police to enter and search a premises, to produce required documents, or to submit to arrest. Arguably, citizens are in general required to cooperate, or in any case debarred from resisting such actions, but a warrant is an explicit order to submit or cooperate.
Making out-of-state warrants automatically enforceable would be a huge expansion of authority.
Incidentally, if out-of-state warrants were valid, it seems to me that could open up truly amazing possibilities for “judge shopping”. Has anyone considered this?
January 9, 2010, 10:51 pmDave N. says:
The question that went through my mind is how a defendant who objected to evidence provided by an ISP or any other out-of-state company would even have standing to complain?
January 10, 2010, 12:35 aminevitable says:
Dave N,
some states have broader standing doctrines to contest the legality of searches– in my state, if evidence against me is gathered via an illegal search of you, I can have the evidence suppressed.
January 10, 2010, 11:01 amFaxing search warrants to California… — Ohio Tech Law says:
[...] the issue of a trans-jurisdictional warrant issued in Ohio, and faxed to California (Hat tip: Orin Kerr). This presents concerns for police departments and prosecutors, as well as companies who might [...]
January 10, 2010, 3:04 pmMonday Morning Jumpstart | a public defender says:
[...] Kerr analyzes whether the 4th Amendment permits execution of warrants in a different [...]
January 11, 2010, 7:47 amParatrooperJJ says:
Actually in most cases you must get an instate warrant for records. For example, AOL is based in VA, they require a VA warrant to provide and information to out of state agencies.
January 11, 2010, 10:12 amTim says:
That’s what I was thinking as well. If the court lacks jurisdiction, it cannot make any binding judgment. I wonder how the case ever reached the Fourth Amendment question, which strikes me as unnecessary.
Perhaps there is a legal basis for this, however, because it is possible to execute a judgment beyond a state’s territory and to serve persons who are physically located in other states. Such would presumably explain the court’s answering of the 4A question.
I find it fascinating that Professor Kerr’s posts always seem to strike me as interesting, even when I disagree with him.
January 11, 2010, 3:58 pmAshley says:
Can anybody help me found out where I can find the trail court case for the case of City of Ontario California vs Quon? Its heading to the Supreme Court in March please email me with search areas.
February 23, 2010, 9:28 pmDiane says:
What if a legal search warrant is issued and executed in Nebraska, but the Nebraska police bring along an out-of-state (Texas) sheriff?
The alleged crime occurred both in Nebraska and Texas; the person on the warrant lives in Nebraska, but had lived briefly in Texas.
Nebraska police officers found no evidence of a crime.
Immediately, warrants were issued in Texas. Now the items that were legally seized in Nebraska are in Texas, being tested/investigated again.
July 20, 2010, 2:46 pm