Does the Fourth Amendment Allow Extraterritorial State Search Warrants?

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.