THE STATE OF NEW HAMPSHIRE SUPREME COURT No. 2016-0187 In re Search Warrant for Records from AT&T State s Appeal Pursuant to RSA 606:10 from Judgment of the Second Circuit District Division - Plymouth BRIEF FOR THE APPELLATE DEFENDER AS AMICUS CURIAE Christopher M. Johnson Chief Appellate Defender Appellate Defender Program 10 Ferry Street, Suite 202 Concord, NH 03301 NH Bar #15149 603-224-1236 (15 minutes oral argument)
TABLE OP CONTENTS Page Table of Authorities ii Question Presented 1 Statement of the Case and Pacts 2 Summary of the Argument 3 Argument I. THE CIRCUIT COURT PROPERLY RULED THAT NEW HAMPSHIRE LAW DOES NOT ALLOW IT TO ISSUE A WARRANT AUTHORIZING A SEARCH IN ANOTHER STATE 4 Conclusion 13 1
II (August 18 U.S.C. 2701 9 18 U.S.C. 2702 9 18 U.S.C. 2702(2)(b)(1) & (c)(1) 9 18 U.S.C. 2703 9 18 U.S.C. 2711(3)(B) 10 Statutes Constitutional Provisions 177U.S.214(1900) 4 168 N.H. 117 (2015) 10 Mountain View Park, LLC v. Robson, 23, 2016) 6 486 A.2d 174 (Md. 1985) 5,6 924 N.E.2d 410 (Ohio App. 2009) 4, 5 330 P.3d 680 (Or. App. 2014) 5 162 N.H. 115 (2011) 2,9 - N.H. Lake Forest R.V. Resort, Inc. v. Town of Wakefield, Overby v. Gordon, Cases State v. Intercontinental, Ltd., State v. Jacob, State v. Mello, State v. Rose, Page TABLE OF AUTHORITIES N.H. Constitution, pt. I, art. 7 12
Va. Code Ann. 19.2-70.3 5 N.H. RSA 613:3 8 N.H. RSA ch. 595-A 7 N.H. RSA 490-F:2 3, 7, 8 Mass. Qen. Laws 276 1(2016) 8 Fla. Stat. 92.605(2)(d) 9 Fla Stat. 92.605(2)(b) 8 Ohio Rev. Code Ann. 2933.21 (Lexis/Nexis 2016) 8 Minn. Stat. 626.18(2) 5 Cal. Penal Code 1524.2(b)(1). 5 111
QUESTION PRESENTED Whether the Circuit Court correctly ruled that New Hampshire law does not allow it to issue a warrant authorizing a search in another State.* * Citations to the record are as follows: A refers to the Appendix filed with the State s brief; SB refers to the State s brief. 1
STATEMENT OF THE CASE AND THE FACTS In February 2016, an Ashland police officer applied to the Second Circuit Court, District Division (Plymouth) for a search warrant seeking cell phone records held by AT&T. Al. The application identified CT Corporation System, a Concord-based business, as the local registered agent for AT&T. Al. The search would take place, though, at an AT&T facility in Florida. The court (Rappa, J.) denied the application, citing State v. Mello, 162 N.H. 115 (2011), for the proposition that the court lacked the authority to issue a warrant for an out-ofstate search. Al. The court subsequently received an unsigned memorandum of law filed by the Ashland police, arguing that the court had the authority to issue the warrant. A4-A9. By a written order, the court again denied the request for the warrant, while encouraging the State to appeal to this Court. Al-A3. The State filed a Notice of Appeal, raising the issue of a New Hampshire court s authority to issue a search warrant under these circumstances. 2
SUMMARY OF THE ARGUMENT This case raises the question of whether New Hampshire law authorizes New Hampshire courts to issue search warrants that will be executed out-ofstate. This Court must affirm the Circuit Court s ruling, because New Hampshire law does not empower New Hampshire courts to issue extraterritorial search warrants. In order for a court in an issuing state to authorize a search in a host state, two conditions must prevail. First, the issuing state (here, New Hampshire) must have a law allowing its courts to issue warrants authorizing searches in other jurisdictions. Second, the host state (here, Florida) must have a law permitting searches on the authority of out-of-state warrants. Though the second condition is met, the first is not. RSA 490-F:2 limits the Circuit Court s territorial jurisdiction by providing that the circuit court shall be a court of record with statewide jurisdiction. (Emphasis added). Had the legislature intended the Circuit Court to have authority in other states in certain matters such as the issuance of search warrants, it would not have drawn the court s jurisdictional line at New Hampshire s borders. 3
4 Hampshire law does not empower New Hampshire courts to issue warrants authorizing searches in other states. Courts have long recognized the principle that every state possesses persons and property without its territory. The several states are of equal can extend its process beyond its territory so as to subject either persons or That principle applies to search warrants. Crossing state lines by subject to search and seizure crosses [the] constitutional line... State v. Jacob, 924 N.E.2d 410, 415 (Ohio App. 2009). 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 property to its decisions. Id. at 223. exclusive jurisdiction and sovereignty over persons and property within its Ashland police. SB 3. This Court must reject the State s argument because New territory. Overby v. Gordon, 177 U.S. 214, 222 (1900). A corollary of that dignity and authority, and the independence of one implies the exclusion of power from all others. Id. As a result, no tribunal established by [one State] principle is that no state can exercise direct jurisdiction and authority over IN ANOTHER STATE. DOES NOT ALLOW IT TO ISSUE A WARRANT AUTHORIZING A SEARCH The State contends that a Florida statute effectively confers jurisdiction on New Hampshire courts to issue the search warrant requested by the allowing an Ohio court to determine when California citizens and property are I. THE CIRCUIT COURT PROPERLY RULED THAT NEW HAMPSHIRE LAW
of their courts to determine the consequences of a failure to follow those laws. Id. at 4 15-16. Of course, a State may choose to permit a court in another state (the issuing state ) to issue warrants authorizing a search in it, the host state. Florida s statute gives such permission. The fact that Florida is prepared to permit searches on the authority of out-of-state warrants, though, does not answer the question of whether New Hampshire law allows New Hampshire courts to issue them. In order for a court in an issuing state to authorize a search in a host state, two conditions must prevail. First, the issuing state must have a law allowing its courts to issue warrants authorizing searches in other jurisdictions. Some states have such laws. See, Cal. Penal Code 1524.2(b)(1); Minn. Stat. 626.18(2); Va. Code Ann. 19.2-70.3; see also State v. Rose, 330 P.3d 680, 684-86 (Or. App. 2014) (construing Oregon statute as intending to allow Oregon courts to issue warrants authorizing searches in other states). Second, the host state must have a law permitting searches on the authority of out-of-state warrants. Though the second condition is met, the first is not. As Maryland s highest court has noted, [s]earch warrants were recognized at common law; however, their use... was limited to searching for stolen property. State v. Intercontinental, Ltd., 486 A.2d 174, 176 (Md. 1985). In order for a court to authorize a law officer to conduct a search for items other than stolen property, therefore, jsjtatutoiy authority was generally 5
Id. The Court construes all parts of a statute together to effectuate its overall will consider legislative history only if the statutory language is ambiguous. 14. 6 held by AT&T. This case therefore poses first a question of New Hampshire law: does a New Hampshire statute allow New Hampshire courts to authorize a the intent of the legislature as expressed in the words of the statute considered authority to issue the requested extra-territorial warrant seeking phone records warrants for searches that take place in another state. The State contends that On appeal, this Court s review on questions of statutory interpretation is de statute itself, and, if possible, construe[sj that language according to its plain (August 23, 2016) (slip op. at 4). The Court looks first to the language of the search in another state? and ordinary meaning. Id. The Court will not consider what the legislature purpose and avoid an absurd or unjust result. Id. Furthermore, [the Courti required. Id. By the same logic, a New Hampshire court requires statutory as a whole. Lake Forest R.V. Resort, Inc. v. Town of Wakefield, might have said or add language that the legislature did not see fit to include. N.H. however, does not constitute an authorization. executed in other states. SB 4, 5 n.3, 11. The absence of a prohibition, prohibit New Hampshire courts from issuing search warrants that will be no such statute is necessary because New Hampshire law does not expressly No New Hampshire statute authorizes New Hampshire courts to issue novo. Id. at 3-4. [n matters of statutory interpretation, [this Court isj the final arbiter of
issue the warrant here depends on Florida law. New Hampshire police, in court to issue a search warrant. SB 4. Neither, however, does the statute answer to the question of the extraterritorial authority of the Circuit Court must reject that argument. jurisdiction, New Hampshire law contains the same restriction that In effect, on the State s view, the authority of a New Hampshire court to to issue them, must ascertain whether the contemplated host state would allow Because of that statutory limit on the Circuit Court s territorial drawn the court s jurisdictional line at New Hampshire s borders. certain matters, such as the issuance of search warrants, it would not have legislature intended the Circuit Court to have authority in other states in court of record with statewide jurisdiction. (Emphasis added). Had the limit on the court s jurisdiction in providing that the circuit court shall be a Circuit Court s subject-matter jurisdiction, that statute does enact a territorial Contrary to the State s argument, SB 5, that RSA 490-F:2 limits only the must be sought, then, in that court s general jurisdictional statute, RSA 490- expressly authorize the issuance of extra-territorial search warrants. An issuance of search warrants, contains no territorial limit on the authority of a The State points out that RSA ch. 595-A, the statute governing the a search on the authority of warrants issued by out-of-state courts. This Court F:2. 7 Massachusetts law imposes through the statute, cited by the State, SB 4, that seeking such warrants, and New Hampshire magistrates, in deciding whether
8 When the legislature intends to allow New Hampshire courts to exercise Florida s 92.605(2)(b). That statute empowers Florida courts to issue extra In order for New Hampshire courts to have authority to issue extra by Florida law, New Hampshire law must contain a provision analogous to Witness from Another State summoned to testify in this State, authorizes a statute to the Court s statewide jurisdiction. RSA 490-F:2. that reference in a search warrant statute to the boundaries of the 1(2016); see also Ohio Rev. Code Ann. 2933.21 (Lexis/Nexis 2016) (similarly within the commonwealth and territorial waters thereof. Mass. Gen. Laws 276 referring to the authority of a court within his jurisdiction to issue search Commonwealth. New Hampshire law bars the issuance of extraterritorial confers that authority. For example, the New Hampshire statute that enables authorizes Massachusetts s courts to issue warrants for searches anywhere authority beyond the State s borders, a New Hampshire statute expressly warrants). Massachusetts law bars the issuance of extraterritorial warrants by search warrants by the reference in the Circuit Court s general jurisdictional outside the state expressly provides for that authority. RSA 613:3, captioned witness. RSA 6 13:3, I. our courts to cooperate with out-of-state courts in summoning witnesses from judge of a New Hampshire court to issue a certificate under the seal of the territorial search warrants and thus avail themselves of the opportunity offered territorial warrants by requiring corporations located outside Florida to honor a court stating the facts necessary to justify summoning the out-of-state
warrant when properly served by a Florida court or other applicant. The statute further establishes a procedure by which the non-florida corporation can seek to quash a subpoena or warrant it believes to have been issued improperly. l1la. Stat. 92.605(2)(d). Until our legislature endows them with similar authority, New Hampshire courts do not possess it. State v. Mello, 162 N.H. 115 (2011), merely confirms that understanding of the pertinent law. There, this Court noted that the defense had challenged, and the State had conceded, the invalidity of a search warrant purporting to authorize an out-of-state search by New Hampshire police officers. Id. at 117-18. In the present case, the State argues the point that in Mello it was willing to concede. Nothing in the relevant Federal statutes, 18 U.S.C. 2701 et seq., alters New Hampshire law governing the territorial jurisdiction of the Circuit Court. 18 U.S.C. 2702 enacts a prohibition on the voluntary disclosure of customer communications or records by entities such as AT&T. AT&T thus would violate the Federal law if it chose, upon receiving a mere request, to hand over to the police any customer s records. However, when statutory conditions specified in 2703 are met, such companies must provide requested records. See 18 U.S.C. 2702(2)(b)(l) & (c)(1). 18 U.S.C. 2703 describes those circumstances in which AT&T and similar entities are required to divulge customer records to the police. For example, 2703(a) provides that a governmental entity may require the disclosure of certain records pursuant to a warrant issued... using State 9
[tjo the extent that the plaintiff asserts that public 10 Finally, the State advances certain policy considerations that, in its view, show that it would be convenient or preferable if New Hampshire courts could fonvard the requisite information to local authorities in the foreign jurisdiction policy considerations... require us to reverse the trial Moreover, even if this Court were the proper venue for addressing weigh in favor of empowering New Hampshire courts to issue extraterritorial search warrants. 18 U.S.C. 271 1(3)(B). While those provisions may be nothing in the Federal statute requires States to invest their courts with court of competent jurisdiction is defined as including a court of general criminal jurisdiction of a State authorized by the law of that State to issue court s decision, this argument is made in the wrong forum. Although we appreciate the importance of such Mountain View Park, LLC v. Robson, 168 N.H. 117, 121 (2015) (citations and of addressing the plaintiff s concerns. for the legislature, and we therefore leave to it the task warrant procedures... by a court of competent jurisdiction. The phrase consistent with the extra-territorial warrant procedure desired by the State, authority to issue extra-territorial search warrants. issue extra-territorial search warrants. SB 8-9. As this Court has noted, considerations, matters of public policy are reserved matters of public policy, the relevant policy considerations do not necessarily though, quotation marks omitted). search warrants. As the State acknowledges, New Hampshire police can and ask them to get the warrant, seize the information, and send the
11 location in another State. seized evidence could be excluded. SB 9. The State points to nothing to more substantial problem in the electronic communications setting. warrant in the foreign jurisdiction differ from those in New Hampshire, the communications searches, and there is no reason why it should present any police lose control over the warrant, and if it is defective or the standards for a The State suggests that a flaw in that procedure is that New Hampshire when, in other contexts, New Hampshire police want to search a private Florida police, motivated by the desire to conserve their own resources, initially Florida police, if they have any feeling of law enforcement solidarity, would that New Hampshire law does not authorize our courts to issue such warrants, with respect to Florida-based communications companies. SB 9 n.6. Perhaps would direct out-of-state police to their own courts. However, upon learning given that Florida law allows out-of-state courts to issue valid search warrants In a related vein, in a footnote, the State speculates that Florida law courts. SB 9. Florida, however, has obtained the benefits of hosting these large courts to issue extra-territorial warrants would relieve a burden on the Florida corporations, and one can reasonably doubt that processing search warrant applications imposes a burden greater than Florida courts can bear. enforcement officials might refuse to cooperate with New Hampshire police, The State further argues that investing authority in New Hampshire information back to New Hampshire. SB 8. That is presumably what happens indicate, though, that this has proved an insoluble problem in non-electronic
12 United States of America in congress assembled ). Our legislature accordingly may not find appealing the idea of allowing courts in other states, without any exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the same favor to courts in other states, with respect to similar searches in New issue extra-territorial search warrants, it would seem only fair to extend the Hampshire. The political culture of New Hampshire, though; contains a strong element of pride in our sovereignty. See, mg., N.H. Const. pt. I, art. 7 ( The Moreover, if New Hampshire enacted a statute allowing our courts to people of this state have the sole and exclusive right of governing themselves as affirm the ruling of the Circuit Court. consider and decide. Because New Hampshire law does not presently allow New Hampshire courts to issue extra-territorial search warrants, this Court should police to conduct a search in New Hampshire. In the end, these are matters for the New Hampshire legislature to need of consultation with a New Hampshire court, to authorize out-of-state New Hampshire-drafted search warrant application to a Florida court. a free, sovereign, and independent state; and do, and forever hereafter shall, assist New Hampshire investigators in the relatively simple task of forwarding a
13 DATED: October 12, 2016 postage prepaid, to: Sean R. Locke, Esq. Criminal Bureau Concord, NH 03301 The appealed decision is in writing and is appended to the State s brief. 33 Capitol Street New Hampshire Attorney General s Office Undersigned counsel requests fifteen minutes of oral argument before a requests that this Court affirm the ruling of the Circuit Court. Assistant Attorney General I hereby certify that two copies of the foregoing Brief have been mailed, WHEREFORE, the Appellate Defender, as arnicus curiae, respectfully CONCLUSION full panel. CERTIFICATE OF SERVICE Christopher M. Johnson Concord, NH 03301 10 Ferry Street, Suite 202 Chief Appellate Defender Appellate Defender Program ChriIpher M. JohrsSn, #15149 Bk KV Respectfully submitted,