IN RE SEARCH WARRANT FOR RECORDS FROM AT&T
No. 2016-0187
THE SUPREME COURT OF NEW HAMPSHIRE
June 9, 2017
2d Circuit Court-Plymouth District Division
NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court‘s home page is: http://www.courts.state.nh.us/supreme.
Argued: January 17, 2017
Opinion Issued: June 9, 2017
Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the New Hampshire Appellate Defender Program, as amicus curiae.
I. Factual Background
The following facts are gleaned from the record before us and are not materially disputed by the parties. The State represents that AT&T is a telecommunications company that provides, among other things, mobile telephone services to the public, that AT&T has business operations and a registered agent in New Hampshire, and that the company‘s custodian of records is located in Florida.
In February 2016, an Ashland police officer applied for a search warrant for certain cellular telephone records at an AT&T facility in Florida. The State sought these records in connection with a criminal investigation being conducted by the Ashland Police Department. Citing our decision in State v. Mello, 162 N.H. 115 (2011), the circuit court denied the State‘s application, reasoning that it “ha[d] no authority to issue a warrant against a foreign corporation.”
The State thereafter filed a memorandum of law, resubmitting the warrant application and seeking reconsideration of the circuit court‘s order. In its memorandum, the State argued that “[u]nder Florida law, [AT&T] is required to treat an out-of-state subpoena or warrant as if it were issued by a Florida Court.” It also argued, among other things, that our decision in Mello “d[id] not preclude the issuance of the warrant.” (Bolding omitted.)
The circuit court denied the State‘s renewed application, again relying upon our decision in Mello. Although it recognized that the language from Mello it relied upon was dicta, it ruled that it was “[n]evertheless . . . obligated to follow directives from the Supreme Court.” This appeal followed, presenting the question whether the circuit court has the authority to issue a search warrant authorizing the search and seizure of certain records held out of state.
II. Analysis
Before addressing the substance of the parties’ claims, we provide, for context, a brief overview of territorial jurisdiction and the circuit court‘s role within our judicial system. “[T]erritorial jurisdiction describes the concept that only when an offense is committed within the boundaries of the court‘s jurisdictional geographic territory may the case be tried in that state.” Hemenway v. Hemenway, 159 N.H. 680, 683 (2010) (quotation, brackets, and ellipsis omitted); see Hardy v. Betz, 105 N.H. 169, 175 (1963) (recognizing that a state‘s criminal
Our circuit court is a statutory court of limited subject matter jurisdiction.
We now turn to the parties’ arguments. The State contends that the circuit court would not have exceeded its territorial jurisdiction by issuing the search warrant under the circumstances of this case. It maintains that, although no New Hampshire statute expressly grants the circuit court the authority to issue extraterritorial search warrants, New Hampshire, Federal, and Florida law “work together to provide the [circuit] court with that authority.” It further contends that the circuit court‘s reliance upon Mello was misplaced, asserting, among other things, that the language the circuit court relied upon was dicta.
In opposition, the New Hampshire Appellate Defender Program, as amicus curiae, argues that the circuit court would have exceeded its territorial jurisdiction by issuing the search warrant. It maintains that a court can validly issue a warrant authorizing a search in another state only if: (1) the issuing court‘s home state has a law allowing the issuance of such warrants; and (2) the state where the property is located has “a law permitting searches on the authority of out-of-state warrants.” It concedes that the second of these requirements has been met, but contends that the first requirement has not. It argues not only that no New Hampshire law expressly authorizes the circuit court to issue extraterritorial search warrants, but also that
Consideration of the parties’ arguments requires that we engage in statutory interpretation. The interpretation of a statute is a question of law, which we review de novo. Bank of N.Y. Mellon v. Dowgiert, 169 N.H. 200, 204 (2016). In matters of statutory interpretation, we are the final arbiters of the legislature‘s intent as expressed in the words of the statute considered as a whole. Id. In construing its meaning, we first examine the language found in the statute, and when possible, we ascribe the plain and ordinary meanings to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We interpret statutory provisions in the context of the overall statutory scheme. Id. Absent an ambiguity, we will not look beyond the language of the statute to discern legislative intent. Id.
We first address the significance of our decision in Mello. The defendant in Mello challenged the denial of his motion to suppress evidence, arguing that the district court lacked the authority to issue a search warrant authorizing a search for information held in New Jersey. Mello, 162 N.H. at 116-17. Without citation, we noted our agreement that the district court “did not have jurisdiction to issue a warrant to an out-of-state corporation.” Id. at 118. This language, however, is dicta and is not controlling here. Our comments were unnecessary to the decision in Mello because: (1) the State conceded that the warrant was defective, id.; and (2) we held that, nevertheless, a warrant was not needed to obtain the out-of-state records sought because the defendant had no reasonable expectation of privacy in them, id. at 118, 120. Additionally, although we “outline[d] some of the proper procedures for obtaining records and evidence located outside of New Hampshire,” we also explicitly recognized that these examples “d[id] not foreclose the possibility that there may be other permissible means for obtaining evidence from an out-of-state corporation.” Id. at 118.
Having determined that Mello is not controlling, we now address, as a matter of first impression, the issue of whether the circuit court would have exceeded the scope of its territorial jurisdiction by issuing an extraterritorial search warrant specifically, a warrant authorizing the search and seizure of an electronic communication service provider‘s records in Florida. Because the issuance of extraterritorial search warrants is not expressly prohibited by the legislature, and because the amicus has not identified any constitutional limitations applicable to these facts, we hold that the circuit court would not have exceeded its territorial jurisdiction by issuing the search warrant at issue here. Our decision today is not a broad pronouncement that the circuit court may lawfully issue extraterritorial search warrants. Rather, our holding is limited to the facts of this case, and to the issue of whether the circuit court would have exceeded its territorial jurisdiction.
We first note that the Secured Communications Act (SCA), see
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, 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
New Hampshire‘s search warrant statute,
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 (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, 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
We are not persuaded that
The circuit court shall be a court of record with statewide jurisdiction. Each circuit court location shall have the authority to hear all cases within the subject matter jurisdiction of the circuit court. Subject to part 1, article 17 of the New Hampshire constitution, nothing in this chapter shall prohibit the reassignment of cases within the circuit court as justice or efficiency requires in the discretion of the administrative judge of the circuit court.
Accordingly, we conclude that there is no statutory or constitutional barrier to the issuance of the search warrant here. To the extent the amicus argues that extraterritorial search warrants may issue only if the authority is expressly granted by the issuing state‘s statute, we disagree. It cites no authority supporting this view, and relevant authority supports the contrary position. See United States v. Orisakwe, 624 F. App‘x 149, 155 (5th Cir. 2015) (citing state laws “containing no restrictions based on a company‘s data being located elsewhere” and noting that that there was “no dispute” that law of issuing states authorized “search warrants issued to Facebook and Yahoo, despite these entities’ storing the requested information outside the issuing state“).
For the foregoing reasons, we conclude that the trial court erred in ruling that it lacked the authority to issue the search warrant for records held by AT&T in Florida.
Reversed.
DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.