In re Search Warrant for Records from AT & T

170 N.H. 111

165 A.3d 711

IN RE SEARCH WARRANT FOR RECORDS FROM AT & T

No. 2016-0187

Supreme Court of New Hampshire.

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.

HICKS, J.

The State appeals an order of the Circuit Court (Rappa, J.) denying an application for a search warrant. The trial court ruled that it lacked the authority to issue the search warrant because the application sought records held by AT&T, a foreign corporation. We reverse.

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, 27 A.3d 771 (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, 992 A.2d 575 (2010) (quotation, brackets, and ellipsis omitted); see Hardy v. Betz, 105 N.H. 169, 175, 195 A.2d 582 (1963) (recognizing that a state's criminal law "has no operation or effect beyond its geographical or territorial limits" (quotation omitted)). Consistent with this concept, the legislature has defined the territorial jurisdiction of our Criminal Code. See RSA 625:4 (2016) (setting forth circumstances under which a person may be convicted for an offense under the laws of New Hampshire). Under certain circumstances, a court may exceed the scope of its territorial jurisdiction by issuing an extraterritorial search warrant—i.e., a warrant to search a place located outside its jurisdictional geographic territory. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.2(f), at 635 (5th ed. 2012) ; see also State v. Esarey, 308 Conn. 819, 67 A.3d 1001, 1002-03 (2013) (referring to a warrant for evidence located out of state as "extraterritorial").

Our circuit court is a statutory court of limited subject matter jurisdiction. RSA 490-F:1, :3 (Supp. 2016) ; State v. Laux, 167 N.H. 698, 701, 117 A.3d 725 (2015). The legislature established the circuit court in 2011 by merging the former probate and district courts and the former judicial branch family division. 4 G. J. MacDonald, New Hampshire Practice: Wiebusch on New Hampshire Civil Practice and Procedure § 1.07, at 1-6 (4th ed. 2014); see Laws 2011, 88:1. It conferred the "jurisdiction, powers, and duties" of these former courts upon the circuit court, and divided the circuit court into three divisions: a probate division, a district division, and a family division. RSA 490-F:3. In criminal matters, the circuit court has original jurisdiction, subject to appeal, of certain crimes and offenses "committed within the confines of the district in which such court is located." RSA 502-A:11 (Supp. 2016) ; see RSA 490-F:18 (Supp. 2016) (providing that, for statutes involving jurisdiction, references to probate, district, and judicial branch family division are to be considered references to the circuit court in some instances, and references to both the circuit court and superior court in others). However, each circuit court location has "the authority to hear all cases within the subject matter jurisdiction of the circuit court," and the legislature has expressly permitted "the reassignment of cases within the circuit court as justice or efficiency require[ ] in the discretion of the administrative judge of the circuit court." RSA 490-F:2 (Supp. 2016).

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 RSA 490-F:2 unambiguously prohibits the circuit court from doing so.

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, 145 A.3d 138 (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, 27 A.3d 771. 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, 27 A.3d 771. 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, 27 A.3d 771. 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, 27 A.3d 771.

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...