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In re Search Warrant For Records From AT&T

Supreme Court of New Hampshire

June 9, 2017

IN RE SEARCH WARRANT FOR RECORDS FROM AT&T

          Argued: January 17, 2017

         2d Circuit Court-Plymouth District Division

          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 (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 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, 67 A.3d 1001, 1002-03 (Conn. 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 (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 ...


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