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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


2d Circuit Court–Plymouth District Division
No. 2016-0187


            IN RE SEARCH WARRANT FOR RECORDS FROM AT&T

                           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 (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



                                         2
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 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




                                          3
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
(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




                                        4
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 18
U.S.C.S. §§ 2701 et seq. (2008 & Supp. 2017), provides relevant background to
our analysis.

      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 18
U.S.C. § 2703(a) (2012) (amended 2016, effective on date signed by the
president). The parties appear to agree that AT&T is such a provider. One
option available to governmental entities under section 2703(a) of the SCA is to
obtain a “warrant . . . issued using State warrant procedures . . . by a court of
competent jurisdiction.” 18 U.S.C. § 2703(a). The SCA’s definition of “court of
competent jurisdiction” includes “a court of general criminal jurisdiction of a
State authorized by the law of that State to issue search warrants.” 18 U.S.C.
§ 2711(3) (2012) (quotation omitted). “The SCA does not expressly address
whether a state court can issue a search warrant for . . . content located in
another state.” Rose, 330 P.3d at 685. Thus, we look to New Hampshire law to
determine whether an extraterritorial warrant can issue in this case.

       New Hampshire’s search warrant statute, RSA 595-A:1 (2001), does not
expressly limit the circuit court’s authority to issue search warrants based
upon the location of the property or article sought. The statute provides, in
pertinent part, that “[a] search warrant . . . may be issued by any justice,
associate justice or special justice of the . . . [circuit] or superior courts.” Id.;
see RSA 490-F:18. By its plain language, RSA 595-A:1 demonstrates that the
circuit court has the authority to issue search warrants. Further, as the
amicus appears to recognize, the statute contains no language placing a
territorial limit on this authority. See RSA 595-A:1; RSA 490-F:18; cf. Mass.
Gen. Laws Ann. ch. 276 § 1 (West 2014) (authorizing courts to issue search
warrants for property “concealed . . . anywhere within the commonwealth and
territorial waters thereof”). We, therefore, conclude that the legislature
intended to grant the circuit court authority to issue extraterritorial search
warrants to the extent constitutionally permissible. Cf. Computac, Inc. v. Dixie



                                         5
News Co., 124 N.H. 350, 355 (1983) (noting this court has interpreted long-arm
statute as “coextensive with constitutional limitations”). This interpretation is
consistent with the legislature’s definition of the territorial jurisdiction of our
Criminal Code. See RSA 625:4 (permitting conviction for offenses under laws
of New Hampshire in certain circumstances although underlying conduct
occurred out of state). Had the legislature wished to place more restrictive
limitations on the circuit court’s authority, it could have done so. We will not
add language that the legislature did not see fit to include. Bank of N.Y.
Mellon, 169 N.H. at 204.

       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 communication service providers] on
the authority of out-of-state warrants.” Indeed, Florida law expressly requires
“business[es] that provide[] electronic communication services” to respond to a
“warrant issued by another state” by producing the requested records “as if
that . . . warrant had been issued by a Florida court.” Fla. Stat. § 92.605(3)
(2003).

     We are not persuaded that RSA 490-F:2 limits the circuit court’s
authority to issue search warrants. RSA 490-F:2 provides:

      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.

RSA 490-F:2 (emphasis added). The amicus argues that the emphasized
language limits the circuit court’s territorial jurisdiction and, consequently,
places a territorial limitation on its authority to issue search warrants. We
disagree. To the extent that the phrase “with statewide jurisdiction” can be
read as a territorial limitation, the remaining language of RSA 490-F:2
demonstrates that any such limitation relates to, in the criminal context, the



                                         6
circuit court’s territorial jurisdiction over the offense. Id. (discussing “authority
to hear . . . cases” and the “reassignment of cases”). Although related, the
issue of a court’s territorial jurisdiction over an offense and the issue of a
court’s authority to issue extraterritorial search warrants are separate issues.
See Wagner v. State, 368 S.W.3d 914, 927 (Ark. 2010) (concluding that statute
restricting court’s territorial jurisdiction over offenses did not limit court’s
authority to issue extraterritorial search warrant).

       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.




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