                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                       UNITED STATES COURT OF APPEALS                    November 10, 2015

                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellant,

v.                                                         No. 14-3035

ZACHARY KRUEGER,

      Defendant - Appellee.
                      _________________________________

                     Appeal from the United States District Court
                              for the District of Kansas
                         (D.C. No. 6:13-CR-10175-MLB-1)
                       _________________________________

Richard A. Friedman, U.S. Department of Justice, Washington, D.C. (Barry R. Grissom,
United States Attorney, James A. Brown and Jason W. Hart, Assistant U.S. Attorneys,
Topeka, Kansas; and David A. O’Neil, Acting Assistant Attorney General, and David M.
Bitkower, Deputy Assistant Attorney General, Washington, D.C., with him on the briefs),
for Plaintiff-Appellant.

Joel Mandelman, Office of the Federal Public Defender, Wichita, Kansas, for Defendant-
Appellee.
                      _________________________________

Before TYMKOVICH, Chief Judge, EBEL, and GORSUCH, Circuit Judges.
                 _________________________________

EBEL, Circuit Judge.
                         _________________________________

      This appeal arises from the district court’s order granting Defendant-Appellee

Zachary Krueger’s motion to suppress evidence seized in Oklahoma pursuant to a
warrant that was issued by a United States magistrate judge in Kansas. In granting

Krueger’s motion, the district court concluded that suppression was necessary

because (1) the warrant violated Fed. R. Crim. P. 41, which generally limits a federal

magistrate judge’s warrant-issuing authority to the district where he or she sits, and

(2) Krueger established that he was prejudiced by the Rule 41 violation. On appeal,

Plaintiff-Appellant the United States (“Government”) argues that reversal is

necessary because the district court applied the wrong legal standard in determining

that Krueger established prejudice. Exercising our jurisdiction under 18 U.S.C.

§ 3731, we AFFIRM the district court’s order granting Krueger’s motion to suppress.

                                        I. Facts

      In June 2013, Homeland Security Investigations (“HSI”) Agent Rick Moore

learned that child pornography was being distributed over the internet from an IP

address registered to Krueger, a Kansas resident. Agent Moore thereafter obtained a

warrant from a United States magistrate judge in the District of Kansas (“Warrant 1”)

to search Krueger’s Kansas residence for items such as computers and cell phones

that may be used to depict child pornography visually. Upon executing Warrant 1 at

6:40 a.m. on June 13, however, Agent Moore discovered that Krueger was not home

and that his computer and cell phone were not in the residence. Krueger’s roommate,

who was present when Agent Moore executed the warrant, indicated that Krueger

was in Oklahoma City visiting a friend, Nate Benner, and that Krueger may have

taken his computer and cell phone with him to Oklahoma.



                                           2
      Based on this information, Agent Moore asked Oklahoma-based HSI Agent

Jeff Perkins to verify Krueger’s whereabouts. That same day, June 13, Agent Perkins

identified Krueger’s automobile parked outside of Benner’s Oklahoma residence.

Agent Moore then sought and obtained a second warrant from a different United

States magistrate judge in the District of Kansas (“Warrant 2”). This warrant—which

was issued just hours after Agent Moore had executed Warrant 1—authorized law

enforcement to search both Benner’s Oklahoma residence and Krueger’s automobile

parked outside of Benner’s residence for electronic devices belonging to Krueger or

in his possession.

      Agent Moore transmitted Warrant 2 to Agent Perkins in Oklahoma

immediately after it was issued by the United States magistrate judge in Kansas.

Upon receiving Warrant 2, Agent Perkins and a team of other agents went to

Benner’s Oklahoma residence. Krueger was present when the agents executed

Warrant 2 at 12:30 p.m. on June 13, seizing (among other things) Krueger’s computer

and external hard drive.

      Shortly after entering Benner’s residence, however, one of the agents noticed

that Warrant 2 had been issued by a federal magistrate judge in the District of

Kansas—rather than a federal magistrate judge in the Western District of Oklahoma,

the district within which Benner’s residence is located—and asked Agent Perkins if

that was acceptable. Agent Perkins promptly called Agent Moore in Kansas, who

was then advised by the Assistant United States Attorney handling the case to refrain

from searching the computer and hard drive until consent or an additional warrant

                                           3
could be obtained. Around the time that Agent Perkins was on the phone, an agent

who was not aware of the potential defect in Warrant 2 was interviewing Krueger.

During this interview, Krueger waived his Miranda rights, admitted to viewing child

pornography and trading it with others over the internet, and authorized HSI agents to

assume his online presence with respect to his peer-to-peer networking account for

investigative purposes.

      Consistent with the Assistant United States Attorney’s advice, the agents who

seized Krueger’s computer and hard drive in Oklahoma waited to search the devices

until a Kansas Police Department officer visited Krueger’s residence a few weeks

later and obtained Krueger’s written consent. A subsequent search of Krueger’s

computer and hard drive revealed evidence that Krueger had downloaded and traded

child pornography using his peer-to-peer networking account. As a result, Krueger

was charged with distribution of child pornography in violation of 18 U.S.C.

§ 2252(a)(2).

                                    II. Procedure

      Krueger thereafter filed a pretrial motion to suppress the evidence seized in

Oklahoma as well as the statements he made to law enforcement. See Fed. R. Crim.

P. 12(b)(3), 41(h). Most relevant on appeal, Krueger asserted that suppression was

necessary because Warrant 2 violated Fed. R. Crim. P. 41, the general provision

governing all searches and seizures that are “federal in character.” See United States

v. Pennington, 635 F.2d 1387, 1389 (10th Cir. 1980). Specifically, Krueger argued

that Warrant 2—which was issued by a federal magistrate judge in the District of

                                          4
Kansas for property already located in Oklahoma—violated Rule 41(b)(1), which

provides that “a magistrate judge with authority in the district -- or if none is

reasonably available, a judge of a state court of record in the district -- has authority

to issue a warrant to search for and seize a person or property located within the

district.”1 (Emphasis added.)

      According to Krueger, this Rule 41 violation required suppression because

Warrant 2, having been issued by a federal magistrate judge without authority to do

so, was void from the outset, thereby rendering the Oklahoma search warrantless and

unconstitutional.2 Even if Warrant 2 was not void from the outset, Krueger argued

that suppression was nonetheless necessary because he was prejudiced by the Rule 41

violation in the sense that he would not have cooperated with law enforcement had he

known that Warrant 2 was issued by a federal magistrate judge who lacked warrant-

issuing authority under the Rule.

      After a suppression hearing, the district court granted Krueger’s motion. In so

doing, the district court concluded that Warrant 2 violated Rule 41(b)(1).3 Although


      1
         State court judges’ authority under Rule 41(b)(1) turns on many factors that
have no bearing on federal magistrate judges’ authority under the Rule. Thus,
although Rule 41(b)(1) addresses the warrant-issuing authority of both state court
judges and federal magistrate judges, we expressly confine our analysis to federal
magistrate judges’ authority under the Rule.
       2
         Krueger also argued in the district court that the search was unconstitutional
for the independent reason that Warrant 2 lacked probable cause. The district court
did not make a probable cause determination. Nor do we because we affirm the
district court’s suppression order based on Warrant 2’s Rule 41 violation. See infra
p. 14.
       3
         The district court specifically rejected the Government’s argument that
Warrant 2 was valid in light of Rule 41(b)(2), which operates as an exception to Rule
                                            5
the district court noted that not all Rule 41 violations require suppression, the court

determined that suppression was necessary here because Krueger demonstrated

prejudice in the sense that the Kansas magistrate judge would not have issued

Warrant 2 had Rule 41 “been followed to the letter.” Applt. App. at 168 (Order

Granting Mot. to Suppress at 7) (internal quotation marks omitted).

      The district court thereafter set the matter for trial. Shortly before trial

commenced, the Government filed a timely notice of appeal.

                                      III. Analysis

      On appeal, the Government concedes for the first time that Warrant 2 violated

Rule 41(b)(1) because the United States magistrate judge in the District of Kansas

did not have authority to issue a warrant for property already located in Oklahoma.

Given the obviousness of this Rule 41 defect on the record before us, the

Government’s belated concession is a prudent one.4 See Government Br. at 21 n.4

(explaining that the district court found Warrant 2 “was so facially deficient that the

good-faith exception should not apply” and expressly not appealing that ruling).

Notwithstanding Warrant 2’s Rule 41 defect, the Government urges us to reverse the


41(b)(1)’s within-district limitation by authorizing a federal magistrate judge to issue
a warrant “for a person or property outside the district if the person or property is
located within the district when the warrant is issued but might move or be moved
outside the district before the warrant is executed.” (Emphasis added.) The district
court determined that Rule 41(b)(2) did not apply because both Krueger and the
property at issue were already located in Oklahoma at the time Warrant 2 was issued.
The Government does not contest that determination on appeal.
       4
         We expressly do not address the propriety of suppression when, at the time of
issuance, it is genuinely unclear whether the federal magistrate judge has authority to
issue an outside-of-district warrant.
                                            6
district court’s order granting Krueger’s motion to suppress, because, according to

the Government, the district court applied the wrong legal standard in determining

that Krueger demonstrated prejudice as a result of the Rule violation.5 For the

reasons outlined below, we disagree.

                               A. Standard of review

      A defendant who moves to suppress evidence obtained through a search with a

warrant bears the initial burden of establishing that the search was illegal. See 3A

Fed. Prac. & Proc. Crim. § 689 (4th ed.) (online database updated April 2015). We

review a district court’s legal rulings on such a motion de novo. United States v.

McDowell, 713 F.3d 571, 574 (10th Cir. 2013).

                          B. Rule 41 analytical framework

      Where, as here, a district court determines that a Rule 41 violation justifies

suppression, our review is guided by the analytical framework this Court adopted in

United States v. Pennington, 635 F.2d 1387 (10th Cir. 1980). See United States v.

Pulliam, 748 F.3d 967, 973–74 (10th Cir. 2014) (applying the Pennington framework


      5
         The district court’s prejudice determination is the only source of potential
error that the Government identifies on appeal. We limit our review of the district
court’s order accordingly and therefore have no occasion to consider whether the
district court correctly concluded that: (1) the good-faith exception to the warrant
requirement was inapplicable given the obviousness of the Rule 41 defect;
(2) Krueger’s Miranda waiver and statements to HSI agents, acquired during the
Oklahoma search, required suppression because they were fruits of the poisonous
tree; and (3) Krueger’s subsequent written consent to search his computer and hard
drive, acquired a few weeks after the Government had already seized the devices,
required suppression because Kruger’s consent was involuntary. See Phillips v.
Humble, 587 F.3d 1267, 1274 (10th Cir. 2009) (declining to reach an issue that was
decided by the district court but not challenged on appeal).
                                           7
to determine whether a purported Rule 41 violation justified suppression). Under this

framework, we begin by considering whether Rule 41 was in fact violated. If so, we

typically proceed by determining whether that specific Rule 41 violation rises to the

level of a Fourth Amendment violation. See Pennington, 635 F.2d at 1390; see

generally David B. Levendusky, Annotation, Noncompliance with requirements of

Rule 41 of Federal Rules of Criminal Procedure as ground for exclusion, in federal

prosecution, of evidence procured under state search warrant, 25 A.L.R. Fed. 247

(2015) (explaining that Rule 41 is not coextensive with the Fourth Amendment

because Rule 41 incorporates standards that are in some respects “more specific and

more stringent”). If we determine that the Rule 41 violation is not of constitutional

import, we then consider whether the defendant can establish that, as a result of the

Rule violation, “(1) there was ‘prejudice’ in the sense that the search might not have

occurred or would not have been so abrasive if the Rule had been followed, or (2)

there is evidence of intentional and deliberate disregard of a provision in the Rule.”

Pennington, 635 F.2d at 1390. Unless the defendant can establish prejudice or

intentional disregard of the Rule, a non-constitutional violation of Rule 41 will not,

by itself, justify suppression. Id.

   1. The Government concedes that Rule 41(b)(1) was violated

       The first step in the Pennington framework is easily established because the

Government concedes that Warrant 2 violated Rule 41(b)(1)’s within-district

limitation on federal magistrate judges’ warrant-issuing authority.



                                           8
   2. We need not determine whether the Rule 41(b)(1) violation in this case rises to
      the level of a Fourth Amendment violation

      Because there is a clear Rule 41(b)(1) violation here, we would typically

proceed through the Pennington framework by considering whether this specific Rule

41 violation rises to the level of a Fourth Amendment violation—i.e., we would

consider whether an outside-of-district warrant issued by a federal magistrate judge

who lacks authority to do so under Rule 41 violates the Fourth Amendment. The

district court did not address this question, which would present an issue of first

impression in this Circuit. The Government urges us to conclude that there was no

constitutional violation in this case, arguing that any within-district limitation on

federal magistrate judges’ warrant-issuing authority is a feature of Rule 41 and the

Federal Magistrates Act, 28 U.S.C. § 636(a)(1)—not a Fourth Amendment

requirement. According to the Government, when it comes to who issues a warrant,

all that the Fourth Amendment requires is a neutral and detached magistrate.

      However, we need not decide the constitutionality of the Rule 41(b)(1)

violation at issue here because doing so would not alter the outcome of this appeal.

See United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc)

(declining to decide the constitutionality of the warrantless use of a thermal imager to

scan the defendant’s residence because the detective’s affidavit was by itself

sufficient to establish probable cause). On appeal, the Government abandoned all of

the arguments it made against suppression below except its argument that Krueger

failed to establish prejudice. See supra p. 7 n.5. Because the Government offers no


                                            9
other basis for reversal,6 and because (as explained in more detail below) we

conclude that Krueger has established prejudice as a result of Warrant 2’s Rule 41

defect, we affirm the district court’s suppression order regardless of whether the

Fourth Amendment contains a within-district limitation on magistrate judges’

warrant-issuing authority. Thus, consistent with the fundamental rule of judicial

restraint, we decline to reach a constitutional question that is not necessary to our

resolution of this appeal. See Cusumano, 83 F.3d at 1250–51.

   3. Krueger established prejudice in the sense that the Oklahoma search might not
      have occurred had Rule 41(b)(1) been followed

      Accepting for purposes of our analysis the Government’s contention that this

Rule 41(b)(1) violation does not offend the Fourth Amendment, we next consider

whether Krueger established that suppression was justified by showing either

(1) prejudice in the sense that the search might not have occurred or would not have

been so abrasive if the Rule had been followed, or (2) intentional disregard for a

provision of the Rule. See Pennington, 635 F.2d at 1390. Because Krueger does not

contest the district court’s determination that neither the Kansas magistrate judge nor

the HSI agents acted in bad faith, meaning that they did not intentionally disregard

Rule 41, our analysis focuses on whether Krueger established prejudice.



      6
        We do not consider the Government’s argument—raised for the first time
during oral argument—that, even if the Rule 41 violation here was of constitutional
import, suppression was not necessary because it was reasonable for the HSI agents
to seek a warrant in Kansas, the district with venue to prosecute the offense. See
United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) (“The failure to raise
an issue in an opening brief waives that issue.”).
                                           10
      This Court has not yet had occasion to consider whether suppression is

justified when a warrant is issued by a federal magistrate judge who clearly lacks

authority to do so under Rule 41(b)(1).7 The district court concluded that suppression

was warranted because Krueger demonstrated prejudice in the sense that the federal

magistrate judge in the District of Kansas would not have issued Warrant 2—

meaning that the Oklahoma search might not have occurred—had Rule 41(b)(1)

      7
         Over the years, we have addressed many other provisions of Rule 41, never
concluding that the alleged Rule 41 violation(s) at issue justified suppression. See,
e.g., Pulliam, 748 F.3d at 973–74 (concluding that alleged violation of Rule 41(f) for
failing to provide defendant with a copy of the search warrant contemporaneous with
the search did not justify suppression); United States v. Burgess, 576 F.3d 1078,
1097 (10th Cir. 2009) (concluding that violation of Rule 41(e) for failing to execute a
warrant within ten days did not justify suppression); United States v. Hugoboom, 112
F.3d 1081, 1086-87 (10th Cir. 1997) (reciting the Pennington framework and
concluding that failing to list on the anticipatory warrant an “on or before” date for
execution of the warrant, an ostensible violation of former Rule 41(c), did not justify
suppression); United States v. Mesa-Rincon, 911 F.2d 1433, 1436 (10th Cir. 1990)
(concluding that former Rule 41(b) was not violated by a warrant permitting covert
television surveillance, meaning suppression was not justified on this ground),
holding modified on other grounds by United States v. Castillo-Garcia, 117 F.3d
1179 (10th Cir. 1997), overruled on another ground by United States v. Ramirez-
Encarnacion, 291 F.3d 1219, 1222 n.1 (10th Cir. 2002); United States v. Rome, 809
F.2d 665, 669–70 (10th Cir. 1987) (concluding that violations of former Rule 41(c)
for failing to comply with requirements for issuing a warrant pursuant to a phone
affidavit did not justify suppression); United States v. Massey, 687 F.2d 1348, 1355–
56 (10th Cir. 1982) (concluding that former Rule 41(a) was not violated because
warrants, although based upon affidavit of state official, were requested by an
Assistant United States Attorney and that violations of former Rule 41(c) for failing
to designate a federal magistrate to whom the warrants will be returned and to
comply with requirements for taking oral testimony to supplement affidavit did not
justify suppression); Pennington, 635 F.2d at 1389–90 (concluding that violation of
Rule 41(c) by virtue of warrant being executed by a state official, instead of a federal
official, did not justify suppression).
        Because none of these cases addressed Rule 41(b)(1), which is unique from
other provisions of Rule 41 because it implicates “substantive judicial authority,”
United States v. Berkos, 543 F.3d 392, 397 (7th Cir. 2008), they offer limited
guidance here.
                                          11
“been followed to the letter.” Order Granting Mot. to Suppress at 7 & n.3 (internal

quotation marks omitted).8

      On appeal, the Government argues that the district court applied the wrong

prejudice standard in determining that the search might not have occurred.

According to the Government, instead of asking whether the federal magistrate judge

in the District of Kansas could have issued Warrant 2 in compliance with Rule 41,

the district court should have asked whether any federal magistrate judge in the

Western District of Oklahoma, the district within which Benner’s residence is

located, could have issued Warrant 2. We disagree.

      Unlike the standard that the district court adopted—which would allow

defendants to establish prejudice when the Government seeks and obtains a search

warrant from a federal magistrate judge who lacks warrant issuing authority under

Rule 41—the Government’s proposed standard would preclude defendants from

establishing prejudice in this context so long as the Government hypothetically could

have obtained the warrant from a different federal magistrate judge with warrant-

issuing authority under the Rule. When it comes to something as basic as who can

issue a warrant, we simply cannot accept such a speculative approach. Thus, instead

of focusing on what the Government could have done to comply with Rule 41(b)(1),

we conclude that prejudice in this context should be anchored to the facts as they


      8
       Although prejudice can be established by showing that, had Rule 41 been
followed, the search either would not have been so abrasive or would not have
occurred, we focus on the latter method of proving prejudice because that is the
method upon which the district court relied.
                                          12
actually occurred.9 Cf. Coolidge v. New Hampshire, 403 U.S. 443, 450–51 (1971)

(explaining that a search warrant issued by the state Attorney General was invalid

even if a magistrate confronted with the same showing of probable cause would have

issued the warrant and rejecting “the proposition that the existence of probable cause

renders noncompliance with the warrant procedure an irrelevance”). Accordingly,

we adopt the district court’s standard for determining whether a defendant

established prejudice as a result of a Rule 41(b)(1) violation and ask whether the

issuing federal magistrate judge could have complied with the Rule.

      Applying this standard, we conclude that Krueger established prejudice in the

sense that the Oklahoma search might not have occurred because the Government

would not have obtained Warrant 2 had Rule 41(b)(1) been followed. The

Government sought and obtained Warrant 2 from a federal magistrate judge in the

District of Kansas who clearly lacked Rule 41 authority to issue a warrant for

property already located in Oklahoma. Had the magistrate judge recognized that

clear and obvious fact, he surely would not have issued Warrant 2. And, had


      9
         We find unpersuasive out-of-circuit cases that have engaged in this type of
speculation when evaluating the impact of similar Rule 41(b)(1) violations. See, e.g.,
United States v. Cassidy, 532 F. Supp. 613, 617 (M.D. N.C. 1982) (concluding that,
although a warrant issued by a magistrate judge in the Eastern District of North
Carolina to be executed in the Middle District of North Carolina violated Rule
41(b)(1), the defendant was not prejudiced because “the warrant would have been
issued by a judge or magistrate of the Middle District”); United States v. Vann, No.
07-CR-247, 2007 WL 4321969, *22–23 (D. Minn. 2007) (unreported) (concluding
that, although a warrant issued by a magistrate judge in the District of Minnesota to
be executed in the Western District of Wisconsin violated Rule 41(b)(1), the
defendant was not prejudiced because “the same Warrant would have been issued by
a Magistrate Judge in the Western District of Wisconsin”).
                                          13
Warrant 2 not been issued, the Oklahoma search would not have occurred as it did,

meaning that the Government would not have had occasion to secure Krueger’s

cooperation or seize his hard drive and computer. Although the Government may

have been able to obtain a warrant from a federal magistrate judge in the Western

District of Oklahoma, meaning it may have ultimately secured Krueger’s cooperation

and seized his devices without violating Rule 41, such hypotheticals simply cannot

cure the Government’s gross negligence in failing to comply with Rule 41(b)(1) in

the first instance. Cf. United States v. Glover, 736 F.3d 509, 514–15 (D.C. Cir.

2013) (explaining that a warrant issued in “blatant disregard” of a judge’s territorial

jurisdiction under 18 U.S.C. § 2518(3) and Rule 41 cannot be excused as a mere

“technical defect”).

      Because Krueger met his burden of establishing prejudice and because

suppression furthers the purpose of the exclusionary rule by deterring law

enforcement from seeking and obtaining warrants that clearly violate Rule 41(b)(1),10

see Herring v. United States, 555 U.S. 135, 144 (2009) (explaining that the

exclusionary rule serves to deter not only deliberate and reckless police conduct but

also grossly negligent conduct); United States v. McCane, 573 F.3d 1037, 1045 (10th

Cir. 2009) (explaining that the exclusionary rule is appropriate only if the law


      10
         But cf. United States v. Master, 614 F.3d 236, 242–43 (6th Cir. 2010)
(suggesting, in the context of a warrant issued by a state-court judge who lacked
warrant-issuing authority under state law, that the judge’s lack of authority may not
have an impact on police misconduct “if the officers mistakenly, but inadvertently,
presented the warrant to an incorrect magistrate” and remanding to the district court
to balance the benefits of deterrence against the costs of suppression).
                                           14
enforcement activity at issue was not objectively reasonable), we affirm the district

court’s order granting Krueger’s motion to suppression, cf. State v. Rupnick, 125

P.3d 541, 552 (Kan. 2005) (suppressing evidence obtained through a warrant that

violated state statute requiring warrants to be executed within the judicial district

where the issuing judge resides).11


                                      IV. Conclusion

      For the foregoing reasons, we affirm the district court’s order and remand for

further proceedings consistent with this opinion.




      11
         Because we affirm the district court on the merits, we need not address
Krueger’s argument that the Government waived appellate review of the district
court’s prejudice determination.
                                           15
No. 14-3035, United States v. Krueger

GORSUCH, Circuit Judge, concurring in the judgment.

      At the heart of the Fourth Amendment lies the promise that the government

will not search your home without a warrant, your consent, or at least some real

emergency. To justify its search of a home in this case the government relies

exclusively on the claim that it had a warrant. But — and by its own concession

— the magistrate judge who issued the warrant lacked statutory authority to do

so. In this appeal, the government asks us to overlook this defect and declare the

warrant somehow valid all the same for Fourth Amendment purposes. A sort of

phantom warrant, then, disappearing whenever you look to positive law and

manifesting itself only before the Constitution. It’s certainly a bold claim — but

one I find no more persuasive for it.

                                         *

      Here’s the source of the government’s problem. The Federal Magistrates

Act identifies only three geographic areas in which a federal magistrate judge’s

powers are effective:


      Each United States magistrate judge . . . shall have [1] within the district in
      which sessions are held by the [district] court that appointed the magistrate
      judge, [2] at other places where that [district] court may function, and [3]
      elsewhere as authorized by law . . . all powers and duties conferred or
      imposed upon United States commissioners by law or by the Rules of
      Criminal Procedure . . . . 28 U.S.C. § 636(a) (2012).

      The problem in this case is that a magistrate judge purported to exercise

power in none of these places. The government “readily concede[s]” that the
statute imposes geographic limitations on the powers of magistrate judges. Reply

Br. at 16. The government readily concedes, too, that a federal magistrate judge

assigned to the District of Kansas violated these restrictions when he purported to

warrant the search of a home in Oklahoma. See id. And surely that’s right:

warranting a search in Oklahoma — authorizing governmental intrusion into

private property located there — is exercising power in Oklahoma. And just as

obviously, Oklahoma isn’t within the District of Kansas, it isn’t a place where the

Kansas federal district court may function, and it isn’t a place where the Kansas

magistrate judge is otherwise specifically authorized to act by law. So putting the

point plainly, the warrant on which the government seeks to justify its search in

this case was no warrant at all when looking to the statutes of the United States.

                                            *

      This is a point worth pausing over. For while in some places the

government’s briefs candidly admit that the warrant in this case was indeed

statutorily invalid in light of § 636(a)’s territorial restrictions, in other places its

briefs seem to take the view that any infraction in this case implicated only Rule

41 of the Federal Rules of Criminal Procedure and not any statutory command.

      Neither is it surprising that the government might wish to elide the

distinction between a violation of the rules and a violation of statute, for the

government proceeds to ask us to apply a circuit precedent holding that we should

not suppress evidence found in searches that violate only the terms of Rule 41

                                           -2-
unless and until the defendant shows prejudice flowing from the violation. And

the government suggests that the defendant in this case cannot show any prejudice

flowing from the fact that a Kansas magistrate judge issued the contested warrant,

for an Oklahoma magistrate judge surely would have issued the same (and

otherwise lawful) warrant if asked. By its own terms, however, the precedent on

which the government rests for the notion that the defendant must prove prejudice

— United States v. Pennington, 635 F.2d 1387 (10th Cir. 1980) — applies only

when a defendant claims a violation of Rule 41. Pennington imposes no similar

duty on defendants claiming a violation of a statutory command or the Fourth

Amendment (or for that matter any other rule of criminal procedure). See id. at

1390. So, as it happens, quite a lot turns on the question whether the error before

us implicates only Rule 41 or also a federal statute. 1


      1
         I confess I question Pennington’s prejudice requirement even when
applied only to Rule 41 violations. The Federal Rules of Criminal Procedure
expressly prescribe a standard for evaluating whether their violation is
sufficiently grave to warrant remedial action: it’s Rule 52(a)’s harmless error
standard. That standard requires the government to prove any violation of Rule
41 to be harmless before it may be overlooked. Pennington improperly reverses
that burden — and does so not only without any authority in the rules themselves
but without any regard to the fact Rule 52(a) speaks precisely and very differently
to the same issue. I appreciate that Pennington took its cue from Judge Friendly’s
opinion in United States v. Burke, 517 F.2d 377 (2d Cir. 1975). See George E.
Dix, Nonconstitutional Exclusionary Rules in Criminal Procedure, 27 Am. Crim.
L. Rev. 53, 93 (1989). But it turns out that neither Pennington nor Burke supplies
any plausible reason or authority to replace Rule 52(a) with an atextual rule of
decision that shifts the burden from the government to the defendant — and does
so, curiously, for but a single rule of procedure. See generally Bank of Nova
Scotia v. United States, 487 U.S. 250, 255 (1988) (“It follows that Rule 52 is, in

                                          -3-
      For my part, I do not doubt that the error here is one of statutory

dimension, just as the government (sometimes) concedes. As a matter of plain

language, the statute indicates that rulemakers may provide what powers a

magistrate judge will have. But the statute also expressly and independently

limits where those powers will be effective. Section 636(a) says that a magistrate

judge “shall have” what “powers and duties” the rules and other laws may afford

but only “within the district” where he is appointed to serve, “at other places”

where his court may function, or “elsewhere” as authorized by law. And the

problem in this case is that a magistrate judge purported to exercise a Rule 41

power to issue a warrant (a what) but purported to exercise that power in a place

(a where) that meets none of the statutory criteria. 2

      Put in a way your high school English teacher might appreciate, the

magistrate judge is the subject of the sentence in § 636(a), his powers and duties


every pertinent respect, as binding as any statute duly enacted by Congress, and
federal courts have no more discretion to disregard the Rule’s mandate than they
do to disregard constitutional or statutory provisions.”); United States v. Lane,
474 U.S. 438, 448 n.11 (1986) (“[O]n its face, Rule 52(a) admits of no broad
exceptions to its applicability.”).
      2
         When it comes to the question what powers § 636(a) affords, some read
the statute as conferring only those “powers” that were conferred to U.S.
“commissioners” by rule prior to 1968, when the statute was enacted. Others
suggest that the statutory language permits rulemakers to add further powers as
they wish. Happily, that issue isn’t one we have to tangle with today. See In re
Search of Scranton Hous. Auth., 487 F. Supp. 2d 530, 534 (M.D. Pa. 2007); see
also Gomez v. United States, 490 U.S. 858, 865 (1989); Stuart v. Rech, 603 F.3d
409, 411 (7th Cir. 2010); United States v. Douleh, 220 F.R.D. 391, 393-94
(W.D.N.Y. 2003).

                                          -4-
are the objects of that sentence, and the language beginning “within the district”

is a prepositional phrase that modifies (and so limits the reach of) the verb “shall

have.” In this way, the grammatical structure of the sentence indicates that

magistrate judges shall have those powers specified by rule or other law (e.g.,

Rule 41), but those powers are effective only in certain specified geographic areas

— and, as we’ve seen, none of those areas is implicated here. So malign your

high school grammar class all you want and rejoice in the fact no one teaches it

anymore: it holds the key to the statute before us and, really, there just isn’t any

better preparation for the job of understanding and giving effect to so many of the

complex (often run-on) sentences that (over?) populate today’s statute books.

      Confirming this reading of § 636(a) is that any other interpretation would

render large chunks of the law superfluous. So, for example, as best I can tell

from its very occasional intimations in this direction, the government seems to

think we might fairly interpret § 636(a) as delegating to rulemakers the authority

to give magistrate judges any power exercisable anywhere the rulemakers might

choose to specify. But reading the statute in this way would render Congress’s

express territorial limitations pointless. The statute might as well be written this

way: “Magistrate judges shall have all powers and duties conferred or imposed

by law or by the rules.” Without careful attention to which phrases modify which

words — without attention, yes, to the sentence’s grammar — words drop out and

the statute’s meaning changes entirely. Following the government’s occasional

                                          -5-
intimations in this direction would leave us with no more than a pastiche of the

actual statute, an unorganized collection of words, the kind of guess at meaning a

reader is forced to make when he can’t (or won’t muster the effort to) figure out

which phrases modify which words.

      Accepting, then, that Congress’s territorial restrictions deserve to be given

some effect, you might wonder if the government could at least read the statute’s

last geographic limitation (“elsewhere as authorized by law”) as referencing the

Federal Rules of Criminal Procedure, not just other statutes — and in that way as

allowing a magistrate judge to exercise any power afforded anywhere Rule 41 and

the rulemakers might suggest. But this interpretation would quickly prove as

problematic as its predecessor, for it would still render superfluous the first two

(if not all three) of Congress’s express statutory geographic restrictions.

      Retreating yet again, you might ask if the government could at least read

the statute’s territorial limitations as applying to the magistrate judge himself and

not to the powers he “shall have.” But this reading, too, would mangle the

statute’s construction — supposing that the phrase beginning “within the

district . . .” modifies the subject of the sentence rather than its verb — as if the

law read “a magistrate judge within his district . . . shall have the powers and

duties the law prescribes.” And mangling the sentence structure in this way

would yield some most unlikely results as well. It would mean that a Kansas

magistrate judge would have no power to act on matters back home in his district

                                          -6-
while he’s vacationing in Colorado. It would mean too (and conversely) that a

Kansas magistrate judge could issue warrants effective anywhere in the country

(or maybe even worldwide) so long as he happens to be physically present in his

assigned district, even when his physical location is immaterial to the

proceedings. And it’s pretty hard to imagine a reason underlying a statute like

that — while it’s simple enough to see the sense of the statute as it was written.

See generally United States v. Strother, 578 F.2d 397 (D.C. Cir. 1978).

      Taking in the statute’s legal surroundings provides further confirmation of

the conclusion its plain language and logic already suggest.

      Consider the statutory structure surrounding § 636(a). It reveals that

§ 636(a)’s three specified geographic areas are not empty categories but fit with

and find content in other easily identified statutes. First, “within the district in

which sessions are held by the court that appointed the magistrate judge” is linked

to 28 U.S.C. §§ 81-131 (2012), which designate the boundaries of federal districts

and the locations of court sessions. In turn, “other places where that court may

function” points to 28 U.S.C. § 141(b) (2012), which authorizes special court

sessions outside the district. And “elsewhere as authorized by law” references

laws like § 219 of the Patriot Act, which empowers magistrate judges to issue

search warrants for property beyond their district if certain terrorism activities

might have occurred within their district. USA PATRIOT ACT, Pub. L. No. 107-

56, § 219, 115 Stat. 291 (2001).

                                          -7-
      History shows, as well, that territorial restraints on the powers of

magistrate judges are nothing new. In fact, Congress has always taken care to

impose relatively tight territorial limits on the powers of magistrate judges and

their predecessors (commissioners). See 12 Charles Alan Wright et al., Federal

Practice and Procedure § 3066 (2d ed. 1997). As originally enacted, § 636(a)

itself allowed magistrate judges to exercise power only within the district of their

appointment. See 28 U.S.C. § 636(a) (2000). It took Hurricane Katrina and the

complications it imposed on the operation of the federal courts in Louisiana

before Congress was willing to extend the power of magistrate judges to “other

places” in which the district court is permitted to function and “elsewhere as

authorized by law.” See Federal Judiciary Emergency Special Sessions Act of

2005, Pub. L. No. 109-63, 119 Stat. 1993.

      Finally, even Rule 41(b) is consistent with the notion that § 636(a) imposes

independent territorial restrictions on the powers of magistrate judges: that rule

grants to magistrate judges the power to do certain specified things — but only if

they first have “authority within the district,” a question the rules themselves do

not purport to answer and that can be answered only by circling back to § 636(a). 3


      3
         There is one further slight wrinkle to unfold here: the sentence fragment
that is 18 U.S.C. § 3102 (2012), a statute that cryptically says just this: “Federal,
State or Territorial Judges, or U.S. magistrate judges authorized to issue search
warrants, Rule 41(a).” You might wonder if this language suggests that, at least
when it comes to search warrants, magistrate judges need only abide “Rule 41(a)”
— now Rule 41(b) — and no other law. Under this interpretation, magistrate

                                         -8-
      Having said so much to this point, the question whether we have a

statutorily authorized warrant lies nearly — but still not quite — behind us. So

far we’ve seen that a careful examination of § 636(a) confirms the government’s

(sometimes) concession that the magistrate judge in this case violated that

statutory provision by warranting a search outside the area in which his powers

are effective. The problem isn’t merely one of rule, it is one of statutory

dimension. Still, it’s not entirely clear what the extent of the statutory problem

may be. It isn’t because Congress has also instructed as a matter of statute that

the government’s statutory missteps may be disregarded if and when the

government can prove that it didn’t infringe the defendant’s substantial rights. 28

U.S.C. § 2111 (2012). A standard that parallels the one we usually apply to

infractions of the rules of procedure. See Fed. R. Crim. P. 52(a); supra n.1.



judges would be statutorily authorized to issue search warrants effective
anywhere so long as they comply with the rule’s terms. But the government itself
doesn’t attempt any argument along these lines — and, it turns out, for good
reason. For the phrase “authorized to issue search warrants, Rule 41(a)” appears
to modify the term “U.S. magistrate judges” and thus begs the question when
magistrate judges are authorized to issue search warrants — and that’s a question
it (again) takes § 636(a) to answer. History confirms this reading too, for that’s
exactly what § 3102’s predecessor, 18 U.S.C. § 611 (1940), provided: it
empowered magistrate judges to issue warrants effective only within certain
territorial limits. And there’s no indication that § 3102 sought to undo territorial
limits on a magistrate judge’s powers. To the contrary, enacted in the aftermath
of the introduction of the Federal Rules of Criminal Procedure, all indications are
that § 3102 sought to explain merely that Rule 41 now governs the question when
a magistrate judge with otherwise legally effective authority may issue a warrant.
Finally and in any event, § 3102 itself points to Rule 41 and, as explained above,
Rule 41 directs us right back to § 636(a) and its territorial constraints.

                                         -9-
      But after (sometimes) conceding a violation of § 636(a) in this case the

government never follows up with a statutory harmless error argument on its own

behalf. It never suggests that its violation of § 636(a) should be disregarded

under § 2111. And it turns out the government doesn’t attempt the argument for a

clear and clearly correct reason. Section 636(a)’s territorial restrictions are

jurisdictional limitations on the power of magistrate judges and the Supreme

Court has long taught that the violation of a statutory jurisdictional limitation —

quite unlike the violation of a more prosaic rule or statute — is per se harmful.

See, e.g., Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 n.3 (1988) (“[A]

litigant’s failure to clear a jurisdictional hurdle can never be ‘harmless’ . . . .”).

Of course, courts must exercise great caution before appending the jurisdictional

label to a statute: often Congress seeks to provide only claim-processing rules for

the parties to choose to invoke or waive and their loss sometimes can be held

harmless. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010).

But if § 636(a)’s territorial restraints aren’t jurisdictional, I struggle to imagine

statutory restraints that would be.

      Here’s why. Statutes that speak to “statutory or constitutional power to

adjudicate” rather than the rights and claims of the parties are usually treated as

jurisdictional. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998).

And § 636(a) does just that. It makes no mention of the rights of parties or rules

for processing their claims. Instead, it expressly — and exclusively — refers to

                                           -10-
the territorial scope of a magistrate judge’s power to adjudicate. Context

provides further clues pointing in the same direction. Section 636(a) is found in

Title 28 of the U.S. Code — the same title as the statutes that define a district

court’s jurisdiction. Cf. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114,

1158 (10th Cir. 2013) (Gorsuch, J., concurring), aff’d sub nom. Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751 (2014). And while 28 U.S.C. §§ 1331-32

generally define the scope of the district courts’ powers by reference to subject

matter, § 636(a) defines the scope of magistrate judges’ powers by reference to

territory. In doing so, and as we have already seen (and will soon see again), the

statute evinces a deeply rooted historical concern for limiting the territorial reach

of magistrate judges’ powers. And even if there were some lingering ambiguity

left after taking in all this evidence, the title of § 636 reads: “Jurisdiction,

powers, and temporary assignment.” Pretty hard to ignore, especially when

placed alongside all the other textual clues. In light of all this evidence it’s no

surprise that other circuits have also concluded that § 636(a)’s restraints are

indeed jurisdictional. See, e.g., N.L.R.B. v. A-Plus Roofing, Inc., 39 F.3d 1410,

1415 (9th Cir. 1994). And no surprise that the government hasn’t attempted to

suggest otherwise in this appeal.

                                            *

      With that it’s — finally — possible to turn to the main event in this appeal.

We can now accept as correct the government’s (sometimes) concession that the

                                          -11-
warrant issued in this case was unlawful, beyond the magistrate judge’s statutory

jurisdiction to authorize. And with that in hand we can confront directly the

government’s phantom warrant argument — its contention that a warrant issued in

defiance of the jurisdictional territorial restraints on a magistrate judge’s power

under statutory law somehow remains a valid warrant under the Fourth

Amendment.

      When interpreting the Fourth Amendment we start by looking to its original

public meaning — asking what “traditional protections against unreasonable

searches and seizures” were afforded “by the common law at the time of the

framing.” Atwater v. City of Lago Vista, 532 U.S. 318, 326 (2001) (internal

quotation mark omitted). Whatever else it may do, the Fourth Amendment

embraces the protections against unreasonable searches and seizures that existed

at common law at the time of its adoption, and the Amendment must be read as

“provid[ing] at a minimum” those same protections today. United States v. Jones,

132 S. Ct. 945, 953 (2012).

      That principle, it seems to me, poses an insurmountable problem for the

government in this case. For looking to the common law at the time of the

framing it becomes quickly obvious that a warrant issued for a search or seizure

beyond the territorial jurisdiction of a magistrate’s powers under positive law was

treated as no warrant at all — as ultra vires and void ab initio to use some of the

law’s favorite Latin phrases — as null and void without regard to potential

                                         -12-
questions of “harmlessness” (such as, say, whether another judge in the

appropriate jurisdiction would have issued the same warrant if asked). So, for

example, a justice of the king’s bench with nationwide territorial jurisdiction

afforded by Parliament could issue a warrant anywhere in the kingdom.

Meanwhile, warrants issued by justices of the peace — county officials

empowered to act only within their respective counties — were executable only

within those same limited bounds. See, e.g., 4 William Blackstone,

Commentaries *291-92; 2 Matthew Hale, Historia Placitorum Coronae 111

(1736); Engleman v. Deputy Murray, 546 F.3d 944, 948-49 (8th Cir. 2008). 4

Neither can I think of any reason (and the government advances none) to think

this history uninformative when it comes to our case. The principle animating the

common law at the time of the Fourth Amendment’s framing was clear: a warrant

may travel only so far as the power of its issuing official. And that principle

seems clearly applicable — and dispositive — here.

      More recent precedent follows this long historical tradition, marching in

support of the same conclusion. In discussing the Fourth Amendment’s demands



      4
         “A warrant from the chief, or other, justice of the court of king’s bench
extends all over the kingdom . . . . But the warrant of a justice of the peace in one
county, as Yorkshire, must be backed, that is, signed by a justice of the peace in
another, as Middlesex, before it can be executed there.” 4 William Blackstone,
Commentaries *291-92; see also id. at *291 (“When a warrant is received by the
officer, he is bound to execute it, so far as the jurisdiction of the magistrate and
himself extends.”).

                                        -13-
the Supreme Court has spoken of the need for a “valid warrant” and indicated that

for warrants to be valid they must emanate from “magistrates empowered to

issue” them. United States v. Lefkowitz, 285 U.S. 452, 464 (1932); see also

Thomas M. Cooley, The General Principles of Constitutional Law in the United

States of America 210 (1880) (noting that a warrant must issue from “a court or

magistrate empowered by the law to grant it”). Time and again state and circuit

courts have explained that this means a warrant issued in defiance of positive

law’s restrictions on the territorial reach of the issuing authority will not qualify

as a warrant for Fourth Amendment purposes. 5

      This court has made the same point too. In United States v. Baker, 894

F.2d 1144 (10th Cir. 1990) (per curiam), a state court judge purported to issue a

warrant to conduct a search in “Indian territory” related to a possible crime by a

Native American. Something that the state court judge had no lawful jurisdiction


      5
         See, e.g., State v. Kirkland, 442 S.E.2d 491, 491-92 (Ga. Ct. App. 1994);
State v. Jacob, 924 N.E.2d 410, 415-16 (Ohio Ct. App. 2009); Sanchez v. State,
365 S.W.3d 681, 684-86 (Tex. Crim. App. 2012); United States v. Master, 614
F.3d 236, 241 (6th Cir. 2010); Weinberg v. United States, 126 F.2d 1004, 1006-07
(2d Cir. 1942). In return, the government cites three cases that, it says, support
its view. But not one of these cases references the original meaning of the Fourth
Amendment or contrary historical practice and precedent. Moreover, two of the
cases held that, whether or not a Fourth Amendment violation occurred when a
judge issued a warrant outside his jurisdiction, suppression wasn’t the appropriate
remedy (an analytically separate question I will come to in a moment). See
United States v. $64,000.00 in U.S. Currency, 722 F.2d 239, 246 (5th Cir. 1984);
United States v. Goff, 681 F.2d 1238, 1240 n.1 (9th Cir. 1982). And the third,
United States v. Berkos, 543 F.3d 392 (7th Cir. 2008), found the magistrate judge
had lawful authority to issue a warrant executable outside his district thanks to a
statute wholly inapplicable here. See id. at 396-98.

                                         -14-
to do. In these circumstances, this court had no trouble holding that the state

court’s warrant was no warrant at all for Fourth Amendment purposes. To be

sure, and as the government emphasizes, the facts of our current case are

different. But the government doesn’t suggest why the difference in facts should

make a difference in principle — why we should hold that a warrant issued in

defiance of the court’s jurisdiction should be considered invalid for Fourth

Amendment purposes in one case but not the other. Perhaps the closest the

government comes to suggesting a reason to distinguish Baker is to observe that

neither party there attempted the argument it attempts here — no one tried to

suggest that a warrant executed beyond the jurisdiction of the issuing judge

remains valid under the Fourth Amendment. But I’m still unclear why this should

make a difference when Baker expressly proceeded to decide the issue — and

when even the government itself today acknowledges that the warrant in Baker

“was invalid under the Fourth Amendment.” Aplt. Br. at 39.

      Neither are history and precedent without reason to support them. No

doubt, some might suggest that enforcing territorial boundaries on the

effectiveness of warrants is inefficient and arbitrary. But our whole legal system

is predicated on the notion that good borders make for good government, that

dividing government into separate pieces bounded both in their powers and

geographic reach is of irreplaceable value when it comes to securing the liberty of

the people. See generally Bond v. United States, 131 S. Ct. 2355 (2011); The

                                        -15-
Federalist Nos. 28, 32 (Alexander Hamilton), Nos. 46, 51 (James Madison). Ours

is not supposed to be the government of the Hunger Games with power

centralized in one district, but a government of diffused and divided power, the

better to prevent its abuse. Congress has repeatedly displayed a preference for

geographically divided power in its treatment of the federal judiciary since the

Judiciary Act of 1789 — “almost invariably observ[ing],” for example, the

principle that federal judicial districts should not cross state lines. Richard H.

Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal System

21 (7th ed. 2015). And, sensitive to the fact that magistrate judges do not enjoy

life tenure and other independence-assuring protections found in Article III,

Congress has taken particular care to limit the geographic range of their authority

since the very inception of the office — and it would be more than a little ironic

for an Article III court to deny effect to Congress’s attentive work in this area.

See generally Sharon E. Rush, Federalism, Diversity, Equality, and Article III

Judges: Geography, Identity, and Bias, 79 Mo. L. Rev. 119 (2014); Henry J.

Bourguignon, The Federal Key to the Judiciary Act of 1789, 46 S.C. L. Rev. 647

(1995); Thomas E. Baker, A Catalogue of Judicial Federalism in the United

States, 46 S.C. L. Rev. 835 (1995). 6


      6
         Maybe it goes without saying, but nothing in what I’ve said should be
taken as speaking to the statutory authorities of a district judge to issue a warrant
for an out-of-district search. Unlike magistrate judges, the jurisdiction of district
courts is usually defined by subject matter and parties rather than strictly by

                                         -16-
                                          *

      Persuaded as I am by this point that we lack a valid warrant for Fourth

Amendment purposes, even that doesn’t quite finish the story. The Fourth

Amendment, after all, doesn’t prohibit unwarranted searches but unreasonable

ones. And a warrantless search may still be a reasonable one if the government

can show consent or exigent circumstances. Even when an unreasonable search

does exist, the Supreme Court has explained, we must be persuaded that

“appreciable deterrence” of police misconduct can be had before choosing

suppression as the right remedy for a Fourth Amendment violation. Herring v.

United States, 555 U.S. 135, 141 (2009) (internal quotation mark omitted); United

States v. Karo, 468 U.S. 705, 717 (1984).

      But whatever arguments the government might have once had along these

lines it has long since waived. Choosing to place all its eggs in the warrant

basket, the government has advanced in this appeal no other grounds for reversing

the district court’s holding that a Fourth Amendment violation occurred. It has

not argued consent. It has not argued exigent circumstances. And when it comes

to the question of remedy, it does not dispute that appreciable deterrence can be



geography. See 28 U.S.C. §§ 1331-32 (2012). It’s true, of course, that district
courts have statutorily specified territories, see id. §§ 81-131, and Congress has
designated various (venue) rules for determining which court should hear which
case or controversy, see, e.g., id. § 1391. But those limitations, while still quite
real, are quite different from § 636(a)’s much more exacting territorial restraints
and it is those alone we are asked to pass upon in this case.

                                        -17-
had by permitting suppression in this case. The district court found that any

reasonable officer charged with executing a warrant issued by a Kansas

magistrate judge for a search in Oklahoma should have known it was facially

deficient and that appreciable deterrence of future mistakes along these lines

could be had by ordering suppression. On appeal the government challenges

these assessments not at all.

      So it is that, for all the complications that may lie below the surface in this

case and may still surface for resolution in the future, this appeal remains just as

it appeared from the beginning. The government asks us to resolve but one

question, bold as it is: whether a warrant issued in defiance of positive law’s

jurisdictional limitations on a magistrate judge’s powers remains a warrant for

Fourth Amendment purposes. I would not hesitate to answer that question put to




                                         -18-
us and reply that a warrant like that is no warrant at all. And in that light I am

pleased to join my colleagues in affirming the district court’s judgment. 7




      7
          My colleagues reach the same destination by a different path. Without
passing on the question whether there’s been a violation of § 636(a) or the Fourth
Amendment — they take care to leave those questions open — my colleagues
treat this case as involving at least a violation of Rule 41 and apply the
Pennington prejudice test. In doing so, they proceed to hold that the defendant
has shown prejudice. I regret I am unable to join my colleagues in this approach.
In my view, not only is Pennington dubious law for reasons I’ve already
explained. If forced to apply Pennington, I would have a very difficult time
seeing how the defendant in this case might establish “prejudice” in any
meaningful sense of the term. After all, if the Kansas magistrate judge merely
violated a rule of procedure by issuing a warrant for a search in Oklahoma,
where’s the “prejudice” when everyone agrees an Oklahoma magistrate judge
surely would have issued the very same — and otherwise lawful — warrant if
asked? Neither is it clear to me why, if all we have is a violation of the rules of
procedure, this error wouldn’t also qualify as harmless under Rule 52(a). Having
said all that, I agree entirely with my colleagues that, in comparison to any other
violation of the rules of procedure, there’s something special about the
government’s failure to get right “something as basic as who can issue a warrant.”
Maj. Op. at 12. I simply believe myself compelled to explain why I think that
kind of error is special and basic. And it’s my view that the error is special and
basic because it involves a violation of the magistrate judge’s statutory territorial
jurisdiction under § 636(a) as prescribed by Congress. And that’s the very sort of
jurisdictional limitation on the execution of warrants that the common law and
Fourth Amendment have enforced since time out of mind.

                                         -19-
