In the course of investigating Daniel Berkos for failure to pay child support, federal investigators discovered that he operated two companies connected to websites hosted in Houston, Texas. The investigators applied for, and received, a search warrant from a district court judge in the Northern District of Illinois ordering the website hosting company to turn over electronic communications related to the two companies.
At trial, Berkos moved to suppress evidence seized from the hosting company, but the judge denied his motion. Berkos eventually entered a conditional guilty plea to the charge, reserving his right to challenge the admission of the electronic communications evidence.
On appeal before the 7th Circuit, Berkos argued that the judge in the Northern District of Illinois improperly issued a search warrant for the seizure of electronic evidence pursuant to 18 U.S.C. section 2703(a) since the hosting company sat within the Southern District of Texas. According to Berkos, the judge acted beyond his authority, thus the district court should have suppressed the evidence uncovered through the search.
Reframing the Issue
The court recast the issue as a question of whether a violation of Rule 41(b) of the Federal Rules of Criminal Procedure justified application of the exclusionary rule.
The court noted initially that its own precedent on the issue held that "violations of federal rules do not justify the exclusion of evidence that has been seized on the basis of probable cause and with advance judicial approval." Since the government did not bring up that argument in its brief, however, the court proceeded to examine the merits of Berkos' claim.
Rule 41(b) provides, in relevant part, that:
Authority to Issue a Warrant. At the request of a federal law enforcement officer or an attorney for the government:
(1) 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[.] (Emphasis added.)
18 U.S.C. 2703(a)
The relevant portion of section 2703(a) reads thusly:
A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant.
The Patriot Act amended section 2703(a) in two ways that are important to this case.
- It altered the language to allow for the issue of warrants "using the procedures described in the Federal Rules of Criminal Procedure" (emphasis added) rather than "under" them.
- It empowered courts "with jurisdiction over the offense under investigation" to grant search warrants, instead of instilling that power solely in courts with geographical jurisdiction over the data sought by the warrant.
The search warrant in question here seems to plainly violate Rule 41(b) since that rule only grants the authority to issue search warrants to judges having geographical jurisdiction over the property listed in the warrant application. Berkos argued that this apparent violation meant that the government had not obtained the warrant "using the procedures described in the Federal Rules of Criminal Procedure" and that the court should have suppressed the evidence obtained through the warrant.
Applying the Rules
The 7th Circuit panel disagreed, however, pointing out two reasons why the argument failed. The court first noted that Rule 41(b) is a substantive provision, not a procedural one. The rule grants authority to issue warrants, but it outlines no procedures for doing so - those provisions are in fact contained in Rule 41(e). Thus, the judge from the Northern District of Illinois had not violated a procedure contained within the Rules, although the Rules did not technically give the judge the authority to issue the warrant.
The court also noted, however, that section 2703(a) contained its own jurisdictional provision that granted courts warrant authority where they have "jurisdiction over the offense." Rule 41, moreover, states that the rule shall "not modify any statute regarding search or seizure, or the issuance and execution of a search warrant in special circumstances." The court found that section 2703(a)'s warrant provision constituted just such a special circumstance since it dealt with records maintained by third parties for a subscriber, rather than by the subscriber themselves.
Thus, in the end, the court found that the judge in the Northern District of Illinois had correctly applied section 2703(a) in granting the search warrant for data held by Berkos' hosting company since the court had jurisdiction over the underlying offense and the judge used the correct procedures contained in the Federal Rules. The court affirmed the denial of Berkos' motion to suppress, and upheld the right of district courts to issue extra-territorial electronic search warrants under the Patriot Act's expansion of section 2703(a).