A court’s territorial jurisdiction is its power over cases arising in or involving persons within a defined geographical unit.” … Because Palm Beach is beyond the municipal court’s territorial jurisdiction, the warrant was unambiguously deficient on its face.

 

State v. Worthan

2024 – Ohio – 21

Second District Appellate Court

Montgomery County, Ohio

January 5, 2024

 

Carlos Initiates a High-Speed Pursuit

The challenged search warrant was supported by an affidavit from Detective, an employee of a police department in the Second District Appellate Court.

Note:  Both the law enforcement agency and detective are identified in the case.  I have chosen to redact each from this article.

The Detective averred that Mr. Carlos Worthan had fled an attempted traffic stop on the night of Wednesday October 27, 2021. A high-speed chase ensued as police followed him through Huber Heights to near the intersection of Needmore Road and Wagner-Ford Road, where a pursuing officer struck another vehicle. Police lost sight of Mr. Worthan’s vehicle, which later was found outside of his apartment on Riverside Drive. Detective’s affidavit included a cell-phone number that belonged to Mr. Worthan.

Search Warrant Affidavit …

Detective averred that she was investigating the offense of failure to comply in violation of O.R.C. §2921.331. She requested a warrant to search for the following items of property associated with Mr. Worthan’s cellphone number from October 27 to October 28, 2021:

Subscriber and account information, to wit: name, address, call detail records to include local and long distance telephone connection records and records of session times and durations; text, SMS and MMS detail records to include content and records of times sent and received; IP session and destination information to include content and records of times sent and received; pictures; length of service and types of service utilized; telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; cellular telephone devise identifier (ESN/IMED/MEID); and source of payment for such service (including any credit card or bank account number) that corresponds to the telephone number; any other telephone numbers registered to the same address as the telephone number, Global Positioning System (GPS) precision location information and cell site triangulation information from the cellular telephone device assigned number.

Cell Phone Data was Located in North Palm Beach Florida

Detective averred that the foregoing items of property or information were located on Mr. Worthan’s cell phone (which police did not possess and the location of which was unknown to law enforcement) or were located “on computers or electronic storage devices” owned, operated, or controlled by AT&T Global, which had its legal compliance office in North Palm Beach, Florida and which was a cell-phone carrier accessible to AT&T Wireless serviced cell phones located in Montgomery County, Ohio.

Search Warrant was Issued by the Municipal Court

The municipal court issued the requested warrant on October 28, 2021. The warrant authorized police to enter the places described (AT&T Global’s computers or electronic storage devices) within three days and to search for the items identified above. The warrant stated: “Within the territorial jurisdiction of this Court, you are authorized to search the property described.” During a hearing on Mr. Worthan’s suppression motion, Detective testified that she e-mailed the warrant to AT&T in Palm Beach, Florida. Less than two hours after obtaining the warrant, Detective filed a “return” with the following notation: “Unknown when AT&T will respond with data request.”

Data was Located in North Palm Beach Florida

On cross-examination, Detective acknowledged that no law-enforcement officer entered AT&T’s offices in Palm Beach to execute the warrant. She explained that she listed AT&T’s compliance office in Florida as the location of the search because “that’s where the data is stored.” Detective maintained that she had executed the warrant by having “contact” with AT&T’s Florida office. She sent the search warrant to AT&T in Florida and waited for AT&T to “pull the data” itself. Later in her testimony, Detective again confirmed that she had sought and obtained “a warrant that authorized proper police authority to seize items of property which may be found in North Palm Beach, Florida” Detective stated, “Yes, the data was in North Palm Beach, Florida.”

Trial Court Held that the Search Warrant was Issued Outside of the Territorial Jurisdiction

In sustaining Mr. Worthan’s motion, the trial court held that the municipal court’s issuance of a warrant to be executed beyond its territorial jurisdiction constituted a fundamental violation of Crim.R. 41(A) and required suppression of the evidence obtained. The State has appealed pursuant to O.R.C. §2945.67(A) and Crim.R. 12(K).

Is the Data Located Anywhere the Phone is Located?

The State insists that the municipal court possessed authority to issue the search warrant. In support, the State reasons that Mr. Worthan’s cell phone and the data it contained were located in Montgomery County. Although the data was stored in Florida, the State asserts that it “technically” also was located in Montgomery County as it could be accessed from “basically anywhere.” The State also argues that detective Detective executed the warrant in Montgomery County by e-mailing it to AT&T in Florida.

Should the Search Warrant Have been Issued for Extra-Territorial Jurisdiction?

In addition, the State advances a policy argument, claiming logistical issues would arise if all warrants for AT&T cell-phone data had to be issued in Palm Beach. The State further cites the federal Stored Communications Act (SCA), which does not require an officer’s physical presence to serve or execute a search warrant and which allows phone companies to compile and turn over data. The State notes too that some jurisdictions, including courts in Tennessee and New York, have upheld extra-territorial warrants for cell-phone records on the basis that the records either could have been accessed in the issuing state or that the warrant was executed, and a search occurred, when the warrant was sent from the issuing state. Finally, the State distinguishes State v. Jacob, 2009-Ohio-7048, which the trial court cited, and argues that State v. Nettles, 2020-Ohio-768, a wiretapping case, supports upholding the validity of the search warrant.

Criminal Rule 41

In the present case, the pertinent facts are undisputed. The issue before us is a legal one. Pursuant to Crim.R. 41(A)(1), a search warrant “may be issued by a judge of a court of record to search and seize property located within the court’s territorial jurisdiction.” On appeal, the State does not challenge the trial court’s determination that a fundamental violation of Crim.R. 41(A)(1), such as the one found here, requires suppression of the evidence obtained. The State instead insists that no violation occurred because the municipal court possessed authority to issue the warrant.

Is Cell Phone Data Located ‘Everywhere’?

The State first asserts that the warrant was executed in Montgomery County, within the municipal court’s territorial jurisdiction, because Mr. Worthan’s cell phone and the data it contained were located there and the data could have been accessed there. The State reasons that cell-phone data is unlike traditional evidence in the sense that it exists everywhere and can be retrieved from any location. We find these arguments to be unpersuasive. As an initial matter, the record does not reveal the location of Mr. Worthan’s cell phone. At the time of the hearing, police had not obtained it. Nor did any suppression-hearing testimony establish that the data in fact could have been accessed from Montgomery County. Police did not have Mr. Worthan’s phone, and the only evidence on the data issue was Detective’s testimony that it was stored in Florida. Detective’s warrant affidavit described AT&T as a cell service provider with service accessible to customers in Montgomery County, but she did not aver that AT&T physically stored any data in Ohio.

The Data was Only Located in North Palm Beach Florida

But even if we accept the unestablished propositions that Mr. Worthan’s cell phone and its data were in Ohio and that the data theoretically could have been searched for and seized in Ohio, the fact remains that it was not. Detective acknowledged that the data was stored in Florida and that AT&T searched for and “pull[ed] the data” there. The fact that the data originated in Ohio and conceivably could have been accessed from Montgomery County does not negate what actually occurred. Notwithstanding any “could-have” arguments, the trial court correctly found that the municipal court in fact issued a warrant to search for evidence in Florida.

Service of a Search Warrant and Execution of a Search Warrant are Distinguishable

We are equally unpersuaded by the State’s argument that Detective executed the warrant in Montgomery County by e-mailing it from there to AT&T in Florida. A New York trial court adopted this position in People v. Williams, 79 Misc.3d 809, 818, (2023), reasoning that a detective “searched for defendant’s cell records” in Albany, New York “when he faxed the warrant to AT&T” in Florida. The New York court analogized to wiretapping warrants, which are executed when police overhear or record a human voice and access transferred signals. Id. We are unpersuaded by this analogy. A wiretapping warrant authorizes listening, so execution of the warrant occurs when the listening happens. The hearing or recording of a voice is the search. In Mr. Worthan’s case, however, no search occurred, and the warrant was not executed, until someone accessed AT&T’s data-storage devices in Florida. The State’s argument about e-mailing the warrant to Florida erroneously equates service with execution.

Will the North Palm Beach Florida Judges be Overworked?

The State next advances a policy argument, claiming that Palm Beach judges will be inundated with warrant requests if all search warrants for AT&T cell-phone data must be issued there. Our response is three-fold. First, even if the State’s concern is valid, it is irrelevant to the legal issue before us, namely whether Crim.R. 41(A) authorized the municipal court to issue its warrant.

Hey General Assembly … HELP!

Second, the General Assembly potentially could avoid any logistical problem by enacting legislation authorizing Ohio courts to issue extra-territorial warrants for cell phone data … This process avoids situations such as the municipal court in the present case employing traditional warrant language to authorize Detective to perform a search that she personally never conducted and never intended to conduct.

The Detective had Another Option …

Third, even absent action by the General Assembly, it appears that the State could have avoided securing a warrant in Palm Beach by obtaining an SCA warrant from an Ohio common pleas court rather than obtaining a traditional warrant from the municipal court. The federal legislation authorizes an SCA warrant for cell-phone data to be issued by either a state or federal “court of competent jurisdiction.” 18 U.S.C. 2703. The SCA defines a “court of competent jurisdiction” to include, inter alia, any federal district court, magistrate judge of such a court, or federal court of appeals with jurisdiction over the offense being investigated. 18 U.S.C. 2711(3)(A)(i). Under the SCA, a “court of competent jurisdiction” also 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)(B).

Good Faith Doctrine is Inapplicable

Finally, we reasoned “that the magistrate’s lack of authority to issue the search warrant was a fundamental constitutional violation that could not be cured” by reliance on the good-faith exception, which we characterized as “peripheral” under the circumstances.

Mr. Worthan Remained in Montgomery County … Does that Matter?

In the present case, the State does not argue that any violation of Crim.R. 41(A) was not a fundamental one. Nor does it advance a good-faith analysis. Instead, the State distinguishes Jacob and takes the position that no violation of Crim.R. 41(A) occurred in Mr. Worthan’s case. The State reasons that Jacob involved searching people and places physically located in California whereas the present case involves searching cellphone data located in Montgomery County. The State asserts that Jacob is further distinguishable because the warrant in Mr. Worthan’s case in fact was executed by police in Montgomery County. The State also argues that “[L]aw enforcement was still reviewing and searching the data within Montgomery County and the phone itself and the data it contains [were] still within Montgomery County.” The State then reasons that no constitutional violation occurred because “Mr. Worthan is an Ohio citizen, with property located in Ohio, with data on the property accessible from basically anywhere.” According to the State, “[I]t would make less sense for a Florida judge to determine when an Ohio citizen and their cell phone are subject to search and seizure than it would for an Ohio judge to make that determination.”

Contrast with Established Case Law

We find the foregoing arguments to be unpersuasive. It is true that Jacob involved searching physical locations in California, including a home. But Mr. Worthan’s case similarly involved searching physical places in Florida. According to the warrant, they included “computers or electronic storage devices,” where Detective Detective testified that the data was stored. We also reject the State’s argument that Jacob is distinguishable because the warrant in Mr. Worthan’s case was executed in Montgomery County whereas the warrant in Jacob was executed in California. If the State were correct about Detective executing the warrant when she e-mailed it to AT&T in Florida, the same could be said about police executing the warrant in Jacob when they faxed it to San Francisco. But we recognized in Jacob that the warrant was executed when police conducted their search in California. Similarly, the warrant here was executed when AT&T’s computers and storage devices were searched in Florida.

The Warrant was Not Served in Montgomery County

As for the State’s assertion that “[L]aw enforcement was still reviewing and searching the data within Montgomery County and the phone itself and the data it contains [were] still within Montgomery County,” the record does not reveal any law-enforcement search of data occurring within Montgomery County. As Detective explained, AT&T retrieved the data itself after being served with the warrant and then sent the data to police in Montgomery County. With regard to Mr. Worthan’s phone and its data still being present in Montgomery County, we note again that police never obtained the phone. But even if the phone did remain here, police did not search it here, or anywhere, pursuant to the warrant.

It also may be true that Mr. Worthan is an Ohio citizen who possesses cellphone data located in Ohio. As explained above, however, detective obtained a warrant to search for that data in Florida on computers and electronic-storage devices maintained by AT&T in Palm Beach. In short, the inescapable fact is that the municipal court issued a warrant to search for and seize evidence located outside of its territorial jurisdiction. On that point, Jacob is indistinguishable.

[T]he warrant was unambiguously deficient on its face.

We note too that Detective Detective’s affidavit sought a warrant to search AT&T’s computers and data storage devices in Florida because, according to her suppression hearing testimony, “that’s where the data is stored.”By its own terms, however, the warrant the municipal court issued only authorized a search for that data “[W]ithin the territorial jurisdiction” of the municipal court. “A court’s territorial jurisdiction is its power over cases arising in or involving persons within a defined geographical unit.” Jacob at ¶ 38 (Grady, J., concurring). Because Palm Beach is beyond the municipal court’s territorial jurisdiction, the warrant was unambiguously deficient on its face.

Data Interception is Distinguishable from Data Storage

Finally, the State argues State v. Nettles, 2020-Ohio-768, a wiretapping case, supports upholding the validity of the municipal court’s search warrant. In Nettles, a statute, O.R.C. §2933.53(A), authorized a common-pleas court to issue a wiretapping warrant in the county “in which the interception is to take place.” A Sandusky County judge issued a warrant authorizing government agents sitting in Lucas County to listen to cell-phone calls made from Sandusky County. The defendant argued that the warrant was invalid as it needed to be issued in Lucas County, the location where the interception occurred. Based on the nature of interception technology, the Ohio Supreme Court held that interception occurred in Lucas County, where the agents listened, and in Sandusky County, where the defendant spoke. Nettles at ¶ 11. After explaining how cell-phone calls are intercepted, the Nettles court reasoned that the government, with the aid of Verizon, intercepted the call when the government captured and redirected the contents of the call where the speaker used the phone and also intercepted the call when agents overheard the call at their listening post. Because the first interception occurred in Sandusky County, the Ohio Supreme Court upheld the validity of the warrant.

Conclusion

Unlike Nettles, Mr. Worthan’s case does not involve a wiretapping warrant authorizing agents in Palm Beach to listen to phone calls originating in Montgomery County. The State recognizes the distinction but argues that the rationale of Nettles supports finding jurisdiction in Mr. Worthan’s case, “where the phone where the data is being taken from is located, which would be in Montgomery County.” Here, however, the data was located in Palm Beach. Detective testified that AT&T retrieved the data from computers and electronic-storage devices located there. Unlike Nettles, the data was not retrieved from both Montgomery County and Palm Beach.

Holding

For the foregoing reasons, the trial court correctly sustained Mr. Worthan’s suppression motion. The State’s assignment of error is overruled.

The judgment of the Montgomery County Common Pleas Court is affirmed.

Information for this article was obtained from State v. Worthan, 2024 – Ohio – 21.

State v. Worthan 2024 – Ohio – 21 was issued by the Second District Appellate Court on January 5, 2024 and is binding in the following Ohio Counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.

Lessons Learned:

  1. Cell Phone Data Search Warrants – The detective and prosecutor both made reasonable legal arguments for the search warrant to be upheld as the phone was located within the territorial jurisdiction of the court, however, the data was not. Consequently, when law enforcement requests cell phone data the search warrant must be issued in the territorial jurisdiction of where the data is stored.
  2. Option to File the Search Warrant in Ohio – Law enforcement may obtain a search warrant for cell phone data under the federal Stored Communications Act (SCA). Under the SCA, a “court of competent jurisdiction” also 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)(B). The federal legislation authorizes an SCA warrant for cell-phone data to be issued by either a state or federal “court of competent jurisdiction.” 18 U.S.C. 2703. This includes the Court of Common Pleas.
  3. Help! This case should be motivation for the Ohio General Assembly to act and create clear legislation for Ohio Detectives to obtain cell phone data with ‘extra-territorial’ jurisdiction.
  4. Hardest Job In America – This case underscores … once again … why law enforcement is THE hardest job in America.

Does your agency train on the Search Warrants?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.