A warrant without warrant: or, the magistrate's reach

United States v. Krueger, No. 14-3035 (10th Cir. Nov. 10, 2015).

Rule 41 of the Federal Rules of Criminal Procedure governs federal search warrants. It says that a federal magistrate judge can issue a warrant to search for property, but the property generally has to be located within the magistrate judge’s district. 

Here, a magistrate judge in the District of Kansas issued a warrant to search a computer in the Western District of Oklahoma. On that computer, agents found evidence that the defendant, Zachary Krueger, had downloaded and traded child pornography. 

The government now concedes that the magistrate judge didn’t have authority to issue the search warrant because the searched property was outside his district. It even concedes that the warrant was so deficient that the good-faith exception to the exclusionary rule shouldn’t apply. It argues, however, that the evidence it found shouldn’t be suppressed, because Krueger hasn’t shown the necessary “prejudice” flowing from the warrant’s facial defect. 

The Tenth Circuit disagrees. All that Krueger needs to show, says the court, is that the magistrate judge who issued the warrant wouldn’t have issued it if Rule 41 had been followed. And it’s pretty clear the magistrate judge wouldn’t have issued the warrant if he had realized that he lacked authority under Rule 41 to do so. 

Judge Gorsuch pens an engaging opinion that concurs in the judgment. He notes that when Congress granted power to federal magistrate judges by statute, it granted that power over only three geographic areas: within the magistrate judge’s district, at any other place that the district court may function, or “elsewhere as authorized by law.” The Western District of Oklahoma counted as none of those three places for a magistrate judge in Kansas, so the judge lacked jurisdiction to issue the warrant. Because a warrant issued without jurisdiction is a nullity, the agents who searched Krueger’s computer violated the Fourth Amendment. And the remedy for this violation must be suppression of the evidence, simply because the government has forfeited any argument that suppression is not the remedy.