Saturday, January 09, 2010

Extra-Territorial Warrants and the Fourth Amendment

For those to whom the title of this post is gobblety-gook, I apologize. But I wanted to take a moment to mention that during the last week of 2009, the Second District Court of Appeals (which includes Montgomery, Champaign, Clark, Darke, Greene, and Miami counties) issued an extremely interesting decision on a legal question that is quite murky. So please bear with me while I go all law-geeky.

The facts are quite simple: Miami Township police came to believe that Kevin Jacob had committed a theft offense. (Believe it or not, he allegedly stole several Hummel figurines. Note to would-be thieves: people get very, very possessive about their Hummels.) Eventually, the police decided that Jacob had taken the figurines with him to California, and convinced a Miamisburg judge to issue a warrant to search Jacob (then in California), as well as a residence and two cars also in California. The warrant was sent to and executed by the San Francisco police.

The question before the Second District was this: can an Ohio judge authorize a search in California? In an opinion written by Judge Froelich, the court concludes that it does not. The court's decision relies heavily on the statutes and rules enabling Ohio judges and magistrates to issue warrants, all of which limit the judge's power to his territorial jurisdiction. "Crossing state lines," writes Judge Froelich, "by allowing an Ohio court to determine when California citizens and property are subject to search and seizure crosses [a] constitutional line."

As is my policy, I'll not comment on the merits of the court's decision. I did want to note, though, that one of our local courts of appeals recently wrestled with a particularly thorny constitutional question. For more analysis--including some discussion of how this applies to internet crime issues--read this blog post by Professor Orin Kerr of George Washington Law School.

By the way, because the appellate court determined that the issuance of the warrant was outside of the trial court's authority, Mr. Jacob's conviction was set aside; should the State seek to retry him, it will not be permitted to use the evidence obtained from the California search during a new trial. Given the novelty and importance of the issues raised, I'd be surprised if the Montgomery County prosecutor doesn't seek review before the Ohio Supreme Court (and perhaps ultimately the US Supreme Court).

Mr. Jacob was represented on appeal by Jennifer Getty of the Getty Law Office in Dayton.

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