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 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¶

opinion in¶

Dix, United States v. Burke Pennington took its cue from Judge Friendly’s¶

, 517 F.2d 377 (2d Cir. 1975).¶

See¶

Nonconstitutional Exclusionary Rules in Criminal Procedure¶

L. Rev. 53, 93 (1989). But it turns out that neither Pennington George E.¶

, 27 Am. Crim.¶

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.¶

Scotia v. United States See generally Bank of Nova¶

, 487 U.S. 250, 255 (1988) (“It follows that Rule 52 is, in 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.¶

Search of Scranton Hous. Auth.¶

also Gomez v. United States¶

409, 411 (7th Cir. 2010)¶

(W.D.N.Y. 2003).¶

,¶

See In re¶

487 F. Supp. 2d 530, 534 (M.D. Pa. 2007);¶

, 490 U.S. 858, 865 (1989);¶

; United States v. Douleh Stuart v. Rech see¶

, 603 F.3d¶

, 220 F.R.D. 391, 393-94¶

, 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 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 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. 10756, § 219, 115 Stat. 291 (2001).¶

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¶

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.¶

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 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 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 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 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¶

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.”).¶

5¶

See, e.g.¶

State v. Jacob¶

,¶

State v. Kirkland¶

, 442 S.E.2d 491, 491-92 (Ga. Ct. App. 1994);¶

, 924 N.E.2d 410, 415-16 (Ohio Ct. App. 2009);¶

365 S.W.3d 681, 684-86 (Tex. Crim. App. 2012);¶

F.3d 236, 241 (6th Cir. 2010);¶

Sanchez v. State¶

United States v. Master¶

Weinberg v. United States¶

,¶

, 614¶

, 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).¶

United States v. $64,000.00 in U.S. Currency¶

United States v. Goff See¶

, 722 F.2d 239, 246 (5th Cir. 1984);¶

, 681 F.2d 1238, 1240 n.1 (9th Cir. 1982). And the third,¶

United States v. Berkos¶

had¶

, 543 F.3d 392 (7th Cir. 2008), found the magistrate judge¶

lawful authority to issue a warrant executable outside his district thanks to a¶

statute wholly inapplicable here.¶

See id.¶

at 396-98.¶

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 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¶

*¶

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 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 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¶

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.¶

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¶

explained. If forced to apply dubious law for reasons I’ve already 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.¶