Background
James Morgan, a Wisconsin resident and chemistry student, spent years building an arsenal of homemade weapons—including pipe bombs with construction-grade nails, acid thrayers, flamethrowers, and chlorine gas devices—which he documented extensively on social media. His online posts included tutorials on constructing weapons, calls for militia formation, and explicit threats of violence against the government, minority groups, and law enforcement. In May 2023, Morgan messaged his girlfriend on Gab that if the government came “for the guns,” he would create chlorine gas to “defeat them without firing a single shot.”
Based on the warrant affidavit containing over twenty photos and screenshots of Morgan’s social media posts, a magistrate judge in the Eastern District of Wisconsin issued a search warrant in December 2023. Critically, the trailer Morgan lived in had moved from the Eastern District (Whitewater) to the Western District (Janesville) before the warrant’s execution. Officers executed the warrant on December 21, 2023, and recovered six unregistered pipe bombs from a safe in Morgan’s trailer, with four containing construction-grade nails. A grand jury in the Western District indicted Morgan for unlawfully possessing destructive devices not registered to the National Firearms Registration and Transfer Record in violation of 26 U.S.C. § 5861(d).
Morgan moved to suppress the evidence, arguing the Eastern District magistrate judge lacked authority under Federal Rule of Criminal Procedure 41(b) to issue a warrant for execution outside that district. He also moved to dismiss the indictment, contending the charging statute exceeded Congress’s enumerated taxing power. The district court denied both motions, and Morgan pled guilty while preserving his appellate rights.
The Court’s Holding
The Seventh Circuit affirmed, holding that the magistrate judge had authority under Rule 41(b)(3) to issue the out-of-district warrant. Rule 41(b)(3) creates an exception to the general rule that magistrate judges’ warrant authority is confined to their district: in an investigation of domestic terrorism, a magistrate judge with authority in any district where terrorism-related activities may have occurred may issue a warrant for property outside that district. The court identified as a question of first impression whether Rule 41(b)(3) requires probable cause or the lesser “reason to believe” standard. However, the court declined to resolve this because the government’s affidavit satisfied the higher probable cause standard.
Applying the statutory definition of domestic terrorism from 18 U.S.C. § 2331(5), the court found probable cause that Morgan’s activities involved acts dangerous to human life appearing to be intended to: (1) intimidate or coerce a civilian population through demonstrated acid weapons and explicit calls to “chemically burn commies alive”; (2) influence government policy through “calls to arms” and messages about using chlorine gas to make the government “really scared”; and (3) affect government conduct by assassination or mass destruction through militia formation rhetoric and threats against federal officers. Standing alone, Morgan’s vile online speech would be protected; but the clear nexus between his statements and his active development of dangerous offensive weapons—coupled with his demonstrated intent to use them—supplied probable cause for a domestic terrorism investigation.
Morgan’s Franks v. Delaware challenge also failed. He argued the affidavit omitted facts undermining probable cause, including 2020 law enforcement conclusions that he posed no “imminent, specific threat” and earlier database notations that he was not a threat to life. The court found these omissions immaterial because Morgan’s activity had demonstrably escalated over time, and by 2023, officers possessed access to his Gab account with threats to gas federal officers—making earlier threat assessments of marginal relevance. The affiant specialized in domestic terrorism investigations and had no apparent motive to mislead the court, and the omitted facts would not have prevented warrant issuance.
Key Takeaways
- Rule 41(b)(3) authorizes out-of-district warrants in domestic terrorism investigations when the affidavit establishes that terrorism-related activities may have occurred in the issuing magistrate’s district.
- The statutory definition of domestic terrorism encompasses acts dangerous to human life appearing intended to intimidate civilians, influence government policy, or affect government conduct—and all three prongs were satisfied here.
- A nexus between ideological speech and active weapon development, coupled with explicit threats of use, supports probable cause for a domestic terrorism investigation despite the First Amendment status of the speech itself.
- Under Franks, omitted facts about earlier threat assessments are immaterial where an investigation has demonstrably escalated and more recent evidence reflects heightened danger.
- The National Firearms Act remains constitutional under Congress’s taxing power; Supreme Court and Circuit precedent foreclose constitutional challenges based on alternative functional analyses.
Why It Matters
This decision provides the Seventh Circuit’s first substantive analysis of Rule 41(b)(3)’s domestic terrorism exception—a question of first impression for the circuit. By requiring only that probable cause support a finding of domestic terrorism (rather than mandating a lesser “reason to believe” standard), the court clarifies that magistrate judges have broad authority to authorize searches across district boundaries in terrorism investigations. This expansion of warrant authority reflects courts’ recognition that terrorism investigations often cross jurisdictional lines and should not be hampered by venue restrictions tied to where a suspect’s property happens to be located at the time of warrant issuance.
The decision also demonstrates how courts evaluate “domestic terrorism” under § 2331(5), moving beyond abstract ideological speech to examine the concrete nexus between violent rhetoric and weapon development. For law enforcement investigating suspected domestic extremism, the opinion validates an investigative approach that aggregates social media threats, weapons documentation, and evidence of active construction into a coherent terrorism narrative—even when individual pieces might be separately protected or less probative. Finally, by reaffirming Sonzinsky’s holding that the National Firearms Act constitutes a valid exercise of the taxing power, the court signals that recent Supreme Court decisions on constitutional limits of taxation will not unsettle decades of settled law on federal firearms regulation.