Unripe Fruit of the Poisonous Tree
In this case, the United States applied for a court order under the Stored Communications Act to compel cell phone providers to disclose location information about particular phones suspected in criminal investigations. The magistrate judge denied the applications on the ground that he expected that the orders would be executed in ways that will violate the Fourth Amendment.
While there are several amicus in support of the magistrate's refusal, Orin argues against it based on ripeness.
Some readers might wonder why I filed an amicus brief in this case. After all, relatively few people care about ripeness. The doctrine comes off as a technicality. And filing a brief on one’s own is pretty unusual. But I filed the brief because the stakes of the question strike me as enormous. In my view, the ripeness of the constitutional question is far more important than whether the Fourth Amendment is held to apply to cell-site records under some assumed set of facts. The reason is that Congress has created a statutory system of electronic surveillance law in the last 25 years that requires many statutory court orders at nearly every stage of every case. As I explained in a recent post:
One of the major differences between traditional criminal investigations and network surveillance investigations is that network investigations generally require lots of lawyers and lots of court orders. In traditional criminal investigations, lawyers and judges play a relatively minor role. The cops run the show, and lawyers and judges mostly get involved only if a warrant is obtained. The police might watch a suspect, stop and detain him, frisk him for weapons, and make an arrest all without lawyers or judges. Review of the legality of the investigation is ex post: The defendant moves to suppress the evidence and argues that the past conduct was unconstitutional.
In other words, the argument is that the only question for the magistrate to consider is whether the showing in support of the order (which is not a search warrant, but merely a statutorily required order) is sufficient, and if so, then it should be ordered. What the magistrate has no business doing is predicting facts that will render the government's actions violative of the Fourth Amendment.
In other words, if the showing is made, the order issues and any potential Fourth Amendment violation is only ripe for review after the fact.
Orin makes a persuasive argument that the powers of an Article III judge, limited to determining a case or controversy, do not permit him to anticipate a Fourth Amendment violation and refuse to act to prevent it.
Article III's limitations on federal court jurisdiction are just as much a part of the Constitution as the Fourth Amendment. Your argument seems to be that following the spirit of one part of the Constitution requires violating another part of the Constitution — that is, ensuring the enforcement of the Fourth Amendment requires ignoring ripeness and the case or controversy requirements. There's a lot of precedent that disagrees with that view, such as City of Los Angeles v. Lyons (1985), Warshak v. United States (6th Cir. 2008) (en banc), which impose ripeness and case-or-controversy limitations on the resolution of Fourth Amendment claims.
Not being particularly slavish to precedent, there is a point to be made that this conflict between different parts of the Constitution amounts to a political choice of which you prefer, which matters more. That some court cared less about preventing unconstitutional search and seizure than limiting its jurisdiction only means that courts are forever constrained by some old judicial choice if one is slavish about adhering to precedent, right or wrong. Others will argue that bad precedent begs to be reversed.
While I find Orin's argument well founded, I (not surprisingly) disagree with his premise. Once the jurisdiction of the court is invoked for the purpose of obtaining an order (or a warrant, recognizing that the two are different and require differing levels of support), the neutral magistrate becomes the gatekeeper of his order. The judge didn't ask that the government bring the case before him, but once there, it demands attention.
The rejection of the government's application in In Re Applications of the United States for Historical Cell-Site Data, the matter before the magistrate judge in this case, was based on the judge's view that the order could not be executed in a manner consistent with the Fourth Amendment. The government, naturally, argues that the order will be executed in a manner consistent with the Fourth Amendment. The judge believes otherwise.
As Orin argues, the judge can't be 100% certain that a violation of the Fourth Amendment will occur, since it hasn't happened yet. Who is he, then, to predict the future and anticipate a violation? More importantly, even if the judge is correct, so what? By this analysis, the courts aren't in the business of stopping the government from violating the Constitution, but rather deciding whether they did after the fact and then smacking the government for doing so.
To use an imperfect analogy, picture an agent, executing an arrest warrant, pointing his gun at the head of an unarmed, docile, suspect 50 feet away. There is maybe a 20% chance the agent's bullet will find its target, but if it does, it will embed itself right behind the suspects left eyeball. Does the judge close his eyes tight and mutter to himself this is none of his business until after the body lay still and cold?
Having brought the case before the court, asking the judge to invoke his discretion to determine whether the showing meets the threshold for approval, the government presents all issues implied in the execution of the order. The same discretion exercised in deciding that the showing is adequate remains in force in deciding that the execution of the order for which it's seeking approval will impinge on any other aspect of law.
There is no mandate that the judge turn off his discretion when it comes to aspects the government prefers he not consider. The case or controversy was brought before him, not just the tiniest piece the government would have him decide, precluding him from its consideration in the fuller context.
In other words, you can't ask the magistrate to exercise discretion and approve an order, but to otherwise ignore the same sound discretion when reasonably believing that the execution of the order will violate the Constitution. When the government invokes the court's discretion, it invokes all of it, not just the pieces it wants. And to expect a judge to approve an order which he reasonably believes to violate the Constitution is to ask the judiciary to become complicit in the reasonably anticipated wrong.
The courts should not knowingly do wrong. The courts should not become complicit in a reasonably foreseeable wrong. They are the gatekeepers, and have the inherent power to be confident that what they are approving isn't a violation of the Constitution.