New Law Review Article: Beyond the Judicial Fourth Amendment: The Prosecutor’s Role

Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, __ UC Davis L. Rev. __ (2014), Forthcoming. Abstract:

Scholarly discussion of the Fourth Amendment focuses narrowly on judicial enforcement and the exclusionary rule. This Article takes a different approach: recognizing that prosecutors have a co-equal responsibility to enforce the Fourth Amendment. More specifically, prosecutors have a constitutional and ethical duty not to use evidence that they conclude was unconstitutionally obtained even if that evidence is admissible — the duty of administrative suppression. Instead of analyzing whether evidence would likely be deemed admissible by a court, prosecutors should instead analyze whether the evidence in their cases was gathered unconstitutionally and act accordingly.

Scholars have ignored that as the Supreme Court has constricted the scope of the exclusionary rule over the past 40 years it has narrowed only the scope of the judicial remedy and not the Fourth Amendment right. Drawing on the theory of constitutional underenforcement most prominently developed by Larry Sager, this Article argues that when the Court constricted the judicial remedy it left prosecutors and the rest of the executive branch solely responsible for enforcing the full breadth of the constitutional norm. The full breadth of the Fourth Amendment norm continues to prohibit the executive branch from using unconstitutionally-obtained evidence even though judicial suppression is not always appropriate. The prosecutor’s duty of administrative suppression also prevents Fourth Amendment rights from being marginalized in an administrative system of criminal justice in which most cases end in guilty pleas before suppression motions are filed.

Prosecutors’ ethical responsibilities provide an additional basis for prosecutors’ duty of administrative suppression. Refusing to countenance constitutional violations by the police will protect citizens’ constitutional rights and promote crime control. That administrative suppression would promote crime control relies on the procedural justice notion that citizens’ perception of their government officials’ legitimacy plays the most significant role in their willingness to comply with the law and cooperate with law enforcement. For prosecutors to refuse to use the fruits of a constitutional violation and instead condemn the violation through administrative suppression will promote government legitimacy. Ultimately, prosecutors — not just courts and police — are constitutional actors with Fourth Amendment obligations.