CA3: Gov’t gets no relief from waiver of 4A argument under separation of powers

The government waived a potentially valuable suppression argument during the suppression hearing, and the evidence was suppressed. The court of appeals declines to give the government a pass on waiver because it would violate separation of powers. United States v. Dowdell, 2023 U.S. App. LEXIS 13664 (3d Cir. June 2, 2023) (2-1):

The party presentation principle supports our practice of enforcing forfeiture against the government in the same way we do with defendants. See, e.g., Ritter, 416 F.3d at 268. That practice includes enforcing forfeiture against the government even when doing so does not further the purpose of the exclusionary rule. For example, a government failure to argue that a defendant has no Fourth Amendment “standing” is “subject to the ordinary rule that an argument not raised in the district court is [forfeited] on appeal.” United States v. Stearn, 597 F.3d 540, 551 n.11 (3d Cir. 2010). When the government fails to bring a viable Fourth Amendment standing challenge, defendants benefit from the exclusionary rule even when their own Fourth Amendment rights may not have been implicated.

And when, as in this case, the government is a party, categorically excusing forfeiture would raise separation of powers concerns. In a suppression hearing, the government—not the Court—bears the burden of proving there was no Fourth Amendment violation. Ritter, 416 F.3d at 261. Had the District Court intervened here by excusing the Government’s forfeiture and applying the Court’s own novel legal theory, it would have undermined the judiciary’s neutrality and encroached upon the executive branch’s prosecutorial prerogative to argue its case.

For these reasons, we decline the Government’s invitation to create an exception to protect it from forfeiting arguments in suppression hearings. It follows that the District Court did not abuse its discretion in declining to do so as well.