The Fourth Amendment's Role in Enhancing Prosecutorial Power
Unquestionably, the strength of the government's evidence increases the prosecutor's ability to extract a plea from the defendant with fewer concessions. Predictably, studies have shown that, along with the number of charges filed, the availability of physical evidence increases the probability that an accused will plead guilty. But, as examined in the section above, the Fourth Amendment presents a less-than-robust barrier to the prosecutor's access to even illegally obtained evidence.
Suppression motions are filed in a minority of cases. And, even when filed, the odds of suppression based upon a successful Fourth Amendment challenge are relatively low. The prosecutor's already strong hand in plea negotiations, thus, is strengthened further by the likely failure of any suppression request. This strengthening can be particularly striking in cases involving possessory crimes. For example, in a straightforward possession with intent to distribute case where drugs are taken off the accused during a Terry stop, suppression of the drugs may be determinative. However, in light of the numerous exceptions to the warrant requirement, even aggressive or unsavory police conduct often falls well within constitutional limits. And even where police conduct violates the amendment, unconstitutionally derived evidence nonetheless may be admissible as a result of the Court's constriction of the exclusion remedy.
Indeed, decades of studies show an abysmal success rate for suppression motions. A 1979 study done by the General Accounting Office found that “16% of the defendants whose cases were accepted for prosecution filed some type of suppression motion, 11% cited the fourth amendment. However, only 0.4% of declined defendants' cases were declined due to fourth amendment search or seizure problems.” ) The prospect of a successful suppression motion has not improved much in the intervening years.
A 1983 study of 7,500 felony cases in Pennsylvania, Illinois, and Michigan determined that motions to suppress physical evidence were successful in less than 1 percent of the cases filed. Indeed, a 1991 survey of defense attorneys in one jurisdiction asserted that judges in the area “‘always upheld searches regardless of what errors or lack of probable cause were found.’ As a result, members of the defense bar rarely made search and seizure an issue.” When motions were filed, they accomplished the goal of suppression in just 0.9 percent of all the cases studied.Putting aside the question of defense counsel's ineffectiveness for failing to file motions, the prosecution, unfettered by any significant fear of suppression, maintains the advantage in plea negotiations. An accused facing the potential of significant prison time and dismal odds of suppression may find a negotiated plea the only logical choice.
Finally, in much the same way that racial disparities exist across the criminal justice system, the enhanced pressure to plead has racial impacts as well. While studies have found that blacks are somewhat statistically less likely to plead guilty, when they do, they receive a lower-value bargain for their plea than comparable white offenders. For example, whites are 25 percent more likely than blacks to have their top charge dropped or reduced during the negotiation process. Similarly, for defendants facing felony charges, whites are 15 percent more likely than blacks to be able to resolve their cases with a misdemeanor conviction. And, in the misdemeanor space, whites are 75 percent more likely either to avoid conviction altogether or to secure a conviction that does not carry a risk of jail time. The increased likelihood that blacks will be convicted or face jail time is a compounding disability: A criminal record and history of incarceration are factors that will be considered negatively during any future contacts with the criminal justice system. As Sasha Natapoff has observed, oftentimes “the misdemeanor process is the gateway to the criminal system.” It is in this way that a straight line can be drawn from the expanded power of the police over black and brown bodies to the expanded power of prosecutors over black and brown lives.
