Fourth Amendment Lags Behind State Search and Seizure Provisions 

Since the 1970s, one of the areas where state supreme courts have been most willing to break with U.S. Supreme Court precedent is in the law of search and seizure. Indeed, while Justice William Brennan is often credited with jump-starting a first-generation “judicial federalism” movement in the late 1970s, Brennan himself pointed to several earlier state search and seizure cases for inspiration. This week, we have two new pieces that examine different aspects of the why and how of state departures from Fourth Amendment law, with plenty of lessons for thinking about state constitutions more generally. 

University of Oklahoma Professor Stephen Henderson starts us off with an overview of the “double security” offered by state and federal constitutions when it comes to criminal procedure. While this has always been part of our constitutional structure, he looks at how state search and seizure jurisprudence has matured in recent years, including its influence on federal law.

New technology has been one important piece of the story. In 2014, for example, the Massachusetts high court ruled that the police needed a warrant to obtain certain cell phone records that provided comprehensive location information about a person’s past movements. Four years later, the U.S. Supreme Court adopted the same standard under the Fourth Amendment in Carpenter v. United States. It’s one of many instances, Henderson notes, where state constitutional rulings have hovered in the background while the Supreme Court considered a novel question. Indeed, I suspect one reason why states have been on the search and seizure vanguard is exactly because Fourth Amendment frameworks often lag in responding to new technologies.

Our next piece highlights an emerging state trend: the Institute for Justice’s Joshua Windham writes about how a growing number of states have rejected the “open fields” exception, a hundred-year-old doctrine that denies Fourth Amendment protection to private land beyond the area immediately surrounding a person’s home (the curtilage, for all those criminal procedure fans). Despite the name, this exception applies to far more than fields. A recent Institute for Justice study found that at least 96 percent of private land falls outside the curtilage — and therefore outside the protections of the Fourth Amendment.

Earlier this month, an intermediate court in Tennessee rejected the open fields exception in a suit brought by the Institute for Justice. In the case, the plaintiffs complained that game wardens had entered their private land and planted cameras to look for evidence of hunting violations. As is often the case when state courts decline to proceed in lockstep with the federal constitution, the court highlighted textual differences between the Fourth Amendment and its Tennessee counterpart, Article I, Section 7. Tennessee prohibits unreasonable searches of “possessions,” a term that doesn’t appear in the Fourth Amendment and that the court found included real property like land that’s put to actual use. 

As Windham notes, courts in six other states have likewise rejected the open fields doctrine under their state constitutions, and there are cases pending in Louisiana, Pennsylvania, and Virginia. Several (but not all) of these states have similar “possessions” language in their constitutions. In total, more than a dozen state constitutions protect possessions. Look for more litigation to come.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.