States in ‘Lockstep’ with the Fourth Amendment May Not Be Locked

The new federalism in state constitutional interpretation is alive and well when it comes to the law of search and seizure — even, to some extent, in states that have pegged their Fourth Amendment analogues to federal law.

In a recent article, I examined the ability of each state high court to be its own interpreter, potentially reading its respective constitution to be more rights protective than the federal Fourth Amendment. In particular, I showed that the high court of Massachusetts has played a leading role not only in protecting the privacy of that state’s people, but also providing an example sometimes followed by the U.S. Supreme Court, then protecting us all. In another article, Joshua Windham of the Institute for Justice chronicled such developments with respect to a particularly pernicious (and misnamed) Fourth Amendment doctrine known as “open fields.” And Anthony Sanders, also at the Institute for Justice, has highlighted how Minnesota deviates from the federal rule in both substance and remedy.

But are there states in which this simply cannot be? Are there states in which the U.S. Supreme Court’s interpretation of the Fourth Amendment is binding as state constitutional law, no matter what a state’s own supreme court justices might wish? In other words, are there states necessarily in “lockstep” with the federal Fourth Amendment?

Sort of. Allow me to explain that lawyerly answer.

It is a state high court’s obligation to interpret its own constitution; indeed, there is no other court to which it can shirk that responsibility, and no other court can declare a state high court’s own interpretation wrong. In this, each state high court is supreme. Thus, even if a court has not independently interpreted its constitutional text for many, many years, it still could do so tomorrow. Consider, for example, the state of Iowa. Beginning with statehood in late 1846, the Iowa Supreme Court did not interpret its state constitutional analogue differently from the Fourth Amendment for its first 150 years. But then, in 2000, the court chiseled a first fracture, rejecting a Fourth Amendment exception to the exclusionary rule. Once a monolith is fractured, more cracks are likely to follow. And the Iowa Supreme Court has indeed carved out further differences, even as dissenting justices complain them to be “chest-thumping assertion[s] of judicial power.” Chest-thumping or no, interpreting the Iowa constitution is the Iowa Supreme Court’s prerogative.

But are there state supreme courts without this prerogative? Consider California, which in 1982 added a “Truth-in-Evidence” provision to its constitution as a matter of “victim’s rights.” The provision means that, unless a supermajority of the California legislature enacts law to the contrary, there is no suppression of evidence in California courts unless that suppression is required by the federal Constitution. So, yes, in California, when it comes to suppression of evidence in search and seizure, criminal defendants are limited to what the Fourth Amendment provides.

This limitation is significant. Of course, what the Californian people take they can give, and so just as the lockstep limitation was adopted by the state’s people through ballot initiative, it could be eliminated by another vote of the same. Moreover, the provision explicitly allows for legislative override. Finally, the provision limits only the suppression of evidence in criminal cases, not the substantive interpretation of state constitutional rights. California was a forerunner in rejecting what would become privacy-annihilating Fourth Amendment principles (in particular the so-called “third-party doctrine,” under which information confidentially shared loses constitutional protection), and that substantive law endures.

But consider Florida, which also in 1982 added the following provision to its state constitution’s search and seizure protection: “This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” That is a declaration of lockstep interpretation by any measure, and thus the Florida Supreme Court acknowledges it is “constitutionally bound on search and seizure issues to follow the decisions of the United States Supreme Court.”

Floridians can so choose. Personally, I think it a most unwise choice — why should the people of Florida abdicate their constitutional authority to the justices of the U.S. Supreme Court? Still, again, it is a choice they are free to make. Yet even in Florida things are not as “lockstep” as they first appear. Like the high court in California, the Florida Supreme Court early interpreted its state analogue more generously than the Fourth Amendment, and Floridians have another constitutional right to privacy: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” That final phrase certainly limits its scope, but the Florida Supreme Court has used this section to provide greater-than-Fourth-Amendment protections.

What’s the upshot? Every state high court has the authority to interpret its constitution to be more rights protective than the federal Fourth Amendment, unless the state has explicitly chosen to abdicate that right. And even when a state has so chosen, we must critically analyze just what portions of the right were renounced, as all others remain. Finally, it would be the state’s prerogative to take back any rights so abdicated. In short, independent state interpretation in constitutional search and seizure jurisprudence is currently available to most Americans, and can at any time be once again made available to them all, making true the framers’ intention of “double security” against government intrusion.

Stephen Henderson is the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma.