Pronouncements of the United States Supreme Court in the Criminal Law Field: 1976-1977 Term

JurisdictionColorado,United States
CitationVol. 6 No. 9 Pg. 1516
Publication year1977
6 Colo.Law. 1516
Colorado Lawyer

1977, September, Pg. 1516. Pronouncements of the United States Supreme Court in the Criminal Law Field: 1976-1977 Term


Vol. 6, No. 9, Pg. 1516

Pronouncements of the United States Supreme Court in the Criminal Law Field: 1976-1977 Term

by Justice William H. Erickson

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Justice William H. Erickson is a member of the Colorado Supreme Court.



The Revolutionary constitutions of most of the colonies were prefaced by a Bill of Rights. At that time, state courts were considered the protectors of individual freedom from encroachment by the federal government. The Bill of Rights of the United States Constitution did not come into being until long after the Constitution was ratified, and those Amendments were formulated from all but identical provisions which were included in the colonial constitutions.

The Reconstruction Period following the Civil War brought about the adoption of the Fourteenth Amendment and 42 U.S.C. § 1983. The extent to which these new constitutional and statutory mandates would constitute federal directives to the states was not fully known until recent years. Compare the Slaughter House cases, 83 U.S. (16 Wall.) 36 (1875); Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963); Civil Rights: Monroe v. Pape, 365 U.S. 167 (1961). Using these new-found powers, the federal courts became increasingly involved in the protection of individual rights. As the federal Bill of Rights was selectively incorporated into the Fourteenth Amendment, the involvement of the federal courts in state court criminal proceedings reached a climax during the years of the Warren Court.

The Burger Court is beginning to recognize that the enforcement of federal constitutional rights can be entrusted to the states. The limitation of the scope of Warren Court decisions [see Harris v. New York, 401 U.S. 222 (1972); Oregon v. Mathiason, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)]; cutting back habeas corpus jurisdiction [see Wainwright v. Sykes, Section XIV (B) infra; Stone v. Powell, 428 U.S. 465 (1976); Estelle v. Williams, 425 U.S. 501 (1976)]; making use of 42 U.S.C. § 1983 more difficult (see Section XIV (A) infra); and the denial of a federal forum to defendants on some issues [Stone v. Powell, supra, and Preiser v. Rodriguez, 411 U.S. 475 (1973)], has reduced the federal burden without denying defendants a right to be heard.

As a result, those seeking protection of fundamental rights will be looking to state courts and relying upon state constitutions for enforcement of their claims. Although state courts cannot give less protection than the federally guaranteed minimum established by the United States Constitution, they may use their


respective state constitutional provisions to give more protection. Some constitutional provisions provide an adequate and independent ground of decision, precluding federal review, Jankovich v. Indiana Toll Road Commission, 379 U.S. 487 (1965). Dissenting justices on the Court have urged state courts to exercise their power of interpreting state constitutions (see Oregon v Mathiason, infra, Section III, Marshall, J., dissenting United States v. Washington, infra, Section III, Brennan J., dissenting).

A striking recent example of the use of a state constitution can be seen in a reaction of the South Dakota Supreme Court to the Supreme Court's decision in South Dakota v. Opperman, 428 U.S. 364 (1976). Defendant's automobile had been towed to a police parking lot because of a parking violation. There, a routine inventory search of the car brought about discovery of marijuana in the glove compartment. Thereafter, the defendant was convicted of possession of marijuana. The South Dakota court reversed his conviction, holding that because of the lack of a warrant or exigent circumstances, the search was in violation of the Fourth Amendment of the United States Constitution, State v. Opperman, 228 N.W.2d 152 (1975). The Supreme Court reversed, South Dakota v. Opperman, supra, declaring that because the police had conducted no more than a routine inventory of the car's contents, not undertaken to gain evidence, the search was reasonable. On rehearing, the South Dakota court relied on Article VI, § 11 of the South Dakota Constitution, almost identical with the Fourth Amendment of the United States Constitution, and invalidated the conviction, reaffirming "the rationale of our original decision as a matter of state constitutional law," State v. Opperman, 247 N.W.2d 673, 675 (S.D. 1976).

The California Supreme Court is perhaps the best known of those state courts actively deciding cases on the basis of state constitutions. In People v. Anderson, 100 Cal. Rptr. 152, 493 P.2s 880 (1972), the California court held that the death penalty, because it was seldom imposed and had been abandoned by much of the civilized world, violated Art. I, § 6 (now § 17) of the California Constitution, which forbids the infliction of "cruel or unusual punishment" (emphasis added). In so doing, California presaged Furman v. Georgia, 408 U.S. 238 (1972), by some months. Shortly thereafter, the Supreme Court held that a California petitioner's challenge to the death penalty was moot in light of Anderson, supra. Aikens v. California, 406 U.S. 813(1972). [A note on the limits on the powers of state courts: eight months after the California court's decision in Anderson, it was overruled by an amendment to the California Constitution (see Calif. Const., Art. I, § 27).]

The Colorado Supreme Court has indicated that Art. II, § 7 of the Colorado Constitution, nearly identical with the Fourth Amendment of the United States Constitution, provides stricter standards for searches incident to arrest than does the Federal Constitution. Compare United States v. Robinson, 414 U.S. 218 (1973), with People v. Clyne, ___ Colo. ___, 541 P.2d71 (1975), citing People v. Brisendine, 119 Cal. Rptr. 315,531 P.2d 1099 (1975).

State courts may also extend the protections given by the federal Bill of Rights beyond the specific holdings of the Supreme Court into areas not yet considered by the Court. The California Supreme Court, in People v. Dorado, 42 Cal. Rptr. 169, 398 P.2d 361 (1965), held that Massiah v. United States, 377 U.S. 201 (1964), and Escobedo v. Illinois, 378 U.S. 478 (1964), together required that a defendant be advised of his right to counsel before his incriminating statements could be used against him. The California court reached this decision


eighteen months before the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966).

State courts may decide that the Supreme Court has struck the proper balance between the rights of individuals and the needs of law enforcement. However, state constitutions are again being recognized for their watchdog provisions which were enacted in colonial times to protect the citizens of the individual states. "With the federal laws of our double protections weakened, our liberties cannot survive if the states betray the trust the Court has put in them." [Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). See also Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Virginia L. Rev. 873 (1976); Note, The New Federalism: Toward a Principled Interpretation of the State Constitution, 29 Stan. L. Rev. 297 (1977); Isakson v. Rickey, 550 P.2d 359 (Alaska Sup. Ct. 1976); Hasegawa v. Maui Pineapple Co., 52 Hawaii 327, 475 P.2d 679 (1970); Bulova Watch Co. v. Brand Distributors, Inc., 385 N.C. 467, 206 S.E.2d 141 (1974).]

While Supreme Court interpretations of federal constitutional rights are persuasive authority for state courts when they seek to interpret similar provisions in state constitutions, they are not binding authority, and

[S]tate court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees. (Brennan, supra.)




1. Headnote to Obscenity.

Obscenity "is an area in which there are few eternal verities," Miller v. California, 413 U.S. 15, 23 (1973). The truth of this statement has been borne out by the varied and shifting analyses by which the Court has attempted to delineate that area of speech which is unprotected because it is obscene.

The Court's basic definition of obscenity approved in Roth v. United States, 354 U.S. 476, 487, n. 20 (1957):

A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.

It proved to be exceedingly difficult to obtain constitutionally valid convictions under this definition, and in Miller the Court laid down three basic guidelines which the trier of fact must follow in determining whether speech is obscene:

(a) Whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Id. at 24.)

Part (c) of this test relaxed the requirement articulated in...

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