Federalism and the Florida Constitution: the self-inflicted wounds of thrown-away independence from the control of the U.S. Supreme Court.

• Author: Marks, Jr., Thomas C.

"[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards." (1)

For rather obvious reasons, fears for the health of our federal system of government have seemed to focus on the apparently ever-expanding grasp of the federal government on matters that once were items of the states' exercise of their inherent police power. Thus, for example, even incremental setbacks to the rapacious use by Congress of its power to regulate commerce between the states (2) should be cheered by defenders of federalism.

One would, then, hardly expect to find a state actually surrendering some of its power to the federal government, specifically the highest court of that government. Nevertheless, Florida has seen its constitution amended to do this, not once, but twice. (3) Both instances involved legislatively proposed changes to the state constitution that took away the power of Florida courts--ultimately the Florida Supreme Court--to interpret two provisions of the Florida Constitution's Declaration of Rights. The amendments removed provisions that Florida courts could interpret as guaranteeing more protection against the state than did the generally equivalent provisions of the Federal Constitution as interpreted by the U.S. Supreme Court. (4) Both occurred, incidentally, under circumstances where it could be argued that the electorate did not understand that for which it voted. (5)

In 1981, the Florida Legislature became concerned, if not alarmed, by the decision of the Florida Supreme Court in State v. Sarmiento. (6) There, the court issued a significant decision under Article I, Section 12 of the Florida Constitution--the search and seizure provision. (7) The court held that while an individual did not have a reasonable, expectation of privacy in a conversation held in his home because it might later be repeated, that individual did have a reasonable expectation of privacy against "unknown eavesdroppers [that] might clandestinely participate in that conversation and later reveal its contents." (8) The U.S. Supreme Court held on two prior occasions that such police conduct did not violate the Fourth Amendment. (9)

The Florida Legislature was also concerned that the developing law of good faith exceptions to the search and seizure exclusionary rule established by the U.S. Supreme Court would not be permitted to function in Florida due to the specific language of the Florida Constitution. (10) The Fourth Amendment's exclusionary rule is, of course, a product of judicial creation. (11)

Therefore, the legislature placed on the ballot in the 1982 General Election a proposed amendment to article I, section 12, which would tie both that section's limitations on search and seizure and its explicit exclusionary rule to the Fourth Amendment as interpreted by the U.S. Supreme Court. The amendment, in its entirety, read:

ARTICLE I

DECLARATION OF RIGHTS:

Section 12. Searches and seizures. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution. (12) The proposed amendment was approved and the usefulness of article I, section 12 as a potential source of greater protection than the Fourth Amendment--as interpreted by the U.S. Supreme Court--was destroyed.

Indeed, consider for a moment what is actually left of article I, section 12. If the search and seizure issue before the Florida Supreme Court (13) has been previously resolved by the U.S. Supreme Court under the Fourth Amendment, then article I, section 12 has no useful purpose. If the issue has not been already resolved by the U.S. Supreme Court, then the Florida Supreme Court is as free to interpret the Fourth Amendment as the court interprets article I, section 12. (14) If, in such a situation, the court interprets the Fourth Amendment and review is sought of and accepted by the U.S. Supreme Court and it disagrees with the Florida Supreme Court's interpretation, on remand, the Florida Supreme Court is not at liberty to interpret--as could the high court of other states (15)--the Florida Constitution to provide greater protection than the U.S. Supreme Court's interpretation of the Fourth Amendment. (16)

Only tattered remnants of this once potent example of federalism still linger in the Florida courts. If, in the above example of no controlling U.S. Supreme Court precedent, the Florida Supreme Court decided a case based solely on the Florida Constitution, no basis for federal review would exist. (17) Thus, that interpretation of article I, section 12 would survive as the law of Florida until, and only until, that search and seizure issue is decided by a contrary interpretation of the Fourth Amendment by the U.S. Supreme Court. The effects of the amendment to article I, section 12 have been--for a time--held at bay, and nothing more.

The reader should note that article I, section 12 uses the word "affidavit" (18) rather than the words "[o]ath or affirmation," which are used in the Fourth Amendment. (19) Swartz v. State (20)--a Florida decision that pre-dates the amendments to article I, section 12--suggests that the difference is real. Probable cause must be found in the affidavit itself--no supplemental oral testimony is allowed. (21) Given the graphic difference in wording, this may be a difference between the two constitutions that survives the amendment to article I, section 12.

The Florida Constitution also contains an explicit guarantee of privacy. In pertinent part, article I, section 23 states that "[e]very 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." (22) As a matter of language this would seem to include search and seizure, and thus, present the possibility of outflanking the changes to article I, section 12. The Florida Supreme Court has ruled, however, that inasmuch as article I, section 23 was adopted prior to the changes in article I, section 12, those changes prevail, and therefore, article I, section 23 cannot be used in search and seizure matters. (23) A fairly strong possibility exists, however, for one exception.

In a situation where the U.S. Supreme Court finds the Fourth Amendment--and thus article I, section 12--inapplicable to a particular pattern of search and seizure because the person seeking to avail himself of constitutional protection has no "reasonable expectation of privacy," (24) then article I, section 23 apparently can be used. The theory--it can be argued--is that if the search and seizure provisions are taken off the board, and thus, simply do not apply, then the coast is ostensibly clear to use article I, section 23 since its measure of "reasonable expectation of privacy" is more generous than the concept under the constitutional search and seizure provisions. (25)

Tatters indeed of a proud history!

One can go back to at least 1922 and find the Florida Supreme Court concerned with protecting the populace from unreasonable searches and seizures. At a time when the Fourth Amendment did not apply to the states, (26) Chief Justice Browne of the Florida Supreme Court commented that:

Whatever other state courts may do, the Supreme Court of Florida will guard and protect the constitutional rights, privileges, and immunities of the people, as sacredly as the federal courts.... For one to acquire illegally, or illegally to possess, intoxicating liquors is a crime ... that generally affects a few persons in a restricted locality. To permit an officer of the state to acquire evidence illegally and in violation of sacred constitutional guaranties, and to use the illegally acquired evidence in the prosecution of the person who illegally acquired the intoxicants, strikes at the very foundation of the administration of justice, and where such practices prevail make law enforcement a mockery. In this era, when earnest-thinking men and women are ardently trying to arouse public sentiment on the subject of strict law enforcement, it would seem most meet and proper for the courts to set the example, and not sanction law-breaking and constitutional violation in order to obtain testimony against another law-breaker. Better the mob and the Ku-Klux, than a conviction obtained in a temple of justice by testimony illegally acquired by agents of the government and officers of the law. (27) Certainly this mindset--together with the principles of federalism--has been frustrated. Former U.S. Supreme Court Chief Justice, Warren Burger, was a staunch opponent of state court decisions like that in Sarmiento and voiced his opposition in his concurring opinion in Florida v. Casal. (28) There the Court dismissed "as improvidently granted" a writ of certiorari because "it appear[ed] that the judgment of the [Florida Supreme Court] ... rested on independent and adequate state grounds." (29) Although the Chief Justice questioned whether the grounds were independent (30) he did write "to emphasize that this Court has decided that Florida law, and not federal law or any decision of this Court, is...