Lawyers need law: judicial federalism, state courts, and lawyers in search and seizure cases.

Author:Price, Richard S.
Position:VI. Expectations through VIII. Conclusion, with footnotes and appendices, p. 1427-1458

    The basic argument of this article centers on a claim that lawyers respond to the law (signals) they are given--that lawyers need law. If this claim has merit, then we should see differences over time and between states. With the external signal, we should see state constitutional arguments emerge as the U.S. Supreme Court retrenches rights protections. But the substance of these retrenchment-influenced arguments is likely to be focused on policy critiques of the change in federal law, probably with significant reliance on federal dissenters. As a state court offers greater internal encouragement, however, we are likely to see a divergence in form and substance from retrenchment based arguments. The arguments should become more independent and less clearly reactive to federal changes, tracking instead to the signals and growing body of state law.


    1. Aggregate Experience

      Turning to basic aggregate data, Figure 1 presents the percentage of federal and state arguments for all years. Variation is rather high, with a low of only 7% state arguments in Ohio to 50% in Oregon. Given the fact that federal retrenchment was consistent and equally applicable to all four states, this wide degree of variation must be due to another influence. As presented above, the most dramatic difference in these four states is in how the state high courts approached judicial federalism. As we might expect, the Ohio Supreme Court showed little interest in judicial federalism and thus Ohio claimants rarely presented such claims. While the New York Court of Appeals demonstrated some interest in expanding state search protections, it gave little guidance as to why it expanded protection in some cases and not others, and New York claimants primarily offered arguments only in cases of fairly clear federal retrenchment. In Oregon and Washington, however, where state constitutional methodology was relatively explicit, claimants responded with a high degree of state search arguments.

      Figure 2 demonstrates this even more clearly. It shows the same breakdown of arguments by percentage but separates the data into two time periods, 1970 to 1984 and 1986 to 2000, for two reasons. First, 1984 is a good cutoff point because the U.S. Supreme Court issued two of its most important retrenchment decisions in 1983 and 1984. (236) Second, as detailed above, the internal signals in Washington and Oregon became distinct and relatively concrete in the early- to mid-1980s. (237) The data show the expected evidence of change in search claims; after 1984 there was a significant increase in state constitutional activity in all states except Ohio. Again, however, the variation between states is dramatic, with an impressive 72% of search arguments being state based in Oregon after 1984. The variation in internal signals seems to be the only reasonable explanation assuming that lawyer quality does not vary (238) between states in a significant manner and that all states saw reasonably similar search issues. I now turn to an examination of the states individually to explore how the claimants presented state claims over the time covered.

    2. Ohio

      As already discussed, the Ohio Supreme Court showed little interest in judicial federalism and was especially resistant to expansion of criminal procedural rights. (240) The one exception to this resistance occurred in State u. Brown and hardly represented a paradigm of independent state analysis. Brown involved a vehicle search incident to an arrest and the court relied on federal law in nullifying the search but included a state basis just in case: "If [the U.S. Supreme Court's decision in] Belton does stand for the proposition that a police officer may conduct a detailed search of an automobile solely because he has arrested one of its occupants, on any charge, we decline to adopt its rule." (241) No discussion of the basis for this rejection occurred beyond a footnote noting that state courts can provide greater rights protections. (242) Subsequent cases did not follow up on this minimal invocation of judicial federalism. For example, on remand from a U.S. Supreme Court reversal of a prior search decision that at least cited to the state provision along with the Fourth Amendment, the court noted the lengthy history of state cases adopting a principle of "harmoniz[ing]" the meaning of federal and state search provisions. (243) In 2002, the court reversed even the anemic statement in Brown, concluding that there were insufficient "persuasive reasons to depart from the principle that [the state and federal provisions] should be harmonized whenever possible." (244) The internal signals then were minimal and anemic, and the law provided to Ohio lawyers continued to focus on federal doctrine alone.

      While a limited degree of state constitutional search claims were expected, the low number--there were only four state search claims in the sample--is surprising given the strong degree of federal retrenchment. In many cases the issues revolved around fairly standard and stable Fourth Amendment claims such as the Terry stop-and-frisk rule. But other cases involved issues where state claims may have been likely. For example, one claimant complained of a jail's policy of strip-searching newly arrested individuals and argued the issue as a matter of federal law only, with no mention or citation to the state provision (245) despite the fact that the U.S. Supreme Court had upheld a similar policy. (246) Of the four state search claims offered, none were well developed and much of that confusion resulted from the court's own jurisprudence. Perhaps the clearest state argument, though brief, attacked the good faith exception. In State v. Wilmoth, (241) claimant relied primarily on distinguishing federal case law but provided a brief state claim that "[t]he Court should reject the cost-benefit analysis utilized by the United States Supreme Court and adopt" the prior protective federal doctrine. (248) The claimant also relied upon a rather confusing precedent, State v. Burkholder, (249) where the syllabus stated that the decision rested solely on the state provision, but the text of the opinion cited both the state and federal provision and primarily relied upon the latter. (250) In fact, in 1995, a claimant with a nearly identical case repeatedly disclaimed any intent to seek a broader degree of rights protection, arguing that federal law provided all the necessary protection. (251) The other search claims were minimalist in nature. One claimant attacked a statute allowing warrantless inspection of pharmaceutical records, primarily focusing on a lengthy federal argument distinguishing a negative federal precedent, (252) but closing with an assertion, unsupported by any significant argument, that the precedent should be evaded under state provision if the federal claim failed:

      [T]he provision of the Ohio Constitution against unreasonable searches and seizures operates independently of any provision of the United States Constitution. To this end, the Court of Appeals was required to review the issues under the Ohio Constitution. In this regard, this Court need not be limited by the United States Supreme Court decisions. It is free to expand the protection afforded an individual beyond those granted by the United States Constitution. (253) Domestic violence advocates challenged telephone company policies allowing easier identification of customers relying primarily on federal precedent and, because it was fairly negative, the claimants attempted to shoehorn in a stronger state rule by noting some earlier discussion of federal and state law together as implying a stronger rule. (254) The court's anemic statement of a state rule in Brown was used to support a similarly undeveloped assertion in a car stop case but with no discussion of the reasoning for a broader state rule (255)--though this may be unsurprising given that the court in Brown also did not provide any reasoning for its brief assertion.

      One particularly brazen claimant laid the blame for the weak development of state search arguments at the foot of the Ohio Supreme Court. (256) While Arnold may have declared "the Ohio Constitution is a document of independent force," the Ohio Supreme Court had recently disclaimed any broader protection under the state search provision, holding that it "should be harmonized and exist co-extensively with the protections of the Fourth Amendment." (257) The court's consistent refusal to treat the state search provision independently gave lawyers no guidance on how to make such arguments or any indication that the court wanted to hear such issues. Thus, lawyers provided the legal arguments they had been trained to provide and utilized the law their state courts gave them to work with--that is, federal constitutional law.

    3. New York

      As Figure 2 demonstrates, there was an increase in the proportion of state constitutional search claims after 1984. Unlike the Ohio Supreme Court, the New York Court of Appeals demonstrated a willingness to expand state search protection at times, but it refused to provide any clear guidance on why some claims were accepted while others were not. (258) This left litigants in New York with some state constitutional law to draw upon but little guidance on when or why to deploy that law. Litigant behavior demonstrates that state constitutional law was deployed almost exclusively to combat particular instances of federal retrenchment while drawing on the few state precedents to support policy arguments against following federal retrenchment.

      For example, in People u. Griminger the claimant urged the Court of Appeals to reject the totality of the circumstances test for judging probable cause determinations in search warrants. (259) The court had previously rejected the test for warrantless arrests (260) but had refused to reach the question of application of the test to search warrants...

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