State v. Wheaton

¶1specially concurring.

¶2I

¶3Even though there is no disagreement on the Court that the search here was reasonable under the fourth amendment as interpreted in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), some guidance to the practicing bar is in order on the question of how to raise a state constitutional argument. The following comments are not intended to be an exhaustive review of the literature or to even to provide a hint on how the Court might eventually decide how to handle such cases. Rather, they are offered to stimulate thought and discussion on our state constitution and to offer some guidance to the bar on how one might fully develop an independent state constitutional claim.

¶4II

¶5In 1986, the supreme court of Washington was faced with the same problem we encountered here: how to deal with an argument that the state constitution provided more protection against searches and seizures than the federal constitution. Instead of summarily dismissing the argument, that court set forth “six neutral nonexclusive criteria” relevant to determining whether in a given situation the state constitution should be interpreted independently from the federal constitution. Those criteria are set forth below along with the Washington court’s comments:

1. The textual language of the State Constitution. The text of the state constitution may provide cogent grounds for a decision different from that which would be arrived at under the Federal Constitution. It may be more explicit or it may have no precise federal counterpart at all.

2. Significant differences in the texts of parallel provisions of the federal and state constitutions. Such differences may also warrant reliance on the state constitution. Even where parallel provisions of the two constitutions do not have meaningful differences, other relevant provisions of the state constitution may require that the state constitution be interpreted differently.

3. State constitutional and common law history. This may reflect an intention to confer greater protection from the state government than the federal constitution affords from the federal government. The history of the adoption of a particular state constitutional provision may reveal an intention that will support reading the provision independently of federal law.

4. Preexisting state law. Previously established bodies of state law, including statutory law, may also bear on the granting of distinctive state constitutional rights. State law may be responsive to concerns of its citizens long before they are addressed by analogous constitutional claims. Preexisting law can thus help to define the scope of a constitutional right later established.

5. Differences in structure between the federal and state constitutions. The former is a grant of enumerated powers to the federal government, and the latter serves to limit the sovereign *408power which inheres directly in the people and indirectly in their elected representatives. Hence the explicit affirmation of fundamental rights in our state constitution may be seen as a guarantee of those rights rather than as a restriction on them.

6. Matters of particular state interest or local concern. Is the subject matter local in character, or does there appear to be a need for national uniformity? The former may be more appropriately addressed by resorting to the state constitution.

¶6State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 812-813 (1986).

¶7The Washington court requires counsel to address the Gunwallfactors whenever a state constitutional issue is raised. State v. Wethered, 110 Wash.2d 466, 755 P.2d 797, 801 (1988).

¶8Other relevant areas of inquiry, not among the Gunwallfactors, might be:1

¶97. The interpretation of analogous state and federal provisions at the time of the adoption of the state constitution. How similar language was interpreted at the time of the constitutional convention might indicate the intent of the framers.

¶108. Interpretations of similar provisions in other state constitutions. The experience of other state courts in interpreting similar provisions in their state constitutions may be of some guidance to this Court. This is especially true of those provisions which were adopted as our own at the constitutional convention.

¶119. The history of the interpretation given to the analogous federal constitutional provision since the adoption of the state constitution. Oftentimes the question of whether to independently interpret the state constitution will arise in case immediately following the announcement of a new rule of constitutional law from the United States Supreme Court. It may be that this Court will decide to not follow federal precedent if the area of law is in a state of rapid change. We may instead prefer to develop our own rule of law which can be relied upon by the citizenry as well as the bench and bar of our state.

¶1210.The practical effects of the competing alternative rules. When the United States Supreme Court overrules a prior federal precedent, there is no reason why the state constitutional interpretation must automatically follow the new federal rule. An examination of how the alternative rules will further the purpose of the state constitutional provision, and the effect each rule will have on those Idaho citizens affected by the United States Supreme Court’s decision will aid this Court in deciding whether to adopt an independent state analysis.

¶13State courts are free to examine federal constitutional law on its merits and decide whether to accept the change as our own, to continue to follow the prior rule or to adopt a new rule entirely (subject of course to the dictates of the fourteenth amendment). For example, several state supreme courts have refused to adopt the “totality of the circumstances” test for the sufficiency of a search warrant which was announced in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), because they preferred the older “AguilarSpinelli ”2 test which Gatesoverruled.3See e.g. Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548, 556 (1985). There the Massachusetts Supreme Judicial Counsel rejected the totality of the circumstances test because it concluded that the two-pronged Aguilar-Spinelli test was more precise and therefore easier for the *409police in the field to apply. See also State v. Jackson, 102 Wash.2d 432, 688 P.2d 136, 141 (1984); State v. Jones, 706 P.2d 317, 321-24 (Alaska 1985) (rebutting the six propositions on which the United States Supreme Court justified its rejection of the Aguilar-Spinelli test); State v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 57, 524 N.E.2d 409, 411 (1988) (“The Aguilar-Spinelli two-pronged inquiry has proven a satisfactory method of providing reasonable assurance that probable cause determinations are based on information derived from a credible source with firsthand information, and we are not convinced that the Gatestest offers a satisfactory alternative.”). The New Jersey Supreme Court blended the totality of the circumstances test with the Aguilar-Spinelli test to form its own test. State v. Novembrino, 105 N.J. 95, 519 A.2d 820, 836-37 (1987). As was once said, this Court need not be “a satellite in the eccentric orbiting of the High Court.” State v. Lang, 105 Idaho 683, 691, 672 P.2d 561, 569 (1983) (Bistline, J. dissenting).

¶14Ill

¶15It is hoped that this Court will someday see fit to provide some guidance to the bench and bar on how to address state constitutional claims. Until that day, the foregoing comments are offered up as a modest contribution towards the development of an independent state constitutional analysis.