LaKeith Faulkner & Christopher R. Green, State-Constitutional Departures From the Supreme Court: The Fourth Amendment, 89 Miss. L.J. _ (2020). Abstract:
This article comprehensively canvasses cases in which states have declined to follow, as a matter of state law, cases from the United States Supreme Court interpreting the Fourth Amendment. Considering the 342 Fourth Amendment cases in Harold Spaeth’s database, we collect all of these cases that Westlaw marks as “Not Followed on State Law Grounds.” Of these cases, 125 cases have triggered a total of 306 such state-level disagreements, from 37 states. 17 states have disagreed with United States v. Leon, 16 states with Hodari D., and 10 with Illinois v. Gates. Washington has disagreed with 39 cases, New Jersey 23, Hawaii 22, New Mexico 19, and Pennsylvania 18. Whether a case has been overruled by the Supreme Court itself does not correlate significantly with state-court disagreement, but the existence of dissenting votes is mildly correlated. Nonetheless, more politically-liberal states disagree somewhat more. We find that the states least likely to follow other states’ lead are Texas, Oregon, Hawaii, Washington, New York, California, Florida, Indiana, and Nevada, while the states most likely to match nationwide trends are Delaware, Connecticut, Tennessee, Minnesota, New Mexico, Alaska, New Jersey, Wisconsin, Louisiana, and Pennsylvania.