{"id":12622,"date":"2014-07-20T13:12:15","date_gmt":"2014-07-20T18:12:15","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=12622"},"modified":"2014-07-23T09:25:40","modified_gmt":"2014-07-23T14:25:40","slug":"ia-rejects-scotus-probation-and-parole-search-exception-on-state-constitution","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=12622","title":{"rendered":"IA rejects SCOTUS probation and parole search exception on state constitution"},"content":{"rendered":"

On state constitutional grounds, Iowa refuses to follow SCOTUS on probation and parole searches. A search warrant is required without consent. \u201cFor the above reasons, we think Cullison remains good law. We decline to overrule it. The United States Supreme Court in Griffin, Knights, and Samson has engaged in innovations that significantly reduce the protections of the Warrant Clause of the Fourth Amendment. We decline to join the retreat under the Iowa Constitution. We hold that under article I, section 8, the warrant requirement has full applicability to home searches of both probationers and parolees by law enforcement. As a result, because evidence seized in this case was obtained unlawfully, the motion to suppress should have been granted. We again note that we do not address the legality of home visits or other types of supervision by probation officers pursuant to their ordinary functions, nor do we address the question of whether a probationer may validly consent to warrantless home searches.\u201d State v. Short<\/a>, 2014 Iowa Sup. LEXIS 86 (July 18, 2014). The court wrote many pages on why they were departing. Just part 4 here on the states being the primary protectors of privacy rights:
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4. The diminution in substance of federal rights resulting from incorporation triggers renewal of independent state constitutional law.<\/em> Beginning with Gitlow v. New York, the United States Supreme Court began to incorporate against the states various provisions of the Bill of Rights under the Due Process Clause of the Fourteenth Amendment. 268 U.S. 652, 666, 45 S. Ct. 625, 630, 69 L. Ed. 1138, 1145 (1925) (“[W]e may and do assume that freedom of speech and of the press\u2014which are protected by the First Amendment from abridgment by Congress\u2014are among the fundamental rights . . . protected by the Due Process Clause of the Fourteenth Amendment from impairment by the states.”). The incorporation of the Bill of Rights, however, created a tendency for the United States Supreme Court to dilute the substance of the rights themselves. See Baldon, 829 N.W.2d at 813 (“In the period following the incorporation revolution ending with Mapp, there is no doubt the strength and scope of the Fourth Amendment’s protection has been dramatically reduced by the United States Supreme Court.”). Any review of the relationship between state and federal constitutional interpretation that fails to understand or ignores this fundamental and powerful legal riptide is flawed.<\/p>\n

In a series of opinions, Justice Harlan presciently predicted that one of the unintended consequences of the extension of federal constitutional rights to the states would be their dilution. Williams v. Florida, 399 U.S. 117, 136, 90 S. Ct. 1914, 1925, 26 L. Ed. 2d 446, 474 (1970) (Harlan, J., dissenting) (recognizing the decision to allow a six person jury “simply reflects the lowest common denominator in the scope and function of the right to trial by jury”); Duncan v. Louisiana, 391 U.S. 145, 182 n.21, 88 S. Ct. 1444, 1466 n.21, 20 L. Ed. 2d 491, 514 n.21 (1968) (Harlan, J., dissenting) (noting “a major danger of the ‘incorporation’ approach\u2014that provisions of the Bill of Rights may be watered down in the needless pursuit of uniformity”); Ker v. California, 374 U.S. 23, 45, 83 S. Ct. 1623, 1646, 10 L. Ed. 2d 726, 745 (1963) (Harlan, J., concurring in judgment) (pondering whether the United States Supreme Court “[was] prepared to relax Fourth Amendment standards in order to avoid unduly fettering the States”).<\/p>\n

We have seen the federalism discount predicted by Justice Harlan operate with full force in the search and seizure context. Since incorporation, the relatively clear requirements of the Warrant Clause have been overridden by vague notions of reasonableness, the role of consent has changed from its narrow beginnings to a more protean formulation, and the exclusionary rule has been substantially eroded by a good faith exception. See California v. Acevedo, 500 U.S. 565, 582-83, 111 S. Ct. 1982, 1992-93, 114 L. Ed. 2d 619, 636 (1991) (Scalia, J., concurring in judgment) (recognizing development of nearly two dozen exceptions to the warrant requirement); United States v. Leon, 468 U.S. 897, 923-24, 104 S. Ct. 3405, 3421, 82 L. Ed. 2d 677, 699 (1984) (announcing the “good faith exception” to the exclusionary rule); Schneckloth v. Bustamonte, 412 U.S. 218, 234-46, 93 S. Ct. 2041, 2056-58, 36 L. Ed. 2d 854, 872-74 (1973) (departing from the narrow consent doctrine established in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938)). See generally Baldon, 829 N.W.2d at 812-14 (“Nothing in the Supreme Court’s incorporation doctrine as it related to the Fourth Amendment altered the independent nature of state constitutional provisions related to search and seizure . . . . Incorporation of the provisions of the Bill of Rights of the United States Constitution against the states through the Due Process Clause of the Fourteenth Amendment established a federal floor related to civil liberties.”); George C. Thomas III, When Constitutional Worlds Collide: Resurrecting the Framers’ Bill of Rights and Criminal Procedure, 100 Mich. L. Rev. 145, 150-51 (2001) (observing that after incorporation of the Bill of Rights, “the dilution of [the Bill of Rights] flowed backward[s]” and that “the process of incorporation took a sledgehammer to the federal criminal procedure guarantees”). According to Professor Williams, decisions of the United States Supreme Court declining to recognize rights “must always be viewed as partially attributable to ‘underenforcement’ ” as a result of federalism and other institutional concerns that explicitly or implicitly pervade Supreme Court decisions. Robert F. Williams, The Law of American State Constitutions 137 (2009) [hereinafter Williams]; cf. State v. Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring) (noting hesitancy of the United States Supreme Court “to impose on a national level far-reaching constitutional rules binding on each and every state”).<\/p>\n

As a result of the United States Supreme Court’s retreat in the search and seizure area, there has been a sizeable growth in independent state constitutional law. A survey of jurisdictions in 2007 found that a majority of the state supreme courts have departed from United States Supreme Court precedents in the search and seizure area to some degree. See generally Michael J. Gorman, Survey: State Search and Seizure Analogs, 77 Miss. L.J. 417 (2007). There are now hundreds of independent state constitutional search and seizure cases, and the number grows over time. Because of the tendency of the United States Supreme Court to underenforce or dilute search and seizure principles, it can be argued that these precedents are “entitled to less weight than other state decisions interpreting similar state constitutional law provisions.” Williams at 137; cf. State v. Black, 815 S.W.2d 166, 193 (Tenn. 1991) (Reid, C.J., concurring in part and dissenting in part) (“Tennessee constitutional standards are not destined to walk in lock step with uncertain and fluctuating federal standards and do not relegate Tennessee citizens to the lowest levels of constitutional protection, those guaranteed by the national constitution.”).<\/p>\n

The growth of independent state constitutional law, however, has not been universally celebrated. As Professor Williams has bemoaned, adoption of independent state constitutional law has occasionally provoked what Williams has called a “bitter, accusatorial” dissent. Williams at 180 (citing People v. Scott, 593 N.E.2d 1328, 1348-49 (N.Y. 1992) (Bellacosa, J., dissenting)). Yet, as was noted twenty years ago in connection with independent state constitutional law, “heightened rhetoric adds nothing to the jurisprudence of our State.” State v. Canelo, 653 A.2d 1097, 1106 (N.H. 1995) (Johnson, J. concurring specially). And, according to a leading authority on state constitutions, writing in 1998, the concern about the legitimacy of relying on state constitutional guarantees “has largely been put to rest.” G. Alan Tarr, Understanding State Constitutions 169 (1998).\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

On state constitutional grounds, Iowa refuses to follow SCOTUS on probation and parole searches. A search warrant is required without consent. \u201cFor the above reasons, we think Cullison remains good law. We decline to overrule it. The United States Supreme … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[58,53],"tags":[],"class_list":["post-12622","post","type-post","status-publish","format-standard","hentry","category-probationparole-search","category-state-constitution"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/12622","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12622"}],"version-history":[{"count":3,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/12622\/revisions"}],"predecessor-version":[{"id":12664,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/12622\/revisions\/12664"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12622"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12622"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12622"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}