Search and seizure in the states

Since the 1970s, one of the areas where state supreme courts have been most willing to break with U.S. Supreme Court precedent is in the law of search and seizure. Indeed, while Justice William Brennan is often credited with jump-starting a first-generation “judicial federalism” movement in the late 1970s, Brennan himself pointed to several earlier state search and seizure cases for inspiration. This week, we have two new pieces that examine different aspects of the why and how of state departures from Fourth Amendment law, with plenty of lessons for thinking about state constitutions more generally.

University of Oklahoma Professor Stephen Henderson starts us off with an overview of the “double security” offered by state and federal constitutions when it comes to criminal procedure. While this has always been part of our constitutional structure, he looks at how state search and seizure jurisprudence has matured in recent years, including its influence on federal law.

New technology has been one important piece of the story. In 2014, for example, the Massachusetts high court ruled that the police needed a warrant to obtain certain cell phone records that provided comprehensive location information about a person’s past movements. Four years later, the U.S. Supreme Court adopted the same standard under the Fourth Amendment in Carpenter v. United States. It’s one of many instances, Henderson notes, where state constitutional rulings have hovered in the background while the Supreme Court considered a novel question. Indeed, I suspect one reason why states have been on the search and seizure vanguard is exactly because Fourth Amendment frameworks often lag in responding to new technologies.

Our next piece highlights an emerging state trend: the Institute for Justice’s Joshua Windham writes about how a growing number of states have rejected the “open fields” exception, a hundred-year-old doctrine that denies Fourth Amendment protection to private land beyond the area immediately surrounding a person’s home (the curtilage, for all those criminal procedure fans). Despite the name, this exception applies to far more than fields. A recent Institute for Justice study found that at least 96 percent of private land falls outside the curtilage — and therefore outside the protections of the Fourth Amendment.

Earlier this month, an intermediate court in Tennessee rejected the open fields exception in a suit brought by the Institute for Justice. In the case, the plaintiffs complained that game wardens had entered their private land and planted cameras to look for evidence of hunting violations. As is often the case when state courts decline to proceed in lockstep with the federal constitution, the court highlighted textual differences between the Fourth Amendment and its Tennessee counterpart, Article I, Section 7. Tennessee prohibits unreasonable searches of “possessions,” a term that doesn’t appear in the Fourth Amendment and that the court found included real property like land that’s put to actual use.

As Windham notes, courts in six other states have likewise rejected the open fields doctrine under their state constitutions, and there are cases pending in Louisiana, Pennsylvania, and Virginia. Several (but not all) of these states have similar “possessions” language in their constitutions. In total, more than a dozen state constitutions protect possessions. Look for more litigation to come.

The Employment Status of Ride-Hail Drivers

The California Supreme Court heard oral arguments last week about the constitutionality of a 2020 ballot initiative that classified app-based ride-hail drivers as independent contractors. It’s part of a long-running fight over whether Uber and Lyft drivers are “employees entitled to minimum wage, overtime, workers’ compensation, unemployment insurance, and other workplace protections; or independent contractors with minimal rights under state law,” writes Dan Ocampo, an attorney with the National Employment Law Project. And, he explains, a similar story is playing out in Massachusetts. READ MORE

Covid-19 Restrictions on Religious Services in Delaware

The Delaware Supreme Court is considering whether the governor violated religious liberties under the state and federal constitutions when he placed restrictions on religious gatherings at the start of the Covid-19 pandemic. The plaintiffs — Christian clergy members — argue that the governor singled out religion for disfavored treatment. “The case has been politically charged from the beginning,” writes Geeta Tewari, an associate professor at Widener University Delaware Law School. READ MORE

Police Reform Four Years After the Murder of George Floyd

“Four years after George Floyd’s murder by police, efforts at police reform have slowed — but not stalled,” write the Brennan Center’s Sabrina Alli and Kathrina Szymborski Wolfkot. Alli and Wolfkot describe state supreme court decisions in Massachusetts, Nevada, and New York that have increased accountability for law enforcement and upheld laws aimed at curbing police violence. “While the transformative change in policing that many Americans hoped for following Floyd’s murder remains elusive, efforts at police reform are ongoing,” they write. “State courts play an important role in those efforts.” READ MORE

Constitutional Conventions Explained

Louisiana may hold a constitutional convention this summer, which would be the first time any state has done so since 1986. Kevin Frazier, a law professor at St. Thomas University, examines the processes and history of state constitutional conventions, which have often proceeded in waves. “Whether Louisiana kicks off a new wave of revision or furthers convention-phobia will likely turn on the extent to which the proposed convention operates in a transparent, inclusive, and deliberative fashion,” he writes. READ MORE

Legislative Limits on Qualified Immunity

When officials who violate the U.S. Constitution assert qualified immunity to avoid liability, the victim of the constitutional wrongdoing is often left without any remedy at all. But state legislatures can limit the immunities available for state constitutional violations, writes Penn State Law Professor Gary Gildin. He describes successful efforts to outlaw qualified immunity in Colorado and New Mexico — but notes that some states have failed to take up reform or even bolstered immunities. “The elimination of qualified immunity is critical to expanding the ability of citizens to vindicate the rights secured by their state constitution,” he argues. READ MORE

State Supreme Courts and Judicial Diversity

A new Brennan Center report on state supreme court diversity finds that 18 state high courts have no justices of color, 25 have no Black justices, and 39 have no Latino justices. “There is a critical need for more data and research to understand the hurdles to achieving greater diversity on the bench and the impact that a diverse bench has on our judicial system,” write the report’s authors, Chihiro Isozaki and Zoe Merriman. READ MORE

Oral Arguments to Watch For in June

Each month, State Court Report previews upcoming oral arguments in prominent or interesting state court cases. In June, state supreme courts will take up issues including laws permitting early in-person voting and permanent absentee status, the appealability of discretionary sentences, and a government-imposed “church purposes only” deed restriction. Also included is a preview of the nation’s second-ever state constitutional climate trial, where 13 youth seek to take Hawaii to task over its transportation sector’s contributions to climate change. READ MORE

What Else We’re Reading

• Rhode Island Supreme Court Associate Justice Melissa Long spoke to the graduating class of her alma mater, George Mason University’s Antonin Scalia Law School, where she reminded students to learn about their state’s constitution and be prepared to make robust state constitutional arguments.
• Simon Jacobs of the U.S. Bureau of Labor Statistics and Massachusetts Supreme Judicial Court Justice Scott Kafker write for the Wake Forest Law Review about “the dangerous lack of clarity” in the U.S. Supreme Court’s decision Moore v. Harper, which held that the federal Elections Clause does not give state legislatures unfettered control over federal elections. The original understanding of that clause “provides for a very limited form of additional federal oversight” over elections, they write.
• A New Yorker article focusing on the many American counties that have ended in-person jail visits highlights a pair of novel “Right to Hug” lawsuits in Michigan where plaintiffs claim that the state’s due process clause grants them the right to see loved ones who are confined to local jails.

You May Have Missed

• A spouse in the midst of a divorce has asked the Texas Supreme Court to determine when, if it all, parental rights attach to an embryo. The case raises the specter of “fetal personhood” and could endanger IVF access in Texas — echoing a decision from the Alabama Supreme Court covered in a recent State Court Report newsletter essay.
• The Ohio Supreme Court declined to narrow an order temporarily blocking the state from enforcing its ban on gender-affirming medical care for transgender youth. Parents of trans teens allege that the ban violates, among other state constitutional clauses, a Republican-backed “health care freedom” provision approved by voters in 2011 to limit the scope of the Affordable Care Act. Similar provisions — passed in Alabama, Arizona, Florida, Ohio, Oklahoma, and Wyoming — are increasingly seen as a useful tool to challenge restrictions on trans health care and abortion rights, attorney Julia Livingston recently wrote in State Court Report.

State Court Report editor in chief Alicia Bannon talked to the National Center for State Courts for its Tiny Chats series.

Notable Cases

Cobb County v. Floam, Georgia Supreme Court

Dismissed a state constitutional challenge to a decision by local officials to override state legislators and draw their own electoral districts, concluding that the plaintiffs did not meet the standard for a declaratory judgment. The court overruled prior case law suggesting that challenges to county ordinances required plaintiffs to show a “particularized injury” and also noted that the plaintiffs’ claims raised “very serious” and “novel” issues. // Associated Press

Bouvier v. Porter, North Carolina Supreme Court

Overturned a lower court ruling and held that attorneys who assisted voters in filing allegations of voter fraud in a state election in 2016 were shielded from defamation claims because “all individuals involved in any aspect of election protests from defamation claims” enjoy absolute privilege from suit. The “election protest” is a specific type of statutory process North Carolina citizens can use to alert local boards of elections to perceived problems. In 2016, the fraud allegations at issue were dismissed for a lack of evidence or withdrawn. // Associated Press

State ex rel. Dudley v. Yost, Ohio Supreme Court

Denied the Ohio attorney general’s motion to dismiss a petition for writ of mandamus filed by proponents of a ballot initiative that would amend the state constitution to allow same-day voter registration and implement automatic voter registration. The plaintiffs allege the attorney general exceeded his authority when he failed to certify the proposed initiative because he objected to its title. The court set a schedule for the case to move forward on the merits. // Democracy Docket

Fleischmann v. Aguilar, Nevada Supreme Court

Affirmed a lower court ruling that a proposed ballot initiative that would require voters to show photo identification did not contain an unconditional unfunded mandate (or requirement that money be expended without providing funds necessary to fulfill the requirement). Proponents of the initiative still need to collect the proper number of signatures in order for it to appear on the ballot this fall. // Las Vegas Review-Journal

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271 646-292-8310 brennancenter@nyu.edu

Support Brennan Center

Did you get this message forwarded from a friend? Sign up here.

View Online