[1] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 491 (1977). Return to text.

[2] See, e.g., Oregon v. Hass, 420 U.S. 714, 719 (1975); Lego v. Twomey, 404 U.S. 477, 489 (1972); Cooper v. California, 386 U.S. 58, 62 (1967) (stating that the states have the power to impose higher standards than those required by the federal Constitution). Return to text.

[3] According to this doctrine the state constitutional claim is decided first. If rights are protected under state law, the court does not have to examine the federal question or rely on the federal Constitution. If certain rights are not protected under state law, then the court looks to the federal Constitution. See Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 TEX. L. REV. 1141, 1170 (1985). Return to text.

[4] Compare Arizona v. Evans, 514 U.S. 1, 30 (1995) (Ginsburg, J., dissenting) (encouraging states to explore different means to protect individual rights), and Delaware v. Van Arsdall, 475 U.S. 673, 705-07 (1986) (Stevens, J., dissenting) (stressing the importance of the independence of state constitutions in securing individual rights), with Florida v. Casal, 462 U.S. 637, 639 (1983) (Burger, C.J., concurring) ("[W]hen state courts interpret state law to require more than the federal Constitution requires, the citizens of the state must be aware that they have the power to amend state law to ensure rational law enforcement."), and Earl M. Maltz, False Prophet—Justice Brennan and the Theory of State Constitutional Law, 15 HASTINGS CONST. L.Q. 429, 429 (1988) (arguing that a focus on federalism is not appropriate in state constitutional law).

Notably, Chief Justice Burger generally advocated federalism and the independence of state constitutions; however, he did not support these notions when states were expanding on rights that the U.S. Supreme Court had viewed more restrictively, as was the case in Casal. See, e.g., Crist v. Bretz, 437 U.S. 28, 39 (1978) (Burger, C.J., dissenting) (criticizing the Court's constitutionalization of criminal procedure and stressing that "[C]onstitutional guarantees are trivialized by the insistence on mechanical uniformity between state and federal practice. There is of course, no reason why the state and federal rules must be the same."). Return to text.

[5] See CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 2-9 (3d ed. 1993). Return to text.

[6] See discussion infra Parts II.D., III.B.3. Return to text.

[7] Federalism is defined as a "[t]erm which includes interrelationships among the states and relationship between the states and the federal government." BLACK'S LAW DICTIONARY 612 (6th ed. 1990). "In the Warren era, federalism was unsuccessfully invoked to support the view of the anti-incorporationists; i.e., that the rights granted in federal courts need not apply with the same breadth or scope in state courts." William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. REV. 535, 549 (1986). The retreat of the Supreme Court from the philosophies of the Warren Court has caused federalism to be used as support for state expansion of constitutional guarantees. See id. at 548. Return to text.

[8] 596 So. 2d 957 (Fla. 1992). Return to text.

[9] See Charles G. Douglas, III, Federalism and State Constitutions, 13 VT. L. REV. 127, 127 (1988). Return to text.

[10] See id. Return to text.

[11] See Delaware v. Van Arsdall, 475 U.S. 673, 707 n.14 (1986) (Stevens, J., dissenting). Return to text.

[12] See Arizona v. Evans, 514 U.S. 1, 30 (1995) (Ginsburg, J., dissenting). Return to text.

[13] See State v. Ball, 471 A.2d 347, 350 (N.H. 1983). Return to text.

[14] See id. Return to text.

[15] See id. Return to text.

[16] See id. Return to text.

[17] See Delaware v. Van Arsdall, 475 U.S. 673, 705 (1986) (Stevens, J., dissenting). Return to text.

[18] J. Skelly Wright, In Praise of State Courts: Confessions of a Federal Judge, 11 HASTINGS CONST. L.Q. 165, 166 (1984). Return to text.

[19] See Abrahamson, supra note 3, at 1146. Return to text.

[20] See Douglas, supra note 9, at 129. Return to text.

[21] Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833). Return to text.

[22] See, e.g., Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 37 (1872) (finding that the purpose of the Fourteenth Amendment was not to transfer all the protections of the Bill of Rights from the states to the federal government). Return to text.

[23] See Douglas, supra note 9, at 130. Return to text.

[24] See id. at 131. Return to text.

[25] Stanley Mosk, State Constitutionalism: Both Liberal and Conservative, 63 TEX. L. REV. 1081, 1081 (1985). Return to text.

[26] See Stephen F. Aton, Note, State Constitutions Realigning Federalism: A Special Look at Florida, 39 U. FLA. L. REV. 733, 737-38 (1987). Return to text.

[27] See Stanley H. Friedelbaum, Judicial Federalism: Current Trends and Long-Term Prospects, 19 FLA. ST. U. L. REV. 1053, 1054 (1992). Return to text.

[28] See Gitlow v. New York, 268 U.S. 652, 666 (1925) (stating in dictum that the rights protected by the First Amendment are among the fundamental liberties protected by the Due Process Clause of the Fourteenth Amendment). Return to text.

[29] See, e.g., Powell v. Alabama, 287 U.S. 45 (1932) (employing a "fundamental fairness" test to determine whether a right was incorporated into the Fourteenth Amendment). Return to text.

[30] Developments in the Law: The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324, 1328 (1982) [hereinafter Developments]. Return to text.

[31] See Ken Gormley, State Constitutions and Criminal Procedure: A Primer for the 21st Century, 67 OR. L. REV. 689, 691 (1988). Return to text.

[32] The Warren Court imposed the following federal constitutional guarantees upon the states by incorporating them into the Fourteenth Amendment through the following cases: In re Winship, 397 U.S. 358 (1970) (Fifth Amendment's reasonable doubt standard of proof); Benton v. Maryland, 395 U.S. 784 (1969) (Fifth Amendment's ban against double jeopardy); Duncan v. Louisiana, 391 U.S. 145 (1968) (Sixth Amendment's right to jury trial); Washington v. Texas, 388 U.S. 14 (1967) (Sixth Amendment's right to compulsory process for obtaining witnesses); Klopfer v. North Carolina, 386 U.S. 213 (1967) (Sixth Amendment's right to a speedy trial); Pointer v. Texas, 380 U.S. 400 (1965) (Sixth Amendment's right to confront and cross-examine witnesses); Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment's privilege against self-incrimination); Gideon v. Wainwright, 372 U.S. 335 (1963) (Sixth Amendment's right to counsel); Robinson v. California, 370 U.S. 660 (1962) (Eighth Amendment's ban against cruel and unusual punishment); Mapp v. Ohio, 367 U.S. 643 (1961) (Fourth Amendment's exclusionary rule). Return to text.

[33] WHITEBREAD & SLOBOGIN, supra note 5, at 2. Return to text.

[34] See Gormley, supra note 31, at 692. Return to text.

[35] See id. Return to text.

[36] See Aton, supra note 26, at 742; see also WHITEBREAD & SLOBOGIN, supra note 5, at 950. Return to text.

[37] Douglas, supra note 9, at 133. Return to text.

[38] Developments, supra note 30, at 1328. Return to text.

[39] See id. Return to text.

[40] See WHITEBREAD & SLOBOGIN, supra note 5, at 3. Return to text.

[41] See id. (noting that the Burger Court was more willing to grant government officials wider latitude when handling criminal cases, stressing the need for effective law enforcement). Return to text.

[42] See id. at 7. Return to text.

[43] See Developments, supra note 30, at 1328. Return to text.

[44] See David G. Savage, Opinions on Rehnquist, A.B.A. J., Oct. 1996, at 42, 43. Return to text.

[45] See id. (quoting Professor Akhil Reed Amar of Yale Law School). Return to text.

[46] Mosk, supra note 25, at 1087 (citing A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 VA. L. REV. 873, 878 (1976); Donald E. Wilkes, Jr., The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY. L.J. 421, 421 (1974)). Return to text.

[47] See WHITEBREAD & SLOBOGIN, supra note 5, at 948. Return to text.

[48] See id. Return to text.

[49] U.S. CONST. amend. X; see also WHITEBREAD & SLOBOGIN, supra note 5, at 948. Return to text.

[50] See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 705-07 (1986) (Stevens, J., dissenting) (advocating the view that state courts should have primary responsibility for deciding issues arising under their constitutions and statutes); City of Mesquite v. Aladdin's Castle, 455 U.S. 283, 293 (1982) (stating that a state court "is entirely free to read its own State's constitution more broadly than [the Supreme] Court reads the Federal Constitution . . . ."); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 91 (1980) (Marshall, J., concurring) (finding that a state can adopt in its own constitution individual liberties that are more expansive than those conferred by the federal Constitution); Michigan v. Mosley, 423 U.S. 96, 120 (1975) (Brennan, J., dissenting) ("Each state has power to impose higher standards governing police practices under state law than is required by the Federal Constitution."); Oregon v. Hass, 420 U.S. 714, 728 (1975) (Marshall, J., dissenting) (noting that the lower court's opinion rested in part on independent state grounds with federal constitutional decisions serving merely as persuasive authority); Lego v. Twomey, 404 U.S. 477, 489 (1972) (stating that states are free to adopt a higher standard than the federal standard in criminal law cases). Return to text.

[51] See Brennan, supra note 1, at 503. Return to text.

[52] See id. Return to text.

[53] Id. Return to text.

[54] See Abrahamson, supra note 3, at 1156. Return to text.

[55] See Brennan, supra note 7, at 548. Return to text.

[56] See WHITEBREAD & SLOBOGIN, supra note 5, at 951. Return to text.

[57] See id. Return to text.

[58] "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel . . . experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Dissenting justices on the Warren Court "extolled the virtues of allowing the States to serve as 'laboratories' and objected to incorporation as 'press[ing] the States into a procrustean federal mold.'" Brennan, supra note 7, at 549. Return to text.

[59] See Brennan, supra note 7, at 550. Return to text.

[60] See, e.g., Florida v. Casal, 463 U.S. 637, 639 (1983) (Burger, C.J., concurring) (reminding the citizens of Florida that when state courts interpret the Florida Constitution to require more than the federal law requires they can amend their constitution to ensure rational law enforcement). Return to text.

[61] See Brennan, supra note 7, at 550. Return to text.

[62] See David J. Fine, Project Report: Toward an Activist Role for State Bills of Rights, 8 HARV. C.R.-C.L. L. REV. 271, 284 (1973). Return to text.

[63] See id. at 284-85. Return to text.

[64] Id. at 285. Return to text.

[65] U.S. CONST. art. VI, cl. 2. Return to text.

[66] See Developments, supra note 30, at 1333. Return to text.

[67] Id. at 1334. Return to text.

[68] See, e.g., Gormley, supra note 31, at 696. Return to text.

[69] See id. at 697:

Support for state supplementation of federal policy inheres in the text of the supremacy clause itself. The clause directs that a state court obey federal law, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." When a state law supplements some federal provision, it is not "contrary" to the federal provision, and execution of the federal law can occur "notwithstanding" state law.
Return to text.

[70] Id. Return to text.

[71] See Herb v. Pitcairn, 324 U.S. 117, 125 (1945):

This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds. . . . The reason is so obvious that it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights.

Id. at 125-26; see also WHITEBREAD & SLOBOGIN, supra note 5, at 961. Return to text.

[72] See WHITEBREAD & SLOBOGIN, supra note 5, at 961. Return to text.

[73] Judicial power extends "to all Cases, in Law and Equity, arising under this Constitution." U.S. CONST. art. III, § 2, cl. 1. Return to text.

[74] See Aton, supra note 26, at 743-44. Return to text.

[75] See Herb, 324 U.S. at 126-27. Return to text.

[76] See, e.g., Minnesota v. National Tea Co., 309 U.S. 551, 553 (1940) (noting that the state court did not rely on any specific provision of its own constitution and cited federal cases); see also Aton, supra note 26, at 746. Return to text.

[77] Aton, supra note 26, at 746. Return to text.

[78] In Michigan v. Long, 463 U.S. 1032, 1040-41 (1983), the Court placed the burden on the state court to show that its decision was based on independent state law grounds. The Court emphasized that if a state court refers to federal precedent in its decision, then it must make a plain statement that it is only using the federal decisions as guides. If the state court does not make an adequate plain statement, then the Court is not barred from reviewing the decision. Justice Stevens, in his dissenting opinion, argued that traditionally the presumption has been against asserting jurisdiction over a case that might have been decided on an independent state law ground. See id. at 1066-67 (Stevens, J., dissenting). Return to text.

[79] 463 U.S. 1032 (1983). Return to text.

[80] See WHITEBREAD & SLOBOGIN, supra note 5, at 961-62. Return to text.

[81] See Long, 463 U.S. at 1040-41. Return to text.

[82] Id. Return to text.

[83] Id. at 1037 n.3 (emphasis added). Return to text.

[84] See id. at 1043-44. Return to text.

[85] See Brennan, supra note 7, at 551. Return to text.

[86] See id. at 552. Return to text.

[87] 514 U.S. 1 (1995). Return to text.

[88] See id. at 4. The court employee committed a clerical error, resulting in an invalid arrest warrant. Return to text.

[89] See id. at 9-10:

[W]e conclude that we have jurisdiction. In reversing the Court of Appeals, the Arizona Supreme Court stated that "[w]hile it may be inappropriate to invoke the exclusionary rule where a magistrate has issued a facially valid warrant (a discretionary judicial function) based on an erroneous evaluation of the facts, the law, or both, it is useful and proper to do so where negligent record keeping (a purely clerical function) results in an unlawful arrest." Thus, the Arizona Supreme Court's decision to suppress the evidence was based squarely upon its interpretation of federal law. Nor did it offer a plain statement that its references to federal law were "being used only for the purpose of guidance, and d[id] not themselves compel."

(citations omitted); but see State v. Evans, 866 P.2d 869, 871 (Ariz. 1994) (stating that United States v. Leon, 468 U.S. 897 (1984), which established that it is not mandatory for courts to suppress evidence seized in violation of the Fourth Amendment due to an invalid search warrant, and which was relied on by the appeals court, was "not helpful" to the court's analysis). Return to text.

[90] Evans, 514 U.S. at 10. Return to text.

[91] See id. In a dissenting opinion, Justice Ginsburg stated that she would overrule Long. See id. at 24 (Ginsburg, J., dissenting). Justice Ginsburg supports the opposite of the plain statement rule—that absent a plain statement to the contrary, a state court's decision, like the one in this case, rests on independent state law grounds. See id. at 26. Justice Ginsburg was concerned that the application of the Long presumption increased the number of Supreme Court decisions that were not dispositive, because on remand the state courts merely reinstated their prior judgments after clarifying the reliance on state grounds with a "plain statement." See id. at 33. However, what troubled Justice Ginsburg most notably was that the Long presumption interfered "prematurely with state-court endeavors to explore different solutions to new problems facing modern society." Id. Return to text.

[92] 116 S. Ct. 2485 (1996). Return to text.

[93] See id. at 2486. Return to text.

[94] See id. Return to text.

[95] Id. Return to text.

[96] See id. at 2487. Return to text.

[97] See id. Return to text.

[98] See id. Return to text.

[99] See id. Return to text.

[100] Id. (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Return to text.

[101] Id. at 2490 (Stevens, J., dissenting). Return to text.

[102] Id. at 2492. Return to text.

[103] See id. at 2491-92 ("The harms are particularly unnecessary given the likely result on remand. . . . While the result will be identical, resources and respect will have been unnecessarily lost."). Return to text.

[104] See id. Return to text.

[105] See Brennan, supra note 7, at 549-50. Return to text.

[106] See, e.g., Arizona v. Evans, 514 U.S. 1, 31-32 (1995) (Ginsburg, J., dissenting). Return to text.

[107] State v. Ball, 471 A.2d 347, 352 (N.H. 1983); see also State v. Grant-Chase, 665 A.2d 380, 382 (N.H. 1995) (citing State v. Maya, 493 A.2d 1139, 1143 (N.H. 1985): "We cite 'decisions of the Supreme Court of the United States and of courts of other jurisdictions for their helpfulness in analyzing and deciding the State issue.'"); State v. Chaisson, 486 A.2d 297, 301 (N.H. 1984) ("In construing the State Constitution, we refer to federal constitutional law as only the benchmark of minimum constitutional protection."). Return to text.

[108] See, e.g., Large v. Superior Court, 714 P.2d 399, 405 (Ariz. 1986) (en banc) (referring to federal constitutional law only as the benchmark of minimum protection). Return to text.

[109] 500 A.2d 233 (Vt. 1985). Return to text.

[110] Id. at 238. Return to text.

[111] See id. Return to text.

[112] See Ted M. Benn, Individual Rights and State Constitutional Interpretations: Putting First Things First, 37 BAYLOR L. REV. 493, 507 (1985). Return to text.

[113] Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. BALT. L. REV. 379, 380 (1980). Return to text.

[114] See Benn, supra note 112, at 507. Return to text.

[115] See Aton, supra note 26, at 764. Return to text.

[116] See id. Return to text.

[117] See State v. Gomez, 932 P.2d 1, 6 (N.M. 1997). Return to text.

[118] See id. Return to text.

[119] See, e.g., People v. Kimery, 676 N.E.2d 656, 664 (Ill. 1997) (Nickels, J., dissenting) ("We are bound to follow the United States Supreme Court's decisions on matters of federal constitutional law. However, the obligation to apply those decisions when interpreting parallel provisions of our state constitution is one that this court has imposed upon itself under the so-called 'lock step doctrine.'"); Gomez, 932 P.2d at 6-7 (stating that for several decades New Mexico also interpreted their constitution in lock-step with federal precedent; however, the court rejected the method in this case). Return to text.

[120] See FLA. CONST. art. I, § 12 (amended 1982). The amendment begins with wording identical to the Fourth Amendment of the United States Constitution, but then adds: "This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." Id. Return to text.

[121] See Benn, supra note 112, at 507. Return to text.

[122] Id. An example of the Florida Supreme Court acting as a "mimicking court jester" is apparent in Perez v. State, 620 So. 2d 1256 (Fla. 1993). In Bernie v. State, 524 So. 2d 988, 991 (Fla. 1988), the court stated that because of the 1982 amendment which required the state to follow the interpretations of the United States Supreme Court on issues involving the Fourth Amendment, Florida courts were subsequently bound to prospective decisions of the Supreme Court. The impact of this holding was felt in Perez: "[I]n what must be the first time in history, this Court is issuing a majority decision with which the majority disagrees." Perez, 620 So. 2d at 1262 (Barkett, J., dissenting). Because of the 1982 amendment and its decision in Bernie, the Florida Supreme Court is bound to relevant Supreme Court decisions, even when the court does not agree with those decisions and even if a different outcome would be reached under the state constitution.

In his dissenting opinion in Perez, Justice Kogan noted that at the time Bernie was written, the Supreme Court had not begun to "retreat from its own precedent that characterizes the nation's high Court today. . . . Few could have foreseen the extent of the high Court's recent activities." Id. at 1270 (Kogan, J., dissenting). Justice Kogan further pointed out that the implication of the 1982 amendment, coupled with the court's decision in Bernie, required "that the authority to interpret part of the Florida Constitution is vested exclusively in the United States Supreme Court," a proposition that Justice Kogan found defied logic, "stretched credulity beyond the stars," and was absurd. Id. at 1271-72. Return to text.

[123] See Abrahamson, supra note 3, at 1168. Return to text.

[124] See, e.g., Developments, supra note 30, at 1328; see also Perez, 620 So. 2d at 1272 (Kogan, J., dissenting) (stating that the lock-step approach vests authority to interpret part of the Florida Constitution exclusively in the United States Supreme Court, nullifying that part of the state constitution). Return to text.

[125] See, e.g., Abrahamson, supra note 3, at 1171 (stating that a court will turn to a state constitution only if the federal constitution does not adequately protect a defendant). Return to text.

[126] See State v. Gomez, 932 P.2d 1, 7 (N.M. 1997). Return to text.

[127] See Benn, supra note 112, at 507. Return to text.

[128] See, e.g., State v. Hunt, 450 A.2d 952, 955 (N.J. 1982). In Hunt, the court stated that the function of state constitutions is to serve as a second line of defense for those rights protected by the federal Constitution. See id. at 955. Therefore, only strong policy reasons justify a departure from federal precedent. See id. The court recognized that notions of federalism justify the departure; however, it noted that divergent paths are unsatisfactory to the public and it stressed the need for application of uniform rules of criminal procedure. See id.; Benn, supra note 112, at 508. Return to text.

[129] Aton, supra note 26, at 768. Return to text.

[130] Id. Return to text.

[131] See id. Return to text.

[132] See, e.g., id. (stating that under an independent approach to federalism questions, a state "only reaches the federal Constitution when the issues cannot be resolved under state law"). Some of the states utilizing a primacy analysis include: Large v. Superior Ct., 714 P.2d 399, 405 (Ariz. 1986); State v. Hoey, 881 P.2d 504, 523 (Haw. 1994); State v. Perry, 610 So. 2d 746, 751 (La. 1992); City of Portland v. Jacobsky, 496 A.2d 646, 648 (Me. 1985); State v. Johnson, 719 P.2d 1248, 1255 (Mont. 1986); State v. Ball, 471 A.2d 347, 350-52 (N.H. 1983); State v. Kennedy, 666 P.2d 1316, 1318 (Or. 1983); Autran v. State, 887 S.W.2d 31, 36-37 (Tex. Crim. App. 1994); State v. Jewett, 500 A.2d 233, 238 (Vt. 1985); State v. Coe, 679 P.2d 353, 361-62 (Wash. 1984). Return to text.

[133] State v. Johnson, 719 P.2d 1248, 1255 (Mont. 1986). Return to text.

[134] Linde, supra note 113, at 380. Return to text.

[135] See Wallace P. Carson, Jr., "Last Things Last": A Methodological Approach to Legal Argument in State Courts, 19 WILLAMETTE L. REV. 641, 648 (1983) ("[T]he United States Constitution is the supreme law of the land."). However an independent analysis of state constitutions does not diminish the supremacy of federal rights because nothing in a state law or state constitution can infringe upon federally guaranteed rights. See id. Return to text.

[136] See, e.g., id. at 648. Return to text.

[137] See, e.g., Traylor v. State, 596 So. 2d 957, 961 (Fla. 1992). Return to text.

[138] See id. Return to text.

[139] See id. Return to text.

[140] See id. Return to text.

[141] See id. Return to text.

[142] See id. Return to text.

[143] Aton, supra note 26, at 771. Return to text.

[144] See, e.g., West v. Thomson Newspapers, 872 P.2d 999, 1005 (Utah 1994) (stating that the court had not developed a consistent approach for cases in which both state and federal constitutional claims were made and was criticized for being result-oriented); State v. Jewett, 500 A.2d 233, 236 (Vt. 1985) (stating that it would be a mistake for the court to use its state constitution to evade the decisions of the United States Supreme Court and that its decisions must be principled, not result-oriented). Return to text.

[145] Abrahamson, supra note 3, at 1178. Return to text.

[146] See, e.g., WHITEBREAD & SLOBOGIN, supra note 5, at 959 ("Many commentators view the current renaissance in state constitutional litigation as an ideological reaction to the retrenchment of the United States Supreme Court, rather than as an objective effort to develop state constitutional doctrine."). Return to text.

[147] Aton, supra note 26, at 756. Return to text.

[148] See, e.g., WHITEBREAD & SLOBOGIN, supra note 5, at 956-59 (rebutting arguments commonly advanced to support such an independent analysis). Return to text.

[149] See, e.g., Earl M. Maltz, The Dark Side of State Court Activism, 63 TEX. L. REV. 995, 1005-06 (1985) (arguing that there is no need for double constitutional protections). Return to text.

[150] See, e.g., People v. Corr, 682 P.2d 20, 33 (Colo. 1984) (Erickson, J., dissenting) (stating that police officers should be able to rely on decisions of the United States Supreme Court); State v. Ringer, 674 P.2d 1240, 1250 (Wash. 1983) (Dimmick, J., dissenting) (stressing the need for uniform application of laws); Benn, supra note 112, at 508 (stating that uniformity of the law is often a worthwhile goal). Return to text.

[151] Aton, supra note 26, at 762. Return to text.

[152] Id. Return to text.

[153] See id. Return to text.

[154] See id. Return to text.

[155] See WHITEBREAD & SLOBOGIN, supra note 5, at 957. Return to text.

[156] Id. Return to text.

[157] See id. Return to text.

[158] See discussion infra Part V.A. Return to text.

[159] See discussion infra Part V.B. Return to text.

[160] See discussion infra Part V.C. Return to text.

[161] 551 So. 2d 1186 (Fla. 1989). Return to text.

[162] See id. at 1189. Return to text.

[163] See id. at 1196. Return to text.

[164] See id. Return to text.

[165] 568 So. 2d 4 (Fla. 1990). Return to text.

[166] See id. at 7-8. Return to text.

[167] See id. at 8. Return to text.

[168] See Daniel Gordon, Good Intentions—Questionable Results: Florida Tries the Primacy Model, 18 NOVA L. REV. 759, 764-66 (1994). Return to text.

[169] See id. Return to text.

[170] 596 So. 2d 957 (Fla. 1992). Return to text.

[171] See id. at 960-61. Return to text.

[172] See id. at 961-66. Return to text.

[173] Compare U.S. CONST. amend. V ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . ."), with FLA. CONST. art. I, § 9 ("No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against himself."). Return to text.

[174] See Traylor, 596 So. 2d at 962-63. Return to text.

[175] See id. Return to text.

[176] See id. at 962. Return to text.

[177] Id. Return to text.

[178] See supra Parts IV.C.1-2. Return to text.

[179] See 594 So. 2d 275 (Fla. 1992). Return to text.

[180] See id. at 276. Return to text.

[181] See id. at 278. Return to text.

[182] See id. at 277-78. Return to text.

[183] See id. at 279-80 (Kogan, J., concurring) (stating that the question presented to the court is a far more serious issue of Florida constitutional law, which the court did not address). Return to text.

[184] See id. at 279. Return to text.

[185] Id. Return to text.

[186] 645 So. 2d 987 (Fla. 1994). Return to text.

[187] See id. at 990. Return to text.

[188] See id. at 991. Return to text.

[189] See id. at 991-94. Return to text.

[190] See id. at 994. Return to text.

[191] See supra Part IV.C.1. Return to text.

[192] See Herrera v. State, 594 So. 2d 275, 277-78 (Fla. 1992). Return to text.

[193] See B.H., 645 So. 2d at 991. Return to text.

[194] See supra Part IV.C.2. Return to text.

[195] See Herrera, 594 So. 2d at 279 (Kogan, J., concurring). Return to text.

[196] See B.H., 645 So. 2d at 991. Return to text.

[197] See supra Parts IV.C.1-2. Return to text.

[198] 22 Fla. L. Weekly S246 (Fla. May 8, 1997) (answering the certified question of whether the principles announced by the United States Supreme Court in Davis applied to the admissibility of confessions in Florida in light of Traylor) (Owen II). Return to text.

[199] See infra Parts VI.D.1-3. Return to text.

[200] See Owen v. State, 560 So. 2d 207 (Fla. 1990) (Owen I). Return to text.

[201] See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that a suspect in custodial interrogation must be made aware of his right to assistance of counsel and to terminate questioning). Return to text.

[202] See Owen I, 560 So. 2d at 211. Return to text.

[203] See id. at 210-11. Return to text.

[204] See id. Return to text.

[205] See id. Return to text.

[206] See Traylor v. State, 596 So. 2d 957, 964-66 (Fla. 1992). Return to text.

[207] See id. at 966. Return to text.

[208] See id. at 971-72. Return to text.

[209] See id. at 972. Return to text.

[210] 512 U.S. 452 (1994). Return to text.

[211] See id. at 459. Return to text.

[212] Id. at 462. Return to text.

[213] See id. Return to text.

[214] Id. at 459 (quoting Smith v. Illinois, 469 U.S. 91, 97-98 (1984)). Return to text.

[215] See id. at 461. Return to text.

[216] See id. Return to text.

[217] 20 Fla. L. Weekly D37 (Fla. 5th DCA Dec. 22, 1994), withdrawn and substituted by 20 Fla. L. Weekly D399 (Fla. 5th DCA Feb. 10, 1995). Return to text.

[218] See Deck, 20 Fla. L. Weekly at D37. Return to text.

[219] See Deck, 20 Fla. L. Weekly D399 (Fla. 5th DCA Feb. 10, 1995), withdrawn and substituted by 653 So. 2d 435, 436 (Fla. 5th DCA 1995). Return to text.

[220] See Deck v. State, 653 So. 2d 435, 436-37 (Fla. 5th DCA 1995). Return to text.

[221] See id. at 437. Return to text.

[222] See Almeida v. State, 687 So. 2d 37 (Fla. 4th DCA 1997) (certifying the question of whether Davis applied to the admissibility of confessions in Florida in light of the Florida Supreme Court's decision in Traylor). Return to text.

[223] See State v. Owen, 654 So. 2d 200 (Fla. 4th DCA 1995) (Owen II). Return to text.

[224] See id. at 202. Return to text.

[225] See id. Return to text.

[226] See id. ("[W]e certify the following question as one of great public importance: DO THE PRINCIPLES ANNOUNCED BY THE UNITED STATES SUPREME COURT IN DAVIS APPLY TO THE ADMISSIBILITY OF CONFESSIONS IN FLORIDA, IN LIGHT OF TRAYLOR?"). The Fourth District Court of Appeals certified the same question in Almeida v. State, 687 So. 2d 37, 39 (Fla. 4th DCA 1997) and Skyles v. State, 670 So. 2d 1084, 1085 (Fla. 4th DCA) rev. granted, 679 So. 2d 774 (Fla. 1996). Return to text.

[227] See State v. Hoey, 881 P.2d 504, 523 (Haw. 1994) (choosing to afford its citizens greater protection under the Hawaii Constitution than that recognized by the Davis majority under the United States Constitution). Return to text.

[228] See, e.g., State v. Williams, 535 N.W.2d 277 (Minn. 1995); State v. Panetti, 891 S.W.2d 281 (Tex. Crim. App. 1994); State v. Bacon, 658 A.2d 54 (Vt. 1995); State v. Long, 526 N.W.2d 826 (Wis. Ct. App. 1994). Return to text.

[229] See Williams, 535 N.W.2d at 284-85; Long, 526 N.W.2d at 829-30; Bacon, 658 A.2d at 65. But see Panetti, 891 S.W.2d at 283-84 (acknowledging that the Texas Constitution could be read more expansively but, relying on federal law, adopting Davis). Return to text.

[230] See, e.g., Jackson v. State, 476 S.E.2d 615, 618-19 (Ga. Ct. App. 1996) (distinguishing Davis because the request for an attorney came while the defendant was waiving his Miranda rights). Return to text.

[231] See, e.g., Cargle v. State, 909 P.2d 806, 820 (Okla. Crim. App. 1995) (finding no violation of Miranda rights because after an equivocal assertion the police asked clarifying questions); see also Long, 526 N.W.2d at 830 n.3 (leaving the question of whether the Wisconsin Constitution grants more rights than Davis for another day).

232> See State v. Owen, 22 Fla. L. Weekly S246, S247 (Fla. May 8, 1997). Return to text.

[233] See id. at S247 ("Though our analysis in Traylor was grounded in the Florida Constitution, our conclusions were no different than those set forth in prior holdings of the United States Supreme Court."). Return to text.

[234] Id. Return to text.

[235] Id. Return to text.

[236] See id. Return to text.

[237] See id. at S246-47 (basing its holding on federal law without first looking to the state constitution). Return to text.

[238] See id. at S248 (Shaw, J. concurring). Return to text.

[239] See id. Return to text.

[240] See id. Return to text.

[241] See id. at S249 (Kogan, C.J., dissenting). Return to text.

[242] See id. Return to text.

[243] See id. at S250. Return to text.

[244] See id. Return to text.

[245] See Traylor v. State, 596 So. 2d 957, 962-63 (Fla. 1992). Return to text.

[246] See id. at 964. Return to text.

[247] Id. at 963. Return to text.

[248] See Davis v. United States, 512 U.S. 452, 461 (1994). Return to text.

[249] Id. Return to text.

[250] Id. at 964. Return to text.

[251] See Traylor, 596 So. 2d at 963. Return to text.

[252] See State v. Owen, 22 Fla. L. Weekly S246, S248 (Fla. May 8, 1997). Return to text.

[253] See Traylor, 596 So. 2d at 962-63. Return to text.

[254] See Owen II, 22 Fla. L. Weekly at S246-47. Return to text.

[255] See Davis, 512 U.S. at 472 (Souter, J., concurring). Return to text.

[256] See id. Return to text.

[257] See Traylor, 596 So. 2d at 962. Return to text.

[258] See id. Return to text.

[259] See Owen II, 22 Fla. L. Weekly at S247. Return to text.

[260] See id. Return to text.

[261] See supra Part VI.C. Return to text.

[262] See Owen II, 22 Fla. L. Weekly at S247. Return to text.

[263] See id. Return to text.

[264] See Daniel R. Gordon, Protecting Against the State Constitutional Law Junkyard: Proposals to Limit Popular Constitutional Revision in Florida, 20 NOVA L. REV. 413, 414-15 (1995). Return to text.

[265] See id. Return to text.

[266] See id. Return to text.

[267] See, e.g., id. Return to text.

[268] Brennan, supra note 7, at 552. Return to text.