Title: Towards an Independent State Constitutional Jurisprudence II: Arkansas Supreme Court Rules State Constitution Requires Warning Prior to “Knock and Talk” Searches
Abstract: This is a follow-up article to Towards an independent state constitutional jurisprudence, or, How to disagree with the Supreme Court and how not to, (2002 ARLN 1) in which Professor Adelman traced the evolution of the state constitutional jurisprudence of the Arkansas Supreme Court in its search and seizure decisions, from one in which no analysis independent of United States Supreme Court Fourth Amendment takes place, to one in which the Arkansas Supreme Court may determine for itself what is or is not an unreasonable search or seizure under the cognate state constitutional provision, Article 2, § 15 of the Arkansas Constitution. In both articles, the author notes that the Arkansas Supreme Court quickly learned and applied the lesson of Arkansas v. Sullivan, 532 U.S. 769 (2001) (per curiam) (state courts may not interpret the Fourth Amendment more expansively - i.e., so as to provide greater protection against unreasonable search and seizure - than the U.S. Supreme Court has), and has embraced, under the banner of “Judicial Federalism,” its own state constitutional prerogative to “carve out its own path and speak in its own voice.” This later article focuses primarily on State v. Brown, 156 S.W. 3d 722 (2004), in which the Arkansas Supreme Court parted company with the holding and the rationale of Schneckloth v. Bustamonte, 412 U.S. 218 (1973)(Fourth Amendment does not require home dweller’s knowledge of the right to refuse consent to search as a prerequisite to a showing of voluntary consent). Instead, the Arkansas court, in accord with the supreme courts of several other states, held that under the Arkansas cognate state constitutional guarantee against unreasonable search and seizure, police engaging in the “knock and talk” procedure (simply showing up at someone’s dwelling, without warrant or probable cause to search, and asking the occupant to consent to a search of the premises) must first warn the occupant of the right to refuse consent, as an essential element of any voluntary consent to a “knock and talk” search. By clearly resting its holding on the state, rather than federal constitution, the state court effectively insulated its decision from Supreme Court review and reversal. The author concludes that the Arkansas Supreme Court, in the short time between the Sullivan and Brown decisions, quickly discovered, and learned how to flex, its newly found independent state constitutional muscles.
Publication Year: 2004
Publication Date: 2004-01-01
Language: en
Type: article
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