Over at the Hkolov Cabal, Orin Kerr recently had a post commenting on an upcoming article by Wayne Logan, “Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment.”
It’s an interesting and well-developed article. That said, I am much less concerned with splits across federal circuits, which Professor Logan focuses upon, than with splits between the Fourth Amendment rules adopted by a given state’s courts on the one hand, and the “local” federal Court of Appeals on the other.
Here in California, we have a bunch of these state / federal splits — many of which are due, I suspect, to relatively conservative state courts, limited by Proposition 8 in their application of the exclusionary rule, as contrasted with the somewhat schizophrenic, occasionally hyperliberal Ninth Circuit. A few weeks ago, I ran a Westlaw search in the CA-CS (California cases) database to illustrate the point. The search yielded 20 hits for this phrasing: ”Fourth Amendment” and (“Ninth Circuit” /p “not binding”).
I discuss two of these divides in my Criminal Procedure class. First, in People v. Thompson (2006), the California Supreme Court held that an officer may enter a residence on probable cause of a recent DUI, in order to preserve evanescent blood-alcohol evidence; in Hopkins v. Bonvicino (2009), the Ninth Circuit respectfully disagreed with this analysis, and found (in a section 1983 civil-suit context) that officers not only could not enter a residence under these circumstances, but they also could not claim qualified immunity for their actions.
Another split arose just a few months ago. In United States v. Murphy (2008), the Ninth Circuit built upon the United States Supreme Court’s decision in Georgia v. Randolph (2006) to hold that an “equal co-occupant” ‘s objection to the search of a premise prevails over a co-occupant’s consent to such a search, even after the objecting co-occupant has been removed, lawfully, from the premise. This past August, in People v. Fernandez, a California Court of Appeal joined the majority of courts to have addressed this issue in holding that under the circumstances, officers properly can rely upon the co-occupant’s grant of consent.
Why are these state / federal splits at least as, and possibly more important than circuit splits? Well, more so than intercircuit splits, state / federal divides sow confusion in specific police officers, and police departments. Take, for example, the Thompson / Hopkins divide. State courts say that blood-alcohol evidence obtained as a result of an entry on probable cause will be admissible in a criminal prosecution; at the same time, the Ninth Circuit says that officers will be held civilly liable if they enter to seize this evidence. In a given investigatory circumstance that might implicate this split, what should officers do? How should they be trained? Perhaps most important, are they even going to be aware of the existence of two sets of applicable rules?
All this is not to say that intercircuit splits aren’t consequential. But at least these splits might be justified by regional variations in the “amount” of Fourth Amendment protections that are desired (an analysis with which Professor Logan disagrees), and only rarely generate confusion within particular police departments, and officers.
Anyway, just a thought. Professor Logan states in a footnote to his article that he’ll look at state / federal divides in a future work; I look forward to his thoughts on the subject.