Saldana v. State
1993 WY 13
846 P.2d 604
Case Number: 90-24
Decided: 01/28/1993
Supreme Court of Wyoming
Cite as: 1993 WY 13, 846 P.2d 604
Maro
SALDANA,
Appellant
(Defendant),
v.
The STATE of
Appellee
(Plaintiff).
Appeal from District
Court,
Joseph B. Meyer,
Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Mary B. Guthrie, Sr. Asst.
Atty. Gen., for
appellee.
Before MACY, C.J., and
THOMAS, CARDINE, URBIGKIT* and GOLDEN,
JJ.
* Chief Justice at time of
oral argument; retired
THOMAS, Justice.
[¶1] The foremost
question presented in this case arises out of the claim of Maro Saldana
(Saldana) that the State unlawfully invaded his reasonable expectation of
privacy with respect to telephone company records for an unlisted telephone
number. His specific contention is that certain records concerning telephone
calls made to, and from, his unlisted telephone number at his residence were
seized, or otherwise intercepted, in violation of Wyo. Const. art. 1, § 4 and
Wyo. Stat. §§ 7-3-601 to -610 (Supp. 1990) and, because of the violation of the
Constitution and statutes, those telephone company records should not have been
admitted as evidence at his trial. Saldana also asserts the admission of certain
papers seized from his bedroom dresser drawer, together with testimony of an
investigative agent that interpreted those documents to the jury, deprived him
of his constitutional right to confrontation. In addition, Saldana contends
testimony by the investigative agent was presented as an opinion regarding his
guilt and as an opinion concerning credibility of various witnesses so that the
testimony usurped the role of the jury. All of these assertions of error by
Saldana culminate in his contention that, if the improper evidence had not been
admitted, there would not be sufficient evidence in the record to sustain his
conviction for the crime of possession of cocaine with intent to deliver. Our
review of the record in light of our statutes and controlling precedent leads us
to conclude that no reversible error occurred in connection with Saldana's
trial, and the judgment and sentence is affirmed.
[¶2] As set forth in
his Brief of the Appellant, Saldana presents the issues in the case as follows:
1. Was the evidence
presented insufficient to sustain Appellant's conviction?
2. Was Agent Arter's
testimony concerning his opinion of appellant's guilt and the credibility of
various witnesses inadmissible and denied Appellant his right to a jury
trial?
3. Did the admission of
the papers found in the dresser drawer violate Appellant's right to
confrontation?
4. Whether Appellant's
phone records and the derivative evidence were seized in violation of Article 1,
Section 4 of the Wyoming Constitution and therefore inadmissible as
evidence.
5. Whether the
Appellant's telephone toll records were intercepted in violation of § 7-3-601 et
seq. W.S. (1990 Cum. Supp.) and therefore were inadmissible.
In its brief,
the State of
I. Whether sufficient
evidence was presented to convict appellant of possession of cocaine with the
intent to deliver, in violation of W.S. 35-7-1031(a)(i).
II. Whether DCI Agent
Mike Arter gave his opinion on the guilt of the appellant and the credibility of
witnesses.
III. Whether it was
proper to admit evidence concerning papers which were found on appellant's
bureau during the search of his house.
IV. Whether the records
of appellant's telephone calls should have been admitted.
V. Whether the use of
appellant's telephone records violated W.S. 7-3-601 through 7-3-610, which
proscribes the unauthorized interception of telephone conversations.
[¶3] Late in February
of 1989, a package containing four and one-half ounces of uncut cocaine was
shipped from
[¶4] The package
arrived in
[¶5] No one who could
be identified as "Bob Haeger" ever did inquire about this package. Nevertheless,
numerous telephone calls were received by the UPS office in
[¶6] The Division of
Criminal Investigation (DCI) of the Attorney General's office in
[¶7] Agent Arter
returned to the UPS truck but, approximately ten minutes later, he went back to
the Saldana residence on the pretext that UPS needed some additional information
contained on a "next day" shipping label he had forgotten to remove before
delivering the package. On this occasion, Saldana answered the door. After
hearing Arter's explanation, Saldana went down to the basement and returned with
the package which had not been opened. Torres came upstairs later, after he was
informed his signature was needed. The testimony in the record discloses Torres
seemed confused but, nevertheless, he did as he was asked. The receipt obtained
at that time, containing Torres' signature and his handwriting sample,
subsequently was lost and was not offered into evidence at trial. After Torres'
signature had been obtained, Arter then signaled to two other agents who were
waiting outside, and both Torres and Saldana were arrested. Torres seemed unable
to speak English, and it appeared to the agents he did not comprehend what was
happening.
[¶8] Agent Arter then
obtained a search warrant for the Saldana residence and the package that had
been delivered, and the package was opened once more. The rock cocaine and the
other contents of the package were identical to those Arter had observed before
he resealed the package after opening it when it was hand delivered to him.
Other items that were seized, pursuant to the search warrant, included some
scraps of paper taken from a dresser drawer located in the Saldana's master
bedroom. One of these pieces of paper had written on it "1 oz. front
[¶9] Within a short
time, the authorities in
[¶10] Saldana asserts in his brief
"[p]erhaps the linchpin of the state's case against Appellant was the
introduction and interpretation of Appellant's phone records and derivative
evidence," and he then argues this evidence was obtained in violation of the
provisions of Wyo. Const. art. 1, § 4, and
[¶11] With regard to the telephone
records, Agent Arter testified he had obtained, through use of the federal
subpoena power, since "the State of
Q: You obtained phone
records?
A: That's correct,
sir.
Q: And when did you start
that process, and what was that process?
A: I started the process
almost - actually, to backtrack a little bit, I started the process prior to
even delivery of the package.
During our investigation
with help from that of our counterparts in
Q: United.
A: United Telephone, yes.
I checked that through United telephone. It was a nonpublished number. In order
for any law enforcement agencies to get information on a nonlisted number, we
have to get a search warrant. In this case - because the State of
Q: Let's back up. DEA,
what agency or what part of our government does that refer to?
A: The Department of
Justice.
Q: So that is
federal?
A: Yes, sir, we are
talking federal.
Q: Federal Department of
Drug Enforcement Administration?
A: That's correct, sir.
They also had a case start on this, but since I was the case agent, I just
merely kept them informed as to what was going on, and they gave me any support
they can or any input.
Through one of the agents
with DEA, Special Agent Larry Gregory, we submitted a federal subpoena for the
records of United Telephone to determine, number one, who owned the return
telephone number, the number that was given. That number was cement [sic] out to
me that the person who owned that number was in fact Maro Saldana at the address
indicated.
From there it sort of
stayed for awhile until the package was delivered and everything else from there
was my determination that since we did have someone from another state involved
that there was a need to see if they communicated, so I subpoenaed, again,
through the federal subpoena power - or had Special Agent Gregory subpoena - the
phone tolls for a several month period, two months prior to the delivery and the
month after.
When I received these
tolls, I did basically analysis of where the calls were going to. The numbers
that I could check that was not nonpublished, I checked to determine who they
belonged to the toll calls he had made; and the ones that were nonpublished, if
I felt they were germane to the investigation, I got a subpoena and tried to
obtain the records also.
Q: All right. Whose phone
records from
A: Through the
investigation of Mr. Saldana, Maro Saldana's phone records, there was frequent
calls to the Green Bay area to several numbers, one being the 465-0171, which
was the number of Michele Senechal, who is now the wife of Umero Saldana. Umero
Saldana gave the address of 846
I obtained a subpoena for
those toll records. Through also the analysis of Maro Saldana's, I noticed that
he called his other brother an unusual amount of times, Federico, and I obtained
a federal subpoena to get those phone records.
Arter continued
to testify about the number and the length of the calls made between Saldana's
residence and the residences of Umero and Federico. His interpretation of this
telephone activity was that it indicated certain members of Saldana's family
were calling other members to keep them informed as to what was
happening.
[¶12] When cross-examined about this
testimony, Arter conceded there was no way of knowing who was talking to whom
from the information developed by a search of the telephone records. On redirect
examination, Arter then testified:
Q: You were asked by Mr.
Newlon whether you know who made the calls, and you indicated that you did. What
I would like to ask you, not what your opinion is as to who made the calls, but
why do you think you know who made the calls?
A: Through the
investigation that I have conducted and just the experience and the details of
the case, it is obvious to me that the calls were made by Maro Saldana. When I
was in the house and interviewed both his wife and his daughters, it was fairly
obvious to me that the wife and daughters did nothing in that house without the
permission of Maro Saldana.
The wife was, as we
interviewed her, she was terrified of the results of his implication here and
more from him than what had [sic] considered. There was indication from all the
daughters, and the mother, that they were not allowed to use the phone. He told
them that they weren't even allowed to answer the phone unless he had told them
to. He made those type of phone calls. The phone calls from the month in
question was over $266. It is hard for me to understand, how he would allow them
to make that type of commitment for phone bills like that on their own sake and
not his. I am convinced that he made those calls.
[¶13] We have acknowledged many times the
constitutional guarantee against government intrusion into an individual's
legitimate expectation of privacy through an unreasonable search and seizure.
The guarantee is found in both Wyo. Const. art. 1, § 4, and U.S. Const. amend.
IV. Goettl v. State, 842 P.2d 549 (
[¶14] Whether a search is reasonable is
to be determined from the facts and circumstances of the case in light of the
"fundamental criteria" that are found in the Fourth Amendment, as those criteria
have been interpreted and defined in the opinions of the Supreme Court. Berger
v. State of
[¶15] The protection against unreasonable
searches and seizures found in the Constitution of the State of
[¶16] The facts in Smith are similar to
those in the case before us, but they can be distinguished since Saldana
maintained an unlisted telephone number while the petitioner in Smith did not.
The Supreme Court of the United States in that case held that the warrantless
use of a pen register, installed at police request on telephone company property
at the telephone company central office, did not constitute a "`search'"
invading a "`legitimate expectation of privacy.'" Smith, 442
Indeed, a law enforcement
official could not even determine from the use of a pen register whether a
communication existed. These devices do not hear sound. They disclose only the
telephone numbers that have been dialed - a means of establishing communication.
Neither the purport of any communication between the caller and the recipient of
the call, their identities, nor whether the call was even completed is disclosed
by pen registers.
Smith, 442
[¶17] Saldana's situation is different
from the facts in Smith, but the two cases match sufficiently that the same
reasoning can apply in both. Smith is controlling to the extent that we hold the
DCI's procurement of Saldana's telephone records, including those linking his
name to his unlisted telephone number, does not constitute a "search" invading a
"legitimate expectation of privacy" sufficient to demonstrate an invasion of
Saldana's constitutional rights. Any person using a telephone, whether on
legitimate business or otherwise, assumes a risk that the telephone can, and
will, reveal the numbers that he dials. Smith. It may be that an unlisted number
such as that used by Saldana affords to a party some greater subjective
expectation of privacy than one would find in connection with a listed number
like Smith's. That expectation is not more "legitimate" with respect to criminal
investigations, however, because the purpose and the privacy protections of an
unlisted number go only to veiling it from the general public by not including
it in telephone books and directory assistance services. An unlisted number and
the name of its owner are not affected any more with respect to its procurement
through use of a subpoena or warrant than is the information acquired by a
telephone company pen register, which is similarly veiled from public scrutiny.
The fact that Saldana's telephone number was not listed, even though permitting
increased expectation of privacy with respect to who might call him, is a
distinction without a difference for the purposes of this case. Here there was
no "search" that invaded a legitimate expectation of privacy and, for that
reason, no warrant was required. The DCI did not infringe on Saldana's Fourth
Amendment rights by acquiring information through the use of the federal DEA
investigative subpoena.
[¶18] Under the Tenth Amendment to the
United States Constitution, the freedom of the state to provide greater
expectations of privacy for its citizens than those provided under the federal
constitution is guaranteed if, in either its legislative or judicial discretion,
it deems it necessary or appropriate to do so. U.S. Const. amend. X;
[¶19] We next turn to the statutes relied
upon by
[¶20] Wyo. Stat. § 7-3-602 (1987)
provided, in pertinent part:
(a) Except as provided in
subsection (b) of this section, no person shall willfully:
(i) Intercept any wire or
oral communication;
(ii) Disclose to another
person the contents of any wire or oral communication, knowing or having reason
to know that the information was obtained through the interception of a wire or
oral communication in violation of this section;
(iii) Use the contents of
any wire or oral communication knowing or having reason to know that the
information was obtained through the interception of a wire or oral
communication in violation of this section.
(b) Nothing in subsection
(a) of this section prohibits:
(i) An officer, employee
or agent of a communications common carrier from intercepting, disclosing or
using a wire communication intercepted in the normal course of that person's
employment if the interception is made only for mechanical or service quality
checks or to protect the property of the communications common
carrier;
(ii) An officer, employee
or agent of any communication common carrier providing information, facilities
or technical assistance to a peace officer who is authorized pursuant to this
act to intercept a wire or oral communication;
* *
* * * *
(v)
A peace officer from intercepting, using or disclosing to another peace officer
in the course of his official duties any wire or oral communication pursuant to
an order permitting the interception under this act;
* *
* * * *
(c)
Any person who violates this section is guilty of a felony punishable by a fine
of not more than one thousand dollars ($1000.00), imprisonment for not more than
five (5) years, or both.
[¶21] Wyo. Stat. § 7-3-601(a)(iii) (1987)
defines the contents of an oral or wire communication to be:
(iii) "Contents of an oral or wire communication" includes
information concerning the identity of the parties participating in the
communication and the existence, meaning, substance or purport of the
communication; * * *.
Wyo.
Stat. § 7-3-601(a)(v) (1987) defines the word "intercept" to mean:
(v)
"Intercept" means the aural acquisition of the contents of any oral or wire
communication by use of an electronic, mechanical or other device; * *
*.
There are a few exceptions that are not pertinent in this
instance, but the theme of the statute is to prohibit a person, with criminal
sanctions attached to infractions, from willfully intercepting, disclosing, or
using the contents of any wire or oral communication that is obtained in
violation of the statute.
[¶22] Saldana's argument is that acquiring
the identities of the parties participating in a communication amounts to
acquiring the contents of that communication within the purpose of this statute.
Numerous different individuals can, however, have access to any given telephone
number and, consequently, obtaining information regarding the name of the person
owning the telephone number does not constitute acquiring information even as to
the identity of the parties who were involved in any given communication. In
this regard, it is also noteworthy that Wyo. Stat. § 7-3-601(a)(iv) (1987)
defines an "electronic, mechanical or other device" as:
(iv)
"Electronic, mechanical or other device" means any device or apparatus which can
be used to intercept a wire or oral communication, other than:
(A)
Any telephone, telex or telegraph equipment, or component thereof, used in the
ordinary course of business; * * *.
The
equipment used to track the calls to, and from, Saldana's residence was
equipment used by the telephone company to record connections in the interests
of assessing charges in the ordinary course of its business. There is nothing in
the record to indicate it was installed to intercept the contents of any wire or
oral communication in contravention of the statute, and the information it
furnished was specifically obtained for telephone company purposes. It was
released to the authorities only under orders promulgated by virtue of a
lawfully issued subpoena. It follows that, in light of Wyo. Stat. §
7-3-601(a)(iv) (1987), the devise was not an "electronic, mechanical or other
device," and the information obtained by virtue of this equipment was not
"intercepted."
[¶23] We hold that the telephone toll records
Saldana complains of were not "intercepted," and they were not, in fact,
acquired, disclosed, or used contrary to the provisions of Wyo. Stat. §
7-3-602(a) (1987). The increased expectation of privacy the statute affords was
not breached in this instance, and Saldana's claims to the contrary are not
efficacious. In addition, in reaching this result, we recognize that the
acquisition of telephone number information is not "aural acquisition of the
contents of any oral or wire communication by use of an electronic, mechanical
or other device," as is required for a violation of the statute. Wyo. Stat. §
7-3-601(a)(v) (1987) (emphasis added).
[¶24] We next consider Saldana's contention
that the testimony at trial encompassed testimony of an opinion concerning his
guilt and an opinion relating to the credibility of certain witnesses, the
result of which denied him his right to trial by jury. See U.S. Const. amend.
VI;
[¶25] Turning to the matter of the papers
first, the record discloses that Agent Arter testified before the jury that the
two papers taken from the bedroom of the home indicated a long-term trafficking
in controlled substances; that the individuals involved in the trafficking
trusted each other greatly; and that "there was a knowledge of what was in the
package." Specifically, Arter testified:
In
the residence we picked up some papers that were recovered from the master
bedroom of the Saldana residence which indicated to us through our experience,
indicated trafficking in controlled substances, cocaine or something of that
nature, or papers that indicated that there was a knowledge of what was in the
package and that this type of thing had occurred before.
Defense counsel had objected to the admission of these
papers on the ground they were not relevant because no showing was made with
respect to who actually wrote the allegedly incriminating memoranda and because
the handwriting appeared to be that of two different people. Nonetheless, they
ultimately were received into evidence.
[¶26] With respect to identification of the
individual by the other witnesses, the State attempted, during the trial, to tie
one Greg Chisholm, referred to as a known narcotics dealer, into its case. In
making this effort, the State relied in part on testimony provided by Mr. and
Mrs. Cardeilhac, the owners of a resort area known as the Oregon Trail Lodge.
Both Mr. and Mrs. Cardeilhac claimed they had observed a blond male in and
around their property during the month of February. This fact was relevant in
light of earlier testimony indicating that an individual identified as "Hilario
Torres" had registered at the motel at approximately the same time. When shown a
photograph of Chisholm, both of the Cardeilhacs testified the individual in the
picture resembled the blond male they had observed, but they could not be
certain it was the same man.
[¶27] The State recalled Agent Arter, and he
was permitted to testify as follows:
What
I did was I got a stack of photographs. I took a stack of individuals that are
known to be involved in this case, the defendant, Maro Saldana, I took a
photograph of Federico Saldana, Umero Saldana, Amato Saldana, Greg Chisholm,
Hilario Torres, and I believe there was it. There were 7 or 8
pictures.
Defense counsel objected to the introduction of the
photograph and the surrounding testimony on the ground that the witnesses who
had testified were unable to make a positive identification of the parties
allegedly involved. The defense argued that introduction of the evidence would
be unduly and unfairly prejudicial under such circumstances. That objection was
overruled by the court, and Arter was permitted to continue with this
subject.
[¶28] Arter's testimony then was:
There was one other - I just remembered there was Henry
Castro's photo, also. He was also someone I felt was tied into this case. I
showed the photographs to the individuals, in a stack, and I explained to them
just to - look at the face and page through them. There was no order that the
photographs were in. They were just random.
They
went through and immediately discarded several of them, stated that they had
never seen the individual. They stopped at one and said he looked vaguely
familiar; and when they got to the photograph of Greg Chisholm they both
stopped, independently, and said this individual had been there, had been
contacted for making numerous phone calls. There were problems with the phone
calls. They told me the entire story about the phone calls, but both Mr. and
Mrs. Cardeilhac both independently identified Greg Chisholm as the individual in
that room that day.
[¶29] In addressing Arter's testimony,
Saldana specifically objected to the testimony concerning how the papers taken
from his bedroom tended to establish prior drug trafficking and his knowledge
that the package contained cocaine. Saldana also contends there was error on the
part of the trial court in permitting Arter to testify that the quantity and
purity of the substance demonstrated it was meant for distribution and the
telephone calls between his residence and the residences of his brothers, and
between his residence and the Oregon Trail Lodge, established that Saldana and
his brothers were trying to let each other know what was going on regarding the
missing package. Saldana's argument is that all of these subjects reflected
directly on his guilt, and Agent Arter was offering an opinion as to his guilt.
Finally, Saldana objects to the testimony concerning the identifications or the
lack of identifications by Mr. and Mrs. Cardeilhac as well as Arter's testimony
regarding the dismissal of Torres as both amounting to comments on the
credibility of witnesses.
[¶30] In Stephens v. State, 774 P.2d 60, 66
(
Ordinarily, the opinion of a lay or expert witness is not
admissible if it amounts to a conclusion of law or a mixed conclusion of law and
fact. Thus, a witness may not state his opinion as to * * * whether the
defendant was guilty or innocent of the crime charged; * * *.
The
court then held that "permitting a witness, lay or expert, to articulate an
opinion as to the guilt of the accused constitutes plain error and demands
reversal." Stephens, 774 P.2d at 67. See also Phillips v. State, 835 P.2d 1062
(
[¶31] In addition to the testimony of Agent
Arter, quoted above with respect to the papers seized during the search of the
Saldana residence, Saldana points to the following testimony by Agent Arter as
also encompassing a comment on his guilt:
In
the residence we picked up some papers that were recovered from the master
bedroom of the Saldana residence which indicated to us through our experience,
indicated trafficking in controlled substances, cocaine or something of that
nature, or papers that indicated that there was a knowledge of what was in the
package and that this type of thing had occurred before.
and
additionally:
Q.
Now agent Arter, let's talk a little bit about 4 1/2 or 4 ounces plus of
cocaine?
A:
Yes sir.
Q:
First of all, have you ever seen it in rock form like that before?
A:
Yes, I have, on many occasions.
Q:
And does that in itself signify something based on your experience?
A:
Based on my experience, it signifies it is for further distribution. Cocaine in
that rock form means it was probably cut off a kilo size chunk of it. Cocaine
when it is made and formed and shipped, it is shipped in kilo size packets in
the rock, compressed form like that. When it is - when we intercept it in that
way, it is either by a big dealer who is selling it, or through other people who
are going to refine it to break it down into usable amounts, add adulterants to
it, and then further put it out to the street to people that are actually going
to use it.
It
is very seldom we find someone for their personal use or someone who is not a
distributor that has rock form of hydrochloric cocaine or cocaine hydrochloride
in its form like that. It is usually in a powder already broke down and already
cut, basically.
* *
* * * *
Q:
What is the basic, bottom-of-the-line amount in a street transaction,
usually?
A:
Usually - and it varies from area to area - the area we work in the southeast
here, we see deals that go for grams and as little as quarter grams, a quarter
gram going for $25. The quarter gram is the basic user amount. What usually
happens is a person who is buying will buy a gram itself, being about a hundred
dollars worth. He will buy that gram. He will take half of it for his own
personal use and not cut it. He will cut something else into the other half to
equal his whole gram again, and then he will resell that gram either as a full
gram or half gram or quarter gram to someone else. It is cut, cut down again. It
is pretty weak as far as he is concerned, but he got half a gram of cocaine for
his own use for that day, but he didn't spend a cent because he is getting his
money back. That is the basic level we will see in this area.
Q: A
quarter gram, when you get down to a quarter gram, that's what you
use?
A:
Basically, yes sir.
Q:
And what usually - what has been the purity found in those quarter gram
transactions?
A:
Again, that varies from who you are getting it from, what the dealer is, who he
is selling it to. Because if he is going to establish a clientele, he will keep
it at a little higher level of purity. We have bought as low as 6 percent
purity.
The
normal, I would say, is somewhere between 20 and 25 percent, 20 to 25 percent
being the cocaine, the other 75, 80 percent being some sort ever [sic] additive,
adulterate.
* *
* * * *
Q:
So you are confident in the proposition that these 4 ounces plus of cocaine that
you seized was not a consumer amount or quantity?
A:
No sir, I can't testify that one person was going to cut it down to the amounts
we are talking about and sell it [out], but it was for distribution somewhere to
be cut and put out in the streets in about 20 to 25 percent purity.
The
specific testimony, furnished on redirect examination, regarding the
significance of the long distance telephone calls was as follows:
Q:
So there is a suggestion here, perhaps, that members of the defendants family
were calling other family members to let them know what was going
on?
A:
Yes.
[¶32] The selection of the particular
testimony to which Saldana now objects suggests he would have us extend the
holding in Stephens to reach, and exclude, all opinion testimony, expert or not,
on any issue that could go to proving an element of the crime charged. Saldana's
view is that any analysis offered by a witness on the evidence presented at
trial is equivalent to a direct, and thus impermissible, comment on the
defendant's guilt. We are not inclined to accept this premise, especially in
light of the provisions of Wyo.R.Evid. 702 that permit opinion evidence even on
an ultimate issue. Stephens; McCabe v. R.A. Manning Constr. Co., 674 P.2d 699
(
[¶33] The inquiry by the court when claims
like this are raised, assuming that proper objections are presented, must be
whether the testimony sought to be elicited will constitute a direct, and
therefore impermissible, opinion with respect to the innocence or guilt of the
accused or whether it is nothing more than related information offered to assist
the jury in resolving the factual issues placed before it. See
[¶34] In our view, contrary to the
contentions of Saldana, the comments of Agent Arter were not offered as opinions
concerning Saldana's guilt; taken by themselves, they could be construed as not
even directly implicating Saldana. The average person, a concept that probably
includes at least some jurors in this case, is not knowledgeable with respect to
matters involving commerce in cocaine. We perceive these comments, instead of
being comments on Saldana's guilt, to be statements offered chiefly to the jury
to aid it in understanding and resolving the factual issues of the case. We
understand the devastating impact a witness perceived to be an expert in a
particular field may have when he offers testimony interpreting other evidence
and that testimony is contrary to the interests of the defendant. That does not
require, however, that the jury be isolated in some constructive vacuum under
the pretext all comment on evidence, no matter how unbiased or neutral it might
be, is unfair to the accused. In our jurisprudence, the trial is a search for
the truth, the identification of the truth being within the province of the
jury, and that effort demands the jury be given the benefit of whatever
assistance may lawfully be provided. There was no error in the admission of
Agent Arter's testimony in this case.
[¶35] Much the same thing is true about
Saldana's contentions that Arter commented impermissibly on the credibility of
the witnesses. When cross-examined with respect to the testimony provided by Mr.
and Mrs. Cardeilhac as to their inability to positively identify Greg Chisholm,
Agent Arter testified:
Q:
Now, when they identified this picture, I take it by your testimony it was a
picture of Greg Chisholm; is that correct?
A:
That's correct.
Q:
How positive were they about that identification at that time?
A:
That they had seen this individual, or who he was?
Q:
Well, let's start with that they had seen him?
A:
Mr. Cardeilhac was immediately certain that that was the individual that was
involved in a room and was making all the phone calls. Mrs. Cardeilhac said the
same thing from the get-go. She said when she saw the picture, "I know this guy.
He was the one who made all the phone calls, and I had seen him outside." They
were independently certain of it from the first time they saw the
pictures.
Q:
Now, you used the word "certain." You were sure in your mind that they were
absolutely certain?
A:
In my mind, it was the first time they had ever seen the photo. It was an
initial response that immediately struck to them. You could see their eyes lit
up that they recognized him from somewhere, and their first words were the words
that came out.
I
have a tendency to agree with that rather than when they get to the stand and
are trying to swear to something. They were convinced. They have since talked
themselves out of it.
Q:
So you think what they told you makes more difference than what they say
here?
A: I
don't know that I said that. I hope you didn't understand that.
[¶36] This court has held, on reasoning
similar to the rationale in Stephens, that it is error for an expert witness to
comment on the credibility of another witness. Zabel v. State, 765 P.2d 357
(
[¶37] Viewed superficially, this testimony
may appear to be contrary to Zabel because it does contravene statements made by
the Cardeilhacs without providing any additional information helpful to the
jury. We recognize, however, that this testimony was elicited by defense counsel
in cross-examination of a key prosecution witness. It was not developed by the
State. For that reason, there is no need to analyze its impact. If the error was
made, it was the error of the defendant, not that of the State of
[¶38] With respect to Arter's testimony about
the investigative disposition of the case against Torres, any tie between that
testimony and Torres' testimony is tenuous at best. We see no merit to the
contention by Saldana that Arter's testimony that Torres was not charged because
he was "convinced beyond any doubt that he had no part in this plan to receive
or deliver cocaine" constitutes any comment on the credibility of the witness.
Arter was merely reporting what had happened in connection with the case. As we
noted earlier, there is no requirement that the jury work in a vacuum in order
to insure the guarantees of a fair trial. In concluding the analysis of this
issue, we reiterate the rule that evidentiary matters are generally within the
sound discretion of the trial court, and that discretion will not be overturned
on appeal absent clear indications it has been abused. L.U. Sheep Co. v. Bd. of
[¶39] The next claim to be addressed is
Saldana's contention that the introduction of the papers found in his dresser
drawer violated his right to confrontation. See
Hearsay. - "Hearsay" is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
One
of the papers carried language reading "1 oz. front
[¶40] Saldana's last claim of error obviously
depends upon his success with respect to some of the other claims. We have
resolved those other issues contrary to Saldana's argument. We still consider
the question whether the admissible evidence presented at trial, viewed
collectively, was sufficient to sustain Saldana's conviction. The standard with
respect to sufficiency of evidence is this court's assessment as to whether all
of the evidence presented is "adequate to support a reasonable inference of
guilt beyond a reasonable doubt to be drawn by the finder of fact, viewing the
evidence in the light most favorable to the state." Lopez v. State, 788 P.2d
1150, 1152 (
[¶41] The offense of which Saldana was
convicted is encompassed in Wyo. Stat. § 35-7-1031(a) (1988). That statute
provides, in pertinent part, that "it is unlawful for any person to manufacture,
deliver, or possess with intent to manufacture or deliver, a controlled
substance." At trial, the jury was instructed:
Instruction No. 6
The
necessary elements of the crime of unlawful possession with intent to deliver a
controlled substance, * * *, are:
1.
The crime occurred within the
2.
That the defendant possessed cocaine, a Schedule II narcotic drug controlled
substance;
3.
That the defendant did so possess with a specific intent to deliver cocaine, a
Schedule II narcotic drug controlled substance; and
4.
That the defendant did so knowingly and intentionally.
If
you find from your consideration of all of the evidence that any of these
elements has not been proved beyond a reasonable doubt, then you should find the
defendant not guilty.
If,
on the other hand, you find from your consideration of all of the evidence that
each of these elements has been proved beyond a reasonable doubt, then you
should find the defendant guilty.
[¶42] There is no dispute by Saldana that the
package addressed to Torres was delivered on
Instruction No. 7
The
law recognizes two kinds of possession: actual possession and constructive
possession. A person who knowingly has direct physical control over a thing, at
a given time, is then in actual possession of it.
A
person who, although not in actual possession, knowingly has both the power and
the intention, at a given time, to exercise dominion or control over a thing,
either directly or through another person or persons, is then in constructive
possession of it.
The
law recognizes also that possession may be sole or joint. If one person alone
has actual or constructive possession of a thing, possession is sole. If two or
more persons share actual or constructive possession of a thing, possession is
joint. You may find that the element of possession as that term is used in these
instructions is present if you find beyond reasonable doubt that the defendant
had actual or constructive possession, either alone or jointly with
others.
An
act or a failure to act is "knowingly" done, if done voluntarily and
intentionally, and not because of mistake or accident or other innocent
reason.
[¶43] The State's position is correct that
constructive possession is sufficient to meet the possession requirement in
If a
defendant is sufficiently associated with the persons having physical custody so
that he is able, without difficulty to cause the drug to be produced for a
customer, he can also be found by a jury to have dominion and control over the
drug and, therefore, possession.
[¶44] In the trial in this case, the evidence
presented to the jury was that Torres was an unemployed laborer temporarily
residing in Saldana's basement. It appears from the record that, even though the
package was addressed to him, he had no knowledge of the contents of the package
in its unopened condition. Perhaps more importantly, the record demonstrates
that Saldana went downstairs and brought the package back upstairs when he was
requested to do so by Arter, posing as the delivery man. Under these
circumstances, the reasonable jury certainly is entitled to infer constructive
possession of the controlled substance. Since such a finding is both rational
and plausible, it should not be disturbed.
[¶45] Turning to the element of the intent to
deliver, the jury was provided evidence, again circumstantial, with respect to
Saldana's connection with previously convicted drug dealers. Those individuals
happened to be his brothers. There also was submitted admissible evidence that
the quantity and purity of the cocaine in question was such that it would not be
likely a possessor would have acquired it for personal use. Circumstantial
evidence, which is "proof of facts and circumstances from which the main fact to
be proved reasonably follows according to common experience of mankind," is
sufficient to establish the elements of a crime.
[¶46] In summation, after analyzing all of
the issues presented in this appeal, we conclude: Saldana was not denied the
right to a jury trial because of statements that were admitted allegedly
constituting comments on his guilt or because of testimony allegedly
constituting comment on the credibility of witnesses; the admission of papers
found in his personal dresser drawer did not violate his constitutional right to
confrontation; his telephone records and other evidence derived therefrom were
not seized in contravention of Wyo. Const. art. 1, § 4; and the same telephone
records were not intercepted in violation of Wyo. Stat. § 7-3-601 to -611
(1987). We further determine that the admissible evidence presented at trial
indeed is sufficient to sustain his conviction. The judgment and sentence of the
trial court is affirmed.
MACY,
C.J., files a specially concurring opinion.
GOLDEN,
J., files a concurring opinion.
URBIGKIT,
J., Retired, files a dissenting opinion.
MACY,
Chief Justice, specially concurring.
[¶47] I write only to comment on the dicta in
the majority opinion which states:
The
protection against unreasonable searches and seizures found in the Constitution
of the State of
(Citations omitted.) I do not concur with the idea that in
the future we will blindly follow the United States Supreme Court's
interpretation of the Fourth Amendment to the United States Constitution when we
interpret the Wyoming Constitution.
GOLDEN,
Justice, concurring.
[¶48] I concur in the majority opinion ably
written by Justice Thomas. I write separately to recite my observations about
independent state constitutional analysis, since that topic appears as the
centerpiece of the dissenting opinion.
[¶49] Appellant promised in his appellate
brief to show that his telephone records and the derivative evidence were seized
in violation of Wyo. Const. art. 1, § 4.1 He described
this seized evidence as being the "linchpin of the state's case" against him.
Unfortunately, his brief and argument did not fulfill the promise. He cited King
v. State, 780 P.2d 943, 959 (
[¶50] Appellant urges us to adopt the
reasoning in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), a leading case
holding that the Washington Constitution's analogue to the Federal
Constitution's Fourth Amendment provides greater protection than the Fourth
Amendment for the privacy of telephone records. He asks us, therefore, to hold
that the Wyoming Constitution provides greater protection than the Federal
Constitution for his privacy interests. The problem is that appellant must do
much more than ask; he must show. That also is the problem of the dissenting
opinion. In its zealous rush to take the majority to task for following federal
law on the search and seizure issue, it has overlooked cardinal principles of
appellate judicial process and state constitutional law.
[¶51] In countless decisions this court has
warned litigants "[i]n the presentation of an appeal to our court, it is
inadequate simply to allude to an issue or identify only a potential issue."
Kipp v. Brown, 750 P.2d 1338, 1341 (
[I]t
is not the function of this court to frame appellant's argument or draw his
issues for him.
This
court consistently has refused to consider positions which are not supported by
cogent argument or pertinent authority. We are not required to consider on
appeal grounds which were neither presented to * * * nor passed upon [by the
trial court].
Hance v. Straatsma, 721 P.2d 575, 577-78 (
[¶52] Appellant identifies the potential
state constitutional issue but fails to support his claim by cogent argument or
pertinent authority. This court may not frame and make his argument for him.
Having found Gunwall, appellant needed to recognize that the Washington Supreme
Court analyzed the issue on state constitutional law grounds only because
appellant had squarely raised, briefed, and argued the issue on those grounds.
The court set out a list of useful "non-exclusive neutral criteria"
which
are
relevant in determining whether, in a given situation, the Washington State
Constitution should be considered as extending broader rights to its citizens
than the United States Constitution: (1) the textual language; (2) the
differences in the texts; (3) constitutional history; (4) preexisting state law;
(5) structural differences; and (6) matters of particular state or local
concern.
Gunwall, 720 P.2d at 811. I recommend this analytical
technique to our practicing bar.2
[¶53] In the case at hand, appellant used
neither the Gunwall analytical technique nor any other analytical technique
appropriate to brief and present a state constitutional law argument. The
Washington Supreme Court handles such failures swiftly and surely, as we should
also. In refusing to consider the issue, that court colorfully expressed its
position when it said:
As
expressed by the Eighth Circuit, "Naked castings into the constitutional sea are
not sufficient to command judicial consideration and discussion."
In
re Request of Rosier, 105 Wn.2d 606, 717 P.2d 1353, 1359 (1986).
Litigants would do well to remember:
Recourse to our state constitution as an independent source
for recognizing and protecting the individual rights of our citizens must spring
not from pure intuition, but from a process that is at once articulable,
reasonable and reasoned.
Gunwall, 720 P.2d at 813.
[¶54] Justice Robert F. Utter of the
Washington Supreme Court is one of the leaders in the effort to foster and
promote the development of state constitutional law.3 Speaking for
his court in a case in which the appellant had perfunctorily raised but not
briefed the issue whether the self-incrimination provision of the Washington
Constitution conferred a right to Miranda like warnings, Justice Utter
said:
By
failing to discuss at a minimum the six criteria mentioned in Gunwall, he
requests us to develop without benefit of argument or citation of authority the
"adequate and independent state grounds" to support his assertions. See
State v. Wethered, 110 Wn.2d 466, 755 P.2d 797, 800-01
(1988).
[¶55] Most state appellate courts exercise
similar judicial restraint in this important area. Justice Utter observes that
"[a]lmost 80% of the state supreme court justices responding to a recent survey
indicated that their court would decline to hear a state constitutional claim if
the litigant failed to raise the claim below."4 Illustrative
of this restraint are decisions from
The
state constitutional issue has been squarely raised, but neither party has
presented any substantive analysis or argument on this issue. This constitutes
inadequate briefing, and we decline to address the state constitutional question
on the basis of the record now before this court.
State v. Jewett, 146
[¶56] Justice Judith S. Kaye of the New York
Court of Appeals, also a leader in this movement, agrees with that said in
Jewett:
A
grudging parallel citation to a state constitution, or an argument that the
state particularly values the rights of its citizens, in a brief devoted to
federal law does nothing to aid in the development of state jurisprudence, so
that everyone can know from reading a particular state court's decisions what
factors would impel that court to decide one way or the other. Only by the
customary process of research and reasoning can there be principled development
of a body of state constitutional law that does not seek merely to sidestep
review by the
Judith S. Kaye, A Mid-Point Perspective on Directions in
State Constitutional Law, 1 Emerging Issues in State Constitutional Law, 17, 24
(1988).
[¶57] In Wisconsin, Justice Shirley
Abrahamson, also a well-recognized leader in state constitutional law issues,5 wrote for the court in State v. Pitsch, 124
Wis.2d 628, 369 N.W.2d 711, 721 (1985), in deciding an issue of claimed
ineffective assistance of trial counsel. She correctly observed that when the
litigants present and argue a claim only under the Federal Constitution, the
court must apply federal law in analyzing the claim. Pitsch, 369 N.W.2d at 718.
Because the litigants failed to develop the claim under the Wisconsin
Constitution, the court properly declined to consider it on state constitutional
grounds. Pitsch, 369 N.W.2d at 721.
[¶58] In
We
have not considered separate state constitutional standards, even though we are
aware that other states are relying with increasing frequency on an analysis of
the provisions of their own constitutions to expand constitutional protection
beyond that mandated by the United States Supreme Court. * * * Since it was not
raised here, we do not treat that question. We note, however, that despite our
willingness to independently interpret
Earl, 716 P.2d at 805-06 (citations omitted). Accord, State
v. Lafferty, 749 P.2d 1239, 1247 n. 5 and accompanying text (
[¶59] The Wyoming Supreme Court continues to
be willing to independently interpret the provisions of the Wyoming
Constitution. But it is imperative that
URBIGKIT,
Justice, Retired, dissenting.
[¶60] What this decision determines is that
[¶61] This decision also determines that the
provisions of the Wyoming Constitution, which secure a right of privacy and
place limitations on search and seizures, provide no significant additional
protection to our citizens. Instead, the court accepts a "lockstep" application
which limits the protection of the state constitution to that which is decreed,
from case-to-case, by the United States Supreme Court in analysis of our federal
constitution.
I.
INTRODUCTION
[¶62] What is the significance of the Wyoming
Constitution and its Bill of Rights with thirty-six individual provisions stated
in Wyo. Const. art. 1? I contemplate, without pleasure, that this decision to
adopt federal constitution "lockstep" mandates an answer of essentially nothing.
I strongly reject the outdated and uninformed conclusion enveloped by the
concept that gives the
[¶63] This appeal presents
constitutionally-involved search and seizure questions. The decisive answer is
which constitution? In this case, this court, by almost slight of hand, abandons
our heritage of an independent analysis and application of our own constitution.
We have removed our former protections from the meandering and the week-by-week
changes of the United States Supreme Court which has embarked upon an
accelerated direction to reduce, remove or differentiate the protection of
people's rights from government. These were the rights created in solemn concern
by the founders of this nation and written into the United States Constitution
as the Bill of Rights by the first ten amendments. More importantly, these are
the rights explicitly designed into this state's Constitution upon adoption a
century ago. We do not here honor our responsibility to support, obey and
defend, Wyo. Const. art. 6, § 20, by joining in the present major judicial trend
for state courts to independently apply guarantees of rights enunciated in the
individual state constitutions, some of which predate the United States
Constitution. William J. Brennan, Jr., State Constitutions and the Protection of
Individual Rights, 90 Harv.L.Rev. 489 (1977); Shirley S. Abrahamson, The Matthew
O. Tobriner Memorial Lecture. Divided We Stand: State Constitutions in a More
Perfect
[¶64] It is stated in one comprehensive legal
article: "From 1970 to 1984, state courts handed down over 250 opinions holding
that state constitutional protection of individual liberties was greater than
that afforded by their federal counterparts." Foster A. Stewart, Jr., Comment,
The Role of New Federalism in
[¶65] We should have taken heed in this
decision of "a tale of two states." Compare
Professor Gardner accurately depicts the depressed
condition of state constitutional discourse in many jurisdictions. From that
perfectly reasonable premise, he moves to an argument that state courts should
abandon their attempts to improve it because that endeavor is inherently
impossible and, in any event, undesirably schismatic. This argument ultimately
fails, because he provides no convincing evidence that the development of
sophisticated and vigorous state constitutional law is either impossible or
unwise. By contrast,
[¶66] I refuse to accept that condition of
permanent judicial failure for
[¶67] The developed literature is near
unending since Justice William A. Brennan, Jr. enunciated his classical
federalist concept asking for independent state constitutional application in
Brennan, supra, 90 Harv. L.Rev. 489 about sixteen years ago. Much will be
explored in this dissent about this court's present analysis and decision which
will undoubtedly come to be one of its major actions during this century. At
least that will be true as long as "lockstep" lasts into the future which is
directly contrary to our independent history of the past century. To be
addressed first will be the substantive appellate issues and then the
preclusively important concern about what, in bitter analysis, is frequently
characterized to be "lockstep" constitutional adjudication.
[¶68] May it suffice in introduction to
repeat the analysis of "lockstep" enunciated within a most difficult case
involving the rape of a fifteen year old girl who requested an abortion, which
was discriminatorily denied because of indigency. The
The
Bill of Rights, major portions of which are made applicable to the states by
virtue of the Fourteenth Amendment, is derived from state constitutional
provisions which predate the adoption of the federal constitution. As the court
said in People v. Brisendine, 13 Cal.3d 528, 550, 119
"It
is a fiction too long accepted that provisions in state constitutions textually
identical to the Bill of Rights were intended to mirror their federal
counterpart. The lesson of history is otherwise: the Bill of Rights was based
upon the corresponding provisions of the first state constitutions, rather than
the reverse. `By the end of the Revolutionary period, the concept of a Bill of
Rights had been fully developed in the American system. Eleven of the 13 states
(and
"We
need not further extend this opinion to trace to their remote origins the
historical roots of state constitutional provisions. Yet we have no doubt that
such inquiry would confirm our view of the matter. The federal Constitution was
designed to guard the states as sovereignties against potential abuses of
centralized government; state charters, however, were conceived as the first and
at one time the only line of protection of the individual against the excesses
of local officials."
Doe
v. Director of Dept. of Social Services, 187
[¶69] I emphatically, specifically, and
totally reject the majority dicta which is overtly intended to bring
The
protection against unreasonable searches and seizures found in the Constitution
of the State of
* *
* * * *
Under the Tenth Amendment to the United States
Constitution, the freedom of the state to provide greater expectations of
privacy for its citizens than those provided under the federal constitution is
guaranteed if, in either its legislative or judicial discretion, it deems it
necessary or appropriate to do so. * * * Increased protection could be afforded
to
(Emphasis added.)
[¶70] What this will mean is that the
II.
SUBSTANTIVE ISSUES IN THIS APPEAL
A.
Right to Privacy - Wire Tapping - Warrantless Search
[¶71] Appellant designated six issues in his
extended appellate brief. In reality, guilt was proved by three questionable
evidentiary developments. First was the use of federal resources to obtain
telephone records contrary to the protection provided by state law. This was
followed by the drug investigator's testimony, stated as expert witness opinion,
which was directed to authenticate appellant's guilt. Third is the questionable
use of hearsay documents.
[¶72] The conviction can only be affirmed by
justification of each of these elements as conjunctively used to prove guilt. I
agree with the majority's conceptualization of none of them. Unfortunately, at
this juncture, neither time nor space justifies exhaustive research in this case
to state why I disagree in all three parts of the affirming decision, except for
the one that created the carrier for the dictum statement of limited state
constitutional right application (lockstep). That issue is the acquisition by
federal administrative subpoena of telephone call records and the subsequent use
of the recording in the state court prosecution as evidence of
guilt.
[¶73] It is important to recognize that
[¶74] What we have here are documents
acquired in contravention of explicit decisions of the Wyoming State Legislature
and then used as evidence in the state courts by a "gift" from federal
authorities. Stated otherwise, what we have here are documents acquired in a
fashion not permitted by either
[¶75] In regard to the telephone calls, we
are not faced so much with right to privacy concerns. Today's unfortunate
reality is that anyone in business or government who does not assume his or her
telephone calls may be intercepted or checked is naive. The vice in this case is
admission into evidence of what is clearly obtained without right under state
law. This generally presents the "which is the biggest problem" syllogism or
whether "the end always justifies the means." In this case, in open court, the
state drug agent admitted that no authority in state law existed for the
acquisition he undertook; so, he used federal sources. Categorically stated, for
the state court prosecution, this constituted illegally obtained
evidence.
[¶76] What I particularly dislike is this
court's blase acceptance that telephone call interception, without following our
state laws, is socially acceptable and legally proper where it is decided the
end will justify the means. My reasoned anticipation of what is occurring does
not lead to acceptance that constitutional or statutory prohibitions and
preclusions are administratively repealed and rescinded by a course of conduct
of agents of the federal government. With that predicate, I address the
majority's differentiation of telephone user identification as acceptable while
what may be said (probably also intercepted with regularity) limits the sweep of
the anti-wire tap - get a search warrant on probable cause -
B.
Wire Tapping - Pen Register -
[¶77] We need to look at this entire statute,
Wyo. Stat. §§ 7-3-601 through 7-3-610; 1985 Wyo. Sess. Laws ch. 121; 1987 Wyo.
Sess. Laws ch. 157, for proper construction. Allied-Signal, Inc. v.
[¶78] There is really no dispute about the
absence of any right under state law for law enforcement personnel to obtain
administrative subpoena information in the fashion portrayed here. This is the
reason for the state drug agent using the federal authorities. The fact of
acquisition, contrary to state law, hardly makes the information admissible. It
is unquestioned in this record that no effort was made by the state
investigative authorities to comply with the authorizing processes provided in
the state wiretap statutes, Wyo. Stat. §§ 7-3-602, 7-3-605, and 7-3-606. Those
statutes stated:
(a)
Except as provided in subsection (b) of this section, no person shall
willfully:
(i)
Intercept any wire or oral communication;
(ii)
Disclose to another person the contents of any wire or oral communication,
knowing or having reason to know that the information was obtained through the
interception of a wire or oral communication in violation of this
section;
(iii) Use the contents of any wire or oral communication
knowing or having reason to know that the information was obtained through the
interception of a wire or oral communication in violation of this
section.
(b)
Nothing in subsection (a) of this section prohibits:
* *
* * * *
(v)
A peace officer from intercepting, using or disclosing to another peace officer
in the course of his official duties any wire or oral communication pursuant to
an order permitting the interception under this act[.]
(a)
The governor, the attorney general or the district attorney within whose
jurisdiction the order is sought in conjunction with the attorney general may
authorize an application to a judge of competent jurisdiction for an order
authorizing the interception of wire or oral communications by the Wyoming
division of criminal investigation or any law enforcement agency of the state
having responsibility for investigation of the offense for which the application
is made, if the interception may provide evidence of an attempt to commit,
conspiracy to commit, solicitation to commit or the commission of any of the
following felony offenses or comparable crimes in any other
jurisdiction:
(i)
Violations of the
(a)
Each authorized application for an order permitting the interception of wire and
oral communications shall be made in writing upon oath or affirmation to a judge
and shall state the applicant's authority under W.S. 7-3-605(a) to make the
application. Each application shall include the following
information:
(i)
The identity of the peace officer;
(ii)
A full and complete statement of the facts and circumstances relied upon by the
applicant to justify his belief that an order should be issued,
including:
(A)
Specific facts concerning the particular offense that is being
investigated;
(B)
A particular description of the nature and location of the equipment from which,
or the place where, the communication is to be intercepted;
(C)
A particular description of the type of communication sought to be
intercepted;
(D)
The identity of the person or persons, if known, who are suspected of committing
the offense and whose communications are to be intercepted.
(iii) A complete statement as to whether or not other
investigative procedures have been tried and have failed, or why they reasonably
appear to be unlikely to succeed or too dangerous;
(iv)
A statement of the required duration of the interception. If the nature of the
investigation will require that the interception not automatically terminate
when the described type of communication has been first obtained, the
application shall state facts sufficient to establish probable cause to believe
that additional communications of the same type will occur after the initial
interception;
(v)
A full and complete statement by the applicant concerning all previous
applications known to have been made to any judge:
(A)
For permission to intercept wire or oral communications involving any of the
same persons, equipment or places specified in the application; and
(B)
Action by the judges on each previous application.
C.
Smith v.
[¶79] The majority builds its expostulation
as to why unlisted numbers, which admittedly were not available to investigating
officers in Wyoming, should be admissible evidence when acquired through federal
resources by reliance on Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61
L.Ed.2d 220 (1979). Smith was a pen register case which set a federal standard
seldom followed in state courts and never in the context of conspiratorial or
conjunctive efforts as is the evidence here. Additionally, it must be recognized
that the pen register discussion of Smith did not account for explicit statutory
provisions relating to "information concerning the identity of the parties
participating in the communication * * *." Wyo. Stat. § 7-3-601(a)(iii).
Explicitly, the Wyoming legislature intended to reject the pen register concept
by enactment of 1985 Wyo. Sess. Laws ch. 121 and also carefully continued that
thesis into the last amendment provided by 1989 Wyo. Sess. Laws ch.
118.
[¶80] It belies reason to utilize a pen
register case where the equipment itself is illegal, except in certain context:
when the manufacture, assembly, possession or offer for sale is a felony, Wyo.
Stat. § 7-3-603; where intercept means the "aural acquisition of the contents",
Wyo. Stat. § 7-3-601(a)(v); and where contents include "information concerning
the identity of the parties participating * * *." Wyo. Stat. §
7-3-601(a)(iii).3 If the thesis with which we are presented in
the "lockstep" approach is to attribute to the Wyoming Constitution a confined
attribute, unless the legislature adopts an expansive view, then the application
of a case such as Smith in the face of the explicit
Just
as one who enters a public telephone booth is "entitled to assume that the words
he utters into the mouthpiece will not be broadcast to the world," Katz v.
United States, [389 U.S. 347, 352, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967)], so
too, he should be entitled to assume that the numbers he dials in the privacy of
his home will be recorded, if at all, solely for the phone company's business
purposes.
Smith, 442
[¶81] We start this examination with the
contention of the State, true or false as it may actually have been, that there
was no way under state law that law enforcement could acquire the information
desired by some probable cause, judicially issued, warrant; and consequently,
that resort to federal administrative subpoena was justified. This contemplates
an examination of a reverse "silver platter doctrine" concept.
[¶82] Following that examination, we are then
faced with the inquiry of whether identification, e.g., pen register or
something else as in this case, does not constitute a search since it only
breaches privacy by providing identification of the caller's telephone number or
the recipient's telephone number. Consequently, the identification provides
information locating the calling or called party's name and address.
[¶83] Finally, the weighty question, under
the structure of the majority's accommodative dictum, is whether the privacy
rights of Wyoming citizens, as guaranteed through our constitution with its
preclusion against unreasonable searches and seizures, should be limited by
federal case law, albeit United States Supreme Court or otherwise. Essentially,
what all of this means is an advance determination that either congressional
action or United States Supreme Court decisions will always limit the protection
guaranteed in the Wyoming Constitution.
[¶84] The majority opinion has included an
impressive lineage of United States Supreme Court decisions, apparently, to
authenticate that there is no right of privacy in your telephone number or the
usage that you make from it under the prohibition of unreasonable searches and
seizures of Wyo. Const. art. 1, § 4. We can classify those cases with some
degree of realism by finding they have no persuasive relevance. We should then
look, in fresh perspective, at the 1992 controlling philosophy involved in
independent constitutional application of a state supreme court and the state's
independently applied guarantees of rights within the state
constitution.
[¶85] I need not, in the sense of accuracy
and completeness, pursue the issue of what constitutes probable cause under the
pen register, court order requirement statutes or, for that matter, the federal
law since the legislature of this state has not seen fit to authenticate that
addition to the Wyoming broadly confining and carefully detailed right to
privacy act, Wyo. Stat. §§ 7-3-601 through 7-3-610; 1985 Wyo. Sess. Laws ch.
121. See
[¶86] The federal statute provides a
requirement of thirty days after the expiration of an order or denial that the
issuing judge report to the administrative office of the
D.
No Issue of Retroactivity
[¶87] As it happens, the Communications
Privacy Act, 1985 Wyo. Sess. Laws ch. 121, had an automatic expiration date of
E.
"Silver Platter" is Back in Reverse
[¶88] In addition to the affixation on
[¶89] It would have seemed that the whole
ignoble thesis of "silver platter" had been exculpated from the law decades ago.
Lustig v.
[¶90] "Silver platter," as accurately
identified for the state court systems by Kelley, 57 Cal.Rptr. at 378, 424 P.2d
at 962 in rejection, had a relatively short, but very abrupt, constitutional
interment. The total lack of understanding, of the dysfunctional substance
coming from the rejected alternative source to avoid illegality, is demonstrable
from a footnote in a recent federal case, where the subject actually was not
even governmental agency participation. In
The
so-called "silver platter doctrine" is not to the contrary. In some situations,
evidence illegally obtained by state police cannot be used by federal officials.
Gambino v.
[¶91] The statement both totally
misunderstands the concept of "silver platter" and abjectly misstates the
substantive law. "Silver platter" does not refer to sanitation, it refers to bad
evidence delivered as a "valued gift" on a "silver platter." "The `silver
platter doctrine' operates on assumption that the illegality of the state
seizure has been established. How it has been established is immaterial." Rios
v.
[¶92] The "silver platter" cases were founded
as questions of federal law admittedly premised on more restrictive rules of
admission in those courts than applied within the state court system. The
subject and the substance remain appropriate for validating today's state court
constitutional guarantees where both due process and Fourth Amendment
protections have lost their protective facility in federal law and state courts
have consequently been called to re-examine the concepts enunciated in state
constitutions.
[¶93] The initiating case, which stands as a
bulwark against which broad based attacks of diminished protection are now being
mounted by current decisional processes developing in federal law, was Weeks,
232 U.S. 383, 34 S.Ct. 341. The philosophic magnificence of Weeks reaches back
to the earlier case of Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524,
532, 29 L.Ed. 746 (1886):
"The
principles laid down in this opinion affect the very essence of constitutional
liberty and security. They reach farther than the concrete form of the case then
before the court, with its adventitious circumstances; they apply to all
invasions on the part of the government and its employees of the sanctity of a
man's home and the privacies of life. It is not the breaking of his doors and
the rummaging of his drawers that constitutes the essence of the offense; but it
is the invasion of his indefeasible right of personal security, personal
liberty, and private property, where that right has never been forfeited by his
conviction of some public offense * * *."
Weeks, 232
[¶94] Weeks was then continued in the
dispositive "silver-platter" case of Elkins, 364
"The
effect of the Fourth Amendment is to put the courts of the United States and
Federal officials, in the exercise of their power and authority, under
limitations and restraints as to the exercise of such power and authority, and
to forever secure the people, their persons, houses, papers and effects against
all unreasonable searches and seizures under the guise of law. This protection
reaches all alike, whether accused of crime or not, and the duty of giving to it
force and effect is obligatory upon all entrusted under our Federal system with
the enforcement of the laws. The tendency of those who execute the criminal laws
of the country to obtain conviction by means of unlawful seizures and enforced
confessions, the latter often obtained after subjecting accused persons to
unwarranted practices destructive of rights secured by the Federal Constitution,
should find no sanction in the judgments of the courts which are charged at all
times with the support of the Constitution and to which people of all conditions
have a right to appeal for the maintenance of such fundamental
rights.
* *
* * * *
"* *
* The efforts of the courts and their officials to bring the guilty to
punishment, praiseworthy as they are, are not to be aided by the sacrifice of
those great principles established by years of endeavor and suffering which have
resulted in their embodiment in the fundamental law of the land." [Weeks], 232
[¶95] Weeks further reminds us:
"Accordingly," says Lieber in his work on Civil Liberty and
Self-Government, 62, in speaking of the English law in this respect, "no man's
house can be forcibly opened, or he or his goods be carried away after it has
thus been forced, except in cases of felony; and then the sheriff must be
furnished with a warrant, and take great care lest he commit a trespass. This
principle is jealously insisted upon."
Weeks, 232
[¶96] Case law, as it then developed in the
United States Supreme Court through the intermediate stage of Gambino, 275 U.S.
310, 48 S.Ct. 137, would still not have countenanced what happened here since
Gambino made the test one of police officer cooperation in a joint enterprise.
The agency preclusion of Gambino certainly exists here: "that the rights
guaranteed by the Fourth and Fifth Amendments may be invaded as effectively by
such cooperation as by the state officers acting under direction of the federal
officials."
[¶97] Although Justice Frankfurter came to
dissent in Elkins, 364 U.S. at 233, 80 S.Ct. at 1453, the predicate principal of
Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) also requires
recognition and application. Wolf determined that evidence which was
unconstitutionally obtained, under purview of the United States Constitution,
was, by application of the due process clause, inadmissible in the state court
proceedings. Enunciated in Wolf, 338
The
security of one's privacy against arbitrary intrusion by the police - which is
at the core of the Fourth Amendment - is basic to a free society. It is
therefore implicit in "the concept of ordered liberty" and as such enforceable
against the States through the Due Process Clause. The knock at the door,
whether by day or by night, as a prelude to a search, without authority of law
but solely on the authority of the police, did not need the commentary of recent
history to be condemned as inconsistent with the conception of human rights
enshrined in the history and the basic constitutional documents of
English-speaking peoples.
[¶98] In Elkins, 364
Long
before the Court established that the Fourteenth Amendment protects the security
of one's privacy against arbitrary intrusion by state officers, Mr. Justice
(then Judge) Cardozo perceived a basic incongruity in a rule which excludes
evidence unlawfully obtained by federal officers, but admits in the same court
evidence unlawfully obtained by state agents. "The Federal rule as it stands is
either too strict or too lax. A Federal prosecutor may take no benefit from
evidence collected through the trespass of a Federal officer. . . . He does not
have to be so scrupulous about evidence brought to him by others. How finely the
line is drawn is seen when we recall that marshals in the service of the nation
are on one side of it, and police in the service of the States on the other. The
nation may keep what the servants of the States supply. . . . We must go farther
or not so far. The professed object of the trespass rather than the official
character of the trespasser should test the rights of government. . . . A
government would be disingenuous, if, in determining the use that should be made
of evidence drawn from such a source, it drew a line between them. This would be
true whether they had acted in concert or apart." People v. Defore, 242 N.Y. 13,
22-23, 150 N.E. 585, 588.
[¶99] He wrote further in
analysis:
For
surely no distinction can logically be drawn between evidence obtained in
violation of the Fourth Amendment and that obtained in violation of the
Fourteenth. The Constitution is flouted equally in either case. To the victim it
matters not whether his constitutional right has been invaded by a federal agent
or by a state office. It would be a curiously ambivalent rule that would require
the courts of the
Elkins, 364
[¶100]
The writer then, of course, went from his concept of logic and symmetry
to consider the presently divisive point of departure - accuracy versus due
process. In the end result, "silver platter" admissibility of evidence in the
federal court system was terminated. See also, Rios, 364
F.
[¶101]
We should follow
[¶102]
Although the right to privacy and its protection against governmental
intrusion does not appear to have special constitutional significance for the
United States Supreme Court, the courts of the states have not, so ungenerously,
rewritten their own state constitutions. See Smith v. State, 510 P.2d 793
(
[¶103]
The corrosion, from the legitimatizing of the pen register, is observed
when information obtained from the pen register is utilized to obtain a search
warrant upon which a further incursion into eavesdropping privacy may then be
legitimatized justifying an otherwise unsupported warrant. In result, the
ultimate warrant is inverted and corroded by the original pen register tool
which can pervasively be used to invade residential privacy. Yanez, 577 N.Y.S.2d
621; People v. Baker, 174 A.D.2d 815, 570 N.Y.S.2d 857 (1991); People v. Spano,
170 A.D.2d 996, 566 N.Y.S.2d 152 (1991); Fata, 559 N.Y.S.2d 348; People v.
Bachiller, 159 A.D.2d 955, 552 N.Y.S.2d 785 (1990).
[¶104]
It is noteworthy that the
[¶105]
What this means is the principal authority used in the majority opinion,
Smith, 442
The
fallacy in the Commonwealth's reliance on Smith is the implicit assumption that
our state constitution provides no greater protection against the installation
and use of pen registers than the federal constitution provides. Although Smith
conclusively decides the extent of the fourth amendment guarantee in this area,
appellants have also asserted their rights under article 1, § 8 of the
Pennsylvania Constitution. We turn now to the state constitutional
claim.
Preliminarily, it cannot be doubted that this state has the
constitutional power to guard individual rights, including the right to be free
from unreasonable searches and seizures, more zealously than the federal
government does under the United States Constitution. Pruneyard Shopping Center
v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Cooper v.
California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Commonwealth v.
Sell, [504] Pa. [46], 470 A.2d 457 (1983); Kroger Co. v. O'Hara Township, 481
Pa. 101, 392 A.2d 266 (1978); Commonwealth v. Harris, 429 Pa. 215, 239 A.2d 290
(1968); Commonwealth v. Walsh, [314] Pa.Super. [65], 460 A.2d 767 (1983). "The
present function of state constitutions is as a second line of defense for those
rights protected by the federal constitution and as an independent source of
supplemental rights unrecognized by federal law." Note, The Interpretation of
State Constitutional Rights, 95 Harv. L.Rev. 1324, 1367 (1982) (emphasis added).
Commentators urge state governments to reflect deeply before deciding whether
state constitutional provisions affecting individual liberties conform to
similar provisions in the federal constitution. W. Brennan, State Constitutions
and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 501 (1977); Note,
The New Federalism: Toward a Principled Interpretation of the State
Constitution, 29 Stan.L.Rev. 297 (1977).
Beauford, 475 A.2d at 788 (emphasis in
original).
[¶106]
The Idaho Supreme Court likewise joined in the independent state
constitutional analysis in reversing the decision in State v. Thompson, 113
Idaho 466, 745 P.2d 1087 (1987), aff'd in part and rev'd in part, 114 Idaho 746,
760 P.2d 1162 (1988). The differentiation, between a pen register surveillance
device and the dialed number recorder (DNR), was noted with analysis that the
impact on privacy was the same.
We
adopt these dissenting comments in Smith as stating the interpretation that
should be given to art. 1, § 17 of the Idaho Constitution as it applies to the
use of pen registers in
Thompson, 760 P.2d at 1167.
[¶107]
The
[¶108]
Since
[¶109]
To justify what occurred to Saldana as a "silver platter" authentication
of illegal evidence under Wyoming law, through Smith or pen register usage
statutes, is absolutely unjustified, if not entirely absurd. We effectuate
criminal misconduct to justify the acquisition of evidence for the proffered
purpose of the criminal prosecution of someone else who has been alleged to have
committed criminal conduct.
[¶110]
The present application of "silver platter" in state courts, earlier
addressed by People v. Kelley, 66 Cal.2d 232, 57 Cal. Rptr. 363, 424 P.2d 947
(1967) in California, follows, in general, a trend stated by 1 LaFave, Search
& Seizure, § 1.5(b) (2d ed. 1987) (footnotes omitted):
When
(as is occurring with greater frequency) a state court finds that a certain
arrest or search passes muster under the Fourth Amendment but that it violates
the comparable provision of the state constitution, there does not appear to be
any dissent from the conclusion that the fruits thereof must be suppressed from
evidence. The rationale for such a result is seldom stated in the cases, but
exclusion in these circumstances may be explained on the ground that a violation
of the fundamental law of the state constitutes such a substantial intrusion
upon the defendant's rights that the exclusionary remedy is just as appropriate
as when the Fourth Amendment is violated.
The
issue of this case, and an increasing number of other cases, develops from the
conduct of federal law enforcement agencies within the same jurisdiction5 seeking to acquire desired evidence, with
expedited processes unavailable under state law, for the use of state law
enforcement agencies. What we have here, and what is occurring with frequency,
is that upon request by state authorities of the federal agencies, the evidence
is obtained under federal process and delivered to the state enforcement
agencies to supply a probable cause basis to then utilize state search and
seizure statutory processes to obtain a warrant to invade the home or business
privacy of the target individual. State v. Valenzuela, 130 N.H. 175, 536 A.2d
1252 (1987), cert. denied, 485
[¶111]
Arguably excluded from a requirement for a warrant to use the pen
register is one case provided by the intermediate appellate court in
[¶112]
It should also be recognized that the philosophical basis for Toone and
the following case, Richardson, 821 S.W.2d 304, of "lockstep," the Texas
constitutional provisions of article 1, section 9 would not be given a more
restrictive standard, was completely obliterated by the Texas Court of Criminal
Appeals in Heitman, 815 S.W.2d 681. Heitman rejected "lockstep" and adopted an
independent application of the state constitution for
[¶113]
Lustig, 338 U.S. 74, 69 S.Ct. 1372 was cited in Toone and completely
misstated in decision in the opinion, as were the non-law enforcement activity
concepts addressed in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed.
1048 (1921). See 1 LaFave, supra, at § 1.8. Lustig, 338
[¶114]
We need not go beyond the cooperation and joint enterprise cases here,
since admittedly
Referring to a joint endeavor between a private person and
a government official, LaFave notes:
"It
is not essential that the government official be involved in the endeavor at the
very outset; cases in this area often apply the rule from Lustig v.
1.
W. LaFave, Search & Seizure, a Treatise on the Fourth Amendment § 1.8(b) at
179-80 (2d ed. 1987).
Lustig, 338
[¶115]
In addition to Abdouch, 434 N.W.2d 317, this identical subject was
comprehensively addressed in New Jersey by State v. Minter, 116 N.J. 269, 561
A.2d 570 (1989); Mollica, 554 A.2d 1315; and Gwinner, 796 P.2d 728. See also
State v. Christensen, 244
[¶116]
The case of State v. Harms, 233 Neb. 882, 449 N.W.2d 1, 7 (1989) reached
the Fourth Amendment conduct of the federal law enforcement personnel, but
recognized participative conduct as a concept in rejecting admissibility of the
evidence obtained by the federal authorities in violation of the federal
constitution:
In
light of Mapp [v.
[¶117]
I apply the same concept, where participative conduct is involved, if the
evidence is obtained in contravention of the state constitution as an improper
search and seizure under the preclusion of Wyo. Const. art. 1, § 4:
The
right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrant
shall issue but upon probable cause, supported by affidavit, particularly
describing the place to be searched or the person or thing to be
seized.
[¶118]
If this court does not enforce that provision, despite our oath of office
requiring justices to "support, obey and defend," Wyo. Const. art. 6, § 20, no
one else in this state is available to accept the responsibility. If one
deserves to view the law involving individual rights with anguish today and
concern tomorrow, a thoughtful reading of Monroe Freedman, Essay, Law in the
21st Century, 60 Fordham L.Rev. 503 (1991), will add further uneasiness. After
dire and terrifying prediction about the status of the law and the justice
delivery system in the year 2050, none of which he finds favorable, Monroe
Freedman then concluded: "In short, nothing is going to change in the next 59
years."
G.
Where the Law of Wire Tap (Pen Register Included) Goes From Here
[¶119]
The issue presented here was not comparable with a Terry stop, Terry v.
[¶120]
We then move to the case of Miller, 425
[¶121]
In reality, we have here a telephone search and seizure not really
different from the classical wiretap situation first considered under a
reasonableness test in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967). Following Katz, the clearly enunciated public policy in
[¶122]
It should be noteworthy that the
[¶123]
Here, we demean and diminish rights or privacy in order to unjusticiably
affirm one criminal conviction.6 I reject that result-oriented
adventure.
III.
NO ENFORCEABLE STATE CONSTITUTIONAL RIGHT WHICH WOULD PROVIDE PROTECTION AGAINST
ADMISSION OF EVIDENCE ACQUIRED WITHOUT COMPLIANCE WITH STATE LAW
A.
What "Lockstep" Means in Lost State Constitutional Rights for
[¶124]
The majority buttresses admissibility of the warrantless pen register
data by denial of any constitutionally guaranteed
[¶125]
Secondly, the authentication of the diminished right in pen register
acquired information stated in Smith, 442 U.S. at 772, 99 S.Ct. at 2597 does not
fit either the Wyoming statute or, more preclusively, the state of the law
provided in federal statutes responding to Smith. It does not fit, furthermore,
with the many state statutes with carefully prescribed processes for judicial
supervision of general acquisition of telephone communication data, which
specifically pertains to pen register interception equipment usage. It is my
perception that this decision, consequently, ignores or misapplies both federal
law and the Wyoming state statute, Wyo. Stat. §§ 7-3-601 through 7-3-610; but,
furthermore, fails to recognize the emergence of authenticating statutes which
has never been chosen by the state legislature to be used in
Wyoming.
[¶126]
It is, however, in a third concept where this decision is most dangerous.
The majority states that, in result,
[¶127]
This is the raw, uncontrolled "lockstep" in which the court confines
protection in this state for search and seizure, and privacy, under the state
constitution to constitutional rights apportioned out by decisions of the
nation's highest court under the Bill of Rights which are emplaced in the United
States Constitution. Specifically, with regard to the right to privacy, this
court essentially invalidates one of the
B.
Wyoming Precedent
[¶128]
Nothing stated by the Wyoming Constitutional Convention membership, when
they convened in July 1889, provides authority or persuasive logic that those
intellectual and influential citizens assumed that the guarantees of Article I
of the constitution that they wrote would only be coextensive with the effect of
the Bill of Rights in the United States Constitution. Unfortunately, a verbatim
record of the session was not maintained and nothing is directly preserved from
committee sessions where most of the drafting was accomplished. Since
[¶129]
Obviously, precedent from the United States Supreme Court can be used for
comparison, but Saldana now stands alone in
[¶130]
In more recent times, an independent right to expanded jury trial
protection for anyone charged with an offense for which a sentence to jail was
possible, was realized by the Wyoming Supreme Court and enforced in Brenner v.
City of Casper, 723 P.2d 558 (Wyo. 1986). This same thesis which was highlighted
and advanced in Brennan, supra, 90 Harv.L.Rev. 489, was cited and recognized in
the case of Cheyenne Airport Bd. v. Rogers, 707 P.2d 717, 726 (Wyo. 1985),
regarding the exercise of police powers. See also Johnson v. State Hearing
Examiner's Office, 838 P.2d 158 (
[¶131]
What is so curious about the approach now adopted by this court in this
case is that it is completely contrary to the attitude provided in decisional
resolution in both Washakie County School Dist. No. One and Brenner on the
equally significant issues of right for education and right to a jury trial upon
criminal prosecution.
[¶132]
We follow
[¶133]
Before exhaustively pursuing these cases, there is another vice in what
is occurring in this decision. We extrapolate a principle in the circumstances
of the Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), cf.
Richard H. Fallon & Daniel J. Meltzer, New Law Non-Retroactivity, and
Constitutional Remedies, 104 Harv.L.Rev. 1733 (1991) and Paul E. McGreal, A Tale
of Two Courts: The
IV.
THE DIRECTION OF AMERICAN LAW TODAY - AN INDEPENDENT ALLOCUTION OF STATE
CONSTITUTIONAL PRECEPTS
[¶134]
There is an almost unlimited supply of texts, legal articles and court
cases which agreeably consider utilization of the state constitution for
decisions regarding rights of citizens of the jurisdiction. None stated with
more simplicity, yet with convincing logic, than the student author in Timothy
Stallcup, Comment, The Arizona Constitutional "Right to Privacy" and the
Invasion of Privacy Tort, 24 Ariz.St.L.J. 687, 693-95 (1992) (footnotes
omitted), where he wrote:
State courts have many reasons to look to their state
constitutions for guarantees of individual rights. The most compelling is the
traditional role of state constitutions as primary protectors of individual
liberties: state constitutions protected individual rights before the enactment
of the Federal Constitution; debate at the Continental Congress resolved that
the states maintain separate, individual constitutions; the powers of the
Federal Government are specifically enumerated, whereas those of the states are
plenary; and prior to incorporation of most of the Bill of Rights under the
Fourteenth Amendment, the first ten amendments explicitly were held inapplicable
to the states.
The
framers of state constitutions, and the voters who adopted them, intended those
constitutions to protect individual rights. Because they are frequently more
recent than their federal counterpart, and more easily changed, a state
constitution may better reflect the history, needs, and desires of the state's
people. Also,
[¶135]
It is witnessed by a requirement for this dissent that in any individual
state, the long term result today is not determinable with certainty. Clearly,
[¶136]
Retired Justice Hans A. Linde of the Oregon Supreme Court concluded in
his contribution for Emerging Issues in State Constitutional Law:
So
the future of the "new federalism" remains doubtful. There is no reason for
confidence that most state courts will systematically decide what their state
constitutions require, either adapting someone's federal analysis or making
their own, before deciding whether their state has violated the nation's
Constitution. Perhaps the best we can hope for is that those judges who do not
abdicate their responsibility outright will put first things first when the case
is properly put to them. How often and how well they do it depends on the
professionalism of the younger generation of advocates in constitutional cases
as well as on the professionalism of the younger generation of
judges.
Hans
A. Linde, Does the "New Federalism" Have a Future?, 4 Emerging Issues in State
Constitutional Law 251, 261 (1991).
[¶137]
Professor Barry Latzer would apparently agree. See Barry Latzer, Into the
'90s: More Evidence That The Revolution Has a Conservative Underbelly, 4
Emerging Issues in State Constitutional Law 17 (1991); see, however, Yvonne
Kauger, Reflections On Federalism: State Constitutions' Role As Nurturers of
Individual Rights, 4 Emerging Issues in State Constitutional Law 105 (1991).
Justice Kauger set the concepts in order by her conclusion:
Travel by train is a wonderful experience. The travel
itself becomes a part of the adventure as you rumble through the countryside.
However, there is always an appropriate place to stop - an appropriate place to
end a journey. This is the point for this article to end. If a purely federal
right is at issue the journey concludes somewhere in the federal system with the
absolute terminal being the United States Supreme Court. However, if a right
guaranteed by the federal Constitution is also recognized by a state
constitution, the train station to seek may well be within the state of origin -
that state's highest court. The prudent train conductor (attorney) will consult
the correct schedule (the state constitution) to guarantee that the passenger
will receive all that is due. A first-class trip does not conclude when only
basic rights are given but when civil liberties and personal rights have enjoyed
their fullest protection.
[¶138]
The flood of case law in state courts demonstrate momentum, if not
absolute unanimity, that the people's protection from the encroachment and
violation by government requires independent review and application of rights
written as guarantees in the separate state constitutions. The cases and
subjects can be mined on rational recitation or even reconciliation, but
adjusted within the topics of privacy, search and seizure, arrest and due
process, a composite of fairly recent cases is particularly illustrative.
[¶139]
Justice Mosk said it best in his concurrence in the case of Sands v.
Morongo Unified School Dist., 53 Cal.3d 863, 281 Cal. Rptr. 34, 61, 809 P.2d
809, 836 (1991), cert. denied, ___ U.S. ___, 112 S.Ct. 3026, 120 L.Ed.2d 897
(1992), where he directed us:
Indeed, as the highest court of this state, we are
independently responsible for safeguarding the rights of our citizens. State
courts are, and should be, the first line of defense for individual liberties in
the federal system. It is unnecessary to rest our decision on federal authority
when the California Constitution alone provides an independent and adequate
state constitutional basis on which to decide.
Symptomatic for this court's minority position in falling
prey to "lockstep," we would recognize the following state resolutions among the
multitude of cases.
A.
Privacy
[¶140]
A pen register invasion of privacy, Sporleder, 666 P.2d 135, is
unconstitutional as an unreasonable search and seizure under the Colorado
Constitution by invasion of a legitimate expectancy of privacy in telephone
numbers dialed by the user. Warrantless search is presumed to be invalid under
the Colorado Constitution. Cf. People v. Guerra, 65 N.Y.2d 60, 489 N.Y.S.2d 718,
478 N.E.2d 1319 (1985); People v. Di Raffaele, 55 N.Y.2d 234, 448 N YS.2d 448,
433 N.E.2d 513 (1982) (declined to extend rights of privacy in New York on this
subject beyond decision of the United States Supreme Court) and Winfield v.
Division of Pari-Mutuel Wagering, Dept. of Business Regulation, 477 So.2d 544
(Fla. 1985) (right of privacy in Florida Constitution is much broader in scope
than the federal constitution including privacy in financial institution
records). See also Shaktman v. State, 553 So.2d 148 (
[¶141]
In
As
we have stated in previous decisions, this court may interpret the Washington
Constitution as more protective of individual rights than parallel provisions of
the United States Constitution. See State v. Simpson, 95 Wn.2d 170, 177-82, 622
P.2d 1199 (1980); State v. Fain, 94 Wn.2d 387, 392-93, 617 P.2d 720 (1980);
Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 615 P.2d 440 (1980);
Northend Cinema, Inc. v. Seattle, 90 Wn.2d 709, 714, 585 P.2d 1153 (1978); State
v. Hehman, 90 Wn.2d 45, 49, 578 P.2d 527 (1978); Darrin v. Gould, 85 Wn.2d 859,
868, 540 P.2d 882 (1975). State v. Michaels, 60 Wn.2d 638, 646-47, 374 P.2d 989
(1962). See generally W. Brennan, State Constitutions and the Protection of
Individual Rights, 90 Harv.L.Rev. 489 (1977).
We
have had two recent occasions to interpret Const. art. 1, § 7 more expansively
than the Fourth Amendment so as to provide additional protection to citizens of
this state. In State v. Simpson, supra, a plurality of this court found that
Const. art. 1, § 7 conferred the right of "automatic standing" to contest
illegal searches and seizures. This interpretation gave greater protections than
those found by the United States Supreme Court in United States v. Salvucci, 448
U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In State v. Hehman, supra, this
court found the Washington Constitution to grant greater protections than the
Fourth Amendment in the area of custodial arrests for minor traffic violations.
* * *
* *
* * * *
The
result reached by the United States Supreme Court in [
[¶142]
In a case involving entry into a hotel room, the Washington court in
State v. Ramirez, 49 Wn. App. 814, 746 P.2d 344 (1987), recognized that the
Washington Constitution afforded greater protection to privacy interests than
the Fourth Amendment, citing State v. Bell, 108 Wn.2d 193, 737 P.2d 254 (1987).
In a search incident to an arrest, the Hawaiian Constitution provides
significantly more confining rights of privacy to the individual in declining to
follow United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427
(1973) and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456
(1973). The Supreme Court of Hawaii in State v. Quino, 840 P.2d 358, 362 (Hawaii
1992) declined to adopt the definition of seizure the United States Supreme
Court utilized in California v. Hodari D., ___ U.S. ___, 111 S.Ct. 1547, 113
L.Ed.2d 690 (1991). The court stated, "`[a]s long as we afford defendants the
minimum protection required by federal interpretations of the Fourteenth
Amendment to the Federal Constitution, we are unrestricted in interpreting the
constitution of this state to afford greater protection.'" Quino, 840 P.2d at
362 (quoting State v. Texeira, 50 Haw. 138, 142 n. 2, 433 P.2d 593, 597 n. 2
(1967)). A federal court, in analyzing pre-employment polygraph testing,
considered a trend of federal cases, Plante v. Gonzalez, 575 F.2d 1119 (5th Cir.
1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979), and
used a balancing test rather than the strict scrutiny analysis for privacy
adopted by the Supreme Court of Texas.
[¶143]
The Massachusetts Supreme Court in Guiney v. Police Com'r of Boston, 411
While I concur with the result reached in this case, I must
reiterate my concern with this court's willingness to consider the "balance" of
public interests against privacy interests in determining the constitutionality
of searches and seizures. * * * Notwithstanding its allusion to the laws of
physics, and their concomitant certainty and precision, a "balancing" test
subjects the constitutional right against unreasonable searches and seizures to
a standard only slightly more enduring than the latest public opinion poll. It
is my firm belief that the use of these tests, no matter how well-intended, will
result in the eventual dissolution of this precious constitutional right. The
focus of the constitutional analysis must remain on the issue whether reasonable
cause exists to justify the particular search and seizure at issue.
Guiney, 582 N.E.2d at 527. That court likewise in Com. v.
Henderson, 411
[¶144]
On the subject of warrantless home arrest, the Washington Constitution
provides greater protection to privacy interests than the Fourth Amendment.
[¶145]
Considering an affidavit for arrest warrant - illegally obtained
evidence, we find State v. Novembrino, 105 N.J. 95, 519 A.2d 820, 849-50 (1987),
which states:
It
is an established principle of our federalist system that state constitutions
may be a source of "individual liberties more expansive than those conferred by
the Federal Constitution." Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81,
100 S.Ct. 2035, 2040, 64 L.Ed.2d 741, 752 (1980); see Oregon v. Hass, 420 U.S.
714, 718, 95 S.Ct. 1215, 1218-19, 43 L.Ed.2d 570, 575 (1975); State v. Gilmore,
103 N.J. 508, 522, 511 A.2d 1150 (1986); "Symposium: The Emergence of State
Constitutional Law," 63 Tex.L.Rev. 959 (1985); Pollock, "State Constitutions as
Separate Sources of Fundamental Rights," 35
This
Court has frequently resorted to our own State Constitution in order to afford
our citizens broader protection of certain personal rights than that afforded by
analogous or identical provisions of the federal Constitution. State v.
Williams, 93 N.J. 39, 459 A.2d 641 (1983); Right to Choose v. Byrne, 91 N.J.
287, 450 A.2d 925 (1982); State v. Hunt, supra, 91 N.J. 338, 450 A.2d 952; State
v. Alston, 88 N.J. 211, 440 A.2d 1311 (1981); State v. Schmid, 84 N.J. 535, 423
A.2d 615 (1980), appeal dismissed sub nom., Princeton Univ. v. Schmid, 455 U.S.
100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982); State v. Johnson, 68 N.J. 349, 346
A.2d 66 (1975). Although the language of article I, paragraph 7 of the New
Jersey Constitution is virtually identical with that of the fourth amendment, we
have held in other contexts that it affords our citizens greater protection
against unreasonable searches and seizures than does the fourth amendment. See
State v. Hunt, supra, 91 N.J. 338, 450 A.2d 952 (individual has protectible
interest in telephone toll billing records under article I, paragraph 7 of the
New Jersey Constitution); State v. Alston, supra, 88 N.J. 211, 440 A.2d 1311
(possessory interest in property sufficient to confer standing to challenge
validity of automobile search); State v. Johnson, supra, 68 N.J. 349, 346 A.2d
66 (validity of consent to search depends on knowledge of the right to refuse
consent).
[¶146]
Warrantless entry of a home in the absence of exigent circumstances or
other necessity raises a right to privacy under the Arizona
Constitution:
While we are cognizant of the need for uniformity in
interpretation, we are also aware of our people's fundamental belief in the
sanctity and privacy of the home and the consequent prohibition against
warrantless entry. We believe that it was these considerations that caused the
framers of our constitution to settle upon the specific wording in Article 2, §
8. While Arizona's constitutional provisions generally were intended to
incorporate the federal protections, Malmin v. State, 30 Ariz. 258, 261, 246 P.
548, 549 (1926), they are specific in preserving the sanctity of homes and
creating a right of privacy.
State v. Bolt, 142
[¶147]
This general subject of privacy, as a constitutional issue under state
constitutions, has a broad and pervasive scope as the small sample of cases
earlier outlined illustrate. In this anxiety, a thoughtful consideration of the
dangers to the intrinsic structure of the American society is illustrated in a
long course of consideration by legal commentators. The point of departure in
considering privacy, of course, came from Samuel D. Warren & Louis D.
Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). See also William L.
Prosser, Privacy, 48 Cal.L.Rev. 383 (1960). That broad subject has now narrowed
for this decision by the dual concepts of no right to privacy regarding numbers
to whom or from whom calls are placed by telephone and the "lockstep"
attribution of United States Supreme Court decisions. An illustrative sampling
of writing from commentators' analyses discloses the depth of concern. See,
e.g., Alan F. Westin, Science, Privacy, and Freedom: Issues and Proposals for
the 1970's, 66 Colum.L.Rev. 1003 (1966) and Gerald B. Cope, Jr., Note, Toward a
Right of Privacy as a Matter of State Constitutional Law, 5 Fla.St. U.L.Rev. 631
(1977). Gerald B. Cope, Jr. said, as he anticipated the future with concern and
with considerable foresight:
Events of the past ten years have brought to the fore
privacy issues on a larger scale. At the same time, retrenchment by the United
States Supreme Court and the report of the Privacy Protection Study Commission
have made it abundantly clear that the right of privacy will be fully protected
only if there is action by the states. It is time to take that step. It is vital
to a free society to establish a zone of privacy in which each individual is
free from physical and psychological intrusion and has the autonomy to make
vital personal decisions. "[T]he right to be let alone," Brandeis said, is "the
most comprehensive of rights and the right most valued by civilized men." It is
time to protect that right - by establishing the right of privacy as a matter of
state constitutional law.
[¶148]
State constitutional guarantees for a right to privacy are alive and
enduring (except in
B.
Equal Protection
[¶149]
For similar consideration within this broad subject, we should also look
at the state equal protection clause. See
[¶150]
The Utah Supreme Court, in Greenwood v. City of North Salt Lake, 817 P.2d
816, 820-21 (Utah 1991) (citing Malan v. Lewis, 693 P.2d 661, 670 (Utah 1984)),
in considering public safety regulation of pitbull breeding, recognized
different equal protection guarantees derived from application of the Utah
Constitution and the results provided under federal law:
Because no fundamental right or suspect class is involved
in this case, the Fourteenth Amendment requires only that the classification be
rationally related to a valid public purpose. * * * [The Utah Constitution]
requires that a law must apply equally to all persons within a class and that
statutory classifications must have a reasonable tendency to further the
objectives of the statute.
[¶151]
State v. Russell, 477 N.W.2d 886 (
To
harness interpretation of our state constitutional guarantees of equal
protection to federal standards and shift the meaning of Minnesota's
constitution every time federal case law changes would undermine the integrity
and independence of our state constitution and degrade the special role of this
court, as the highest court of a sovereign state, to respond to the needs of
Minnesota citizens.
[¶152]
The issue on a certified question to be considered by the Ohio Supreme
Court from the federal district court of that jurisdiction resulted in a
persuasive recognition by the state tribunal:
We
begin with a truism: the Ohio Constitution permits the state to exercise its own
sovereignty as far as the United States Constitution and laws permit. Since
federal law recognizes
Scott v. Bank One Trust Co., N.A., 62
Another federal judge has argued that it matters little if
a federal court errs in applying state law, because if "state law is so unclear
that a federal court, honestly trying to discover and apply it, falls into error
* * * the relevant state policies are so lacking in development and firmness
that their nonapplication in a diversity case is not of very great
moment."
C.
Search and Seizure - Confessions
[¶153]
The subject of expanded protection, in the multiplicity of search and
seizure circumstances, has not been ignored in state constitutional law
development. Recent cases, declining to follow a "lockstep" attribution of the
United States Supreme Court decision making, would include the Massachusetts
Constitution which provides greater protection against unlawful search and
seizure than does the Fourth Amendment. Com. v. Cast, 407
[¶154]
A search preclusion was authenticated in Com. v. Rostad, 410
[¶155]
Another pat-down case was provided in People v. Mathis, 211
[¶156]
A violation of a knock-and-announce rule on entry into a private dwelling
was a violation of a state constitutional prohibition against unreasonable
searches and seizures under the Pennsylvania Constitution. For the violation,
exclusion of the evidence was the appropriate remedy under the
[¶157]
Two of the most persuasive cases coming from jurisdictions which protect
the validity and sanctity of the state constitutions are State v. Geisler, 25
Conn. App. 282, 594 A.2d 985 (1991) and People v. Harris, 77 N Y2d 434, 568
N.Y.S.2d 702, 570 N.E.2d 1051 (1991). In State v. Geisler, 22 Conn. App. 142,
576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), cert. granted
and judgment vacated, ___ U.S. ___, 111 S.Ct. 663, 112 L.Ed.2d 657 (1991)
(Geisler I), the Connecticut court held that warrantless entry into the
defendant's home violated the Fourth Amendment to the United States
Constitution, lacking exigent circumstances to justify the entry. The court held
that evidence derived from the illegal arrest was a tainted product of that
arrest and subject to suppression. The United States Supreme Court reversed and
remanded based on New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d
13 (1990).
[¶158]
The original
[¶159]
In Geisler, the
We,
therefore, reject a per se inclusion of evidence obtained outside a home
following a Payton [v.
We
conclude that the federal exclusionary rule, as narrowed by
Geisler, 594 A.2d at 990.
[¶160]
The coerced confession cases and attribution of applied harmless error
appropriately come within this category of decision making by state courts which
refuse to follow a federal harmless error absolution.
[¶161]
It is the Fourth Amendment cases, involving categories of search and
seizure, where this court further makes an incursion into "lockstep," by dicta,
to which I take the strongest exception. Search and seizure under the Fourth
Amendment or arrest under the Fifth Amendment cases provide the arena where the
more apparent deviation or distinction between state constitutional rights and
the application of the Fourth and Fifth Amendments by the federal court system
can more clearly be discerned. Attacks on the exclusionary rule and utilization
of the
[¶162]
A review, which examines this whole galaxy of issues, is provided by
Daniel J. Capra, Prisoners of Their Own Jurisprudence: Fourth and Fifth
Amendment Cases in the Supreme Court, 36 Vill.L.R. 1267 (1991), where the author
considers checkpoint stops, Michigan Dept. of State Police v. Sitz, 496 U.S.
444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), under some character of a Terry,
392 U.S. 1, 88 S.Ct. 1868 concept. Next considered was anonymous tip information
sufficient to create reasonable suspicion.
D.
[¶163]
Illustrative, for only one of the segments of this array of issues, is
State v. Oakes, 157 Vt. 171, 598 A.2d 119 (1991), where that court declined an
invitation to apply good faith as a justification to fulfill the lack of initial
probable cause. The
The
decision in Edmunds reflects a deep-rooted tradition of respect for individual
privacy rights in
[¶164]
For further review and authority, see William J. Mertens and Silas
Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the
Police and Derailing the Law, 70 Geo.L.J. 365 (1981). Likewise disdaining to
follow Leon, there is no good faith exception to the exclusionary rule under the
New Mexico Constitution, following with approval in State v. Greene, 162 Ariz.
383, 783 P.2d 829 (1989); Marsala, 579 A.2d 58; People v. David, 119 Mich. App.
289, 326 N.W.2d 485 (1982); Novembrino, 519 A.2d 820; and Bigelow, 497 N.Y.S.2d
630, 488 N.E.2d 451. Good reason for a better rule is persuasively
provided.
E.
The Roadblock Cases for Another Example
[¶165]
The roadblock cases centered upon Sitz, 496
F.
To Be Followed by Hodari D. and Bostick
[¶166]
Similarly emplaced in search and seizure are the Hodari D. and Bostick
derived cases. Hodari D., ___
[¶167]
In a motor vehicle search case, it was recognized to be "settled law that
the
[¶168]
The bottoming fact for this entire snow-covered prairie of issues
involving the Fourth and Fifth Amendments is the directed federal attack on
philosophical justification for the exclusionary rule. The attack embraces the
principle of useability based on usefulness without regard for method of
acquisition. Christopher Slobogin addressed the topic in, The World Without a
Fourth Amendment, 39 U.C.L.A.L.Rev. 1 (1991). This well-plowed field before the
snow came does include, as illustrative only, William C. Heffernan & Richard
W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of
Police Compliance With the Law, 24 U.Mich.J.L.Ref. 311 (1991); John Apol, The
Fourth Amendment: Historical Perspective, Warrantless Searches and a Solution to
the Exclusionary Rule Debate, 4 Det.C.L.Rev. 1205 (1991); Craig D. Uchida &
Timothy S. Bynum, Search Warrants, Motions to Suppress and "Lost Cases:" The
Effects of the Exclusionary Rule in Seven Jurisdictions, 81 J.Crim.L. &
Criminology 1034 (1991); Yale Kamisar, Does (Did) (Should) The Exclusionary Rule
Rest On A "Principled Basis" Rather Than An "Empirical Proposition"?, 16
Creighton L.Rev. 565 (1983); Peter F. Nardulli, The Societal Cost of the
Exclusionary Rule: An Empirical Assessment, 1983 Am.B.Found.Res.J. 585 (1983);
and Silas Wasserstrom & William J. Mertens, The Exclusionary Rule On The
Scaffold: But Was It A Fair Trial?, 22 Am.Crim. L.Rev. 85 (1984).
G.
Other Constitutional Protections Enforced and Protected by State Constitutions -
Confrontation, Proportionality, Counsel, Bail and Double Jeopardy, for a Few
Examples
[¶169]
Similar concerns involving state constitutional rights to confrontation
have followed the United States Supreme Court decision of Coy v. Iowa, 487 U.S.
1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). See also Beyer, 822 P.2d 519. For
example, regarding the right of confrontation, U.S. Const. amend. VI, see Com.
v. Ludwig, 527
This
Court has recently examined the origins and traced the development of the right
of criminal defendants to meet the witnesses face to face as this right is
guaranteed by Article I, § 13 of the Indiana Constitution. Miller [v. State],
517 N.E.2d 64. Article I, § 13 provides: "In all criminal prosecutions, the
accused shall have the right . . . to meet the witnesses face to face. . . ."
This Court has long recognized that this basic trial right is an ancient one
with roots in the common law and that its design has more than a single part.
Because this right is secured by the Constitution, it cannot be abridged by
judicial or legislative action.
Brady, 575 N.E.2d at 986-87.
[¶170]
Other topics similarly demonstrating extension beyond the criteria now
enforced by the United States Constitution include right to assistance of
counsel, People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612
(1978) (right to assistance of counsel to safeguard substantive and procedural
rights is inviolable and fundamental). Protection is superior to that afforded
by federal constitutional application, including the requirement that a criminal
defendant under indictment and in custody may not waive his right to counsel
unless he does so in the presence of an attorney. The right to bail, including
the protection from unreasonable or arbitrary denial, extends the protection
beyond the federal Bill of Rights. Huihui v. Shimoda, 64 Haw. 527, 644 P.2d 968
(1982). See, in identical circumstance, a fourth
[¶171]
Likewise, see the principle applied in State v. Soriano, 68 Or. App. 642,
684 P.2d 1220, 1222 (1984), where refusal to testify before the grand jury was
considered after the defendant had been granted use and derivative use
immunity:
In
recent years, the Oregon Supreme Court has made it clear that the Oregon
Constitution has a content independent of that of the federal constitution and
that
While many guarantees of the state and federal
constitutions have their roots in the same sources, they are embodied in
different constitutions, with different ultimate interpreters, and may reflect
variations in their values and purposes. They generally appeared first in state
constitutions and were later added to the federal. No court is the primary
interpreter of those guarantees. Under the Fourteenth Amendment, the United
States Supreme Court's construction of the federal version of those guarantees
is both authoritative for the federal system and a constitutional minimum which
states must obey. Its decisions do not, however, decide the meaning of the
Oregon Constitution. In that respect, a United States Supreme Court majority is
no more binding in
[¶172]
In People v. Young, 814 P.2d 834, 842-43 (
We
have recognized and exercised our independent role on a number of occasions and
on several have determined that the Colorado Constitution provides more
protection for our citizens than do similarly or identically worded provisions
of the United States Constitution. See, e.g., People v. Oates, 698 P.2d 811
(Colo. 1985) (rejecting the reasoning of United States v. Karo, 468 U.S. 705,
104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), which construed the United States
Constitution, and holding that warrantless installation of an electronic
tracking device in a drum of chemicals prior to sale violated the purchaser's
right to protection against unreasonable searches under the Colorado
Constitution); People v. Sporleder, 666 P.2d 135 (Colo. 1983) (holding, in
contrast to Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220
(1979), construing the federal constitution, that warrantless installation of a
pen register to record numbers dialed from defendant's home telephone
constituted an unreasonable search under the Colorado Constitution); Charnes v.
DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (rejecting the rationale of United
States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), which
construed the federal constitution, and holding that a bank customer has a
reasonable expectation of privacy in bank records of the customer's financial
transactions for purposes of state constitutional protections against
unreasonable searches); People v. Paulsen, 198 Colo. 458, 601 P.2d 634 (1979)
(rejecting the double jeopardy analysis in United States v. Scott, 437 U.S. 82,
98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), in interpreting the state constitution to
preclude a retrial of the defendant where the trial court erroneously entered
post-jeopardy judgment of acquittal on grounds unrelated to factual guilt or
innocence); Juhan [v. District Court for Jefferson County], 165 Colo. 253, 439
P.2d 741 (rejecting due process analysis in Leland v. Oregon, 343 U.S. 790, 72
S.Ct. 1002, 96 L.Ed. 1302 (1952), which held an Oregon statute requiring an
accused to prove sanity beyond a reasonable doubt to be constitutional under
federal standards, and concluding that a Colorado statute requiring an accused
to prove sanity by a preponderance of evidence violated the due process clause
of the Colorado Constitution). Cf. [People v.] Davis, 794 P.2d [159] at 170-72
(evaluating challenges to the death penalty statute under the Colorado
Constitution by applying Colorado law and using United States Supreme Court
cases only for guidance); * * *. This history reflects our repeated recognition
that the Colorado Constitution, written to address the concerns of our own
citizens and tailored to our unique regional location, is a source of protection
for individual rights that is independent of and supplemental to the protections
provided by the United States Constitution.
Double jeopardy - exigent circumstances - is not found by
smelling burning marijuana cigarettes. State v.
[¶173]
The foregoing cases and analysis are not intended to be either exhaustive
or even illustrative of the character of cases where many of the state's highest
courts have determined that the state constitution should be given first
consideration in protecting individual rights. Estimates vary, but the total
number of cases available today to demonstrate this adaptive principle are
considered to certainly total more than five hundred, generally coming since
1977 after the ground breaking call to action was broadcast by Justice William
J. Brennan, Jr. Illustrative, as taken from a differentiated non-criminal case
involving equal protection, is the defining comment in Hodgeman v. Jard Co., 599
A.2d 1371, 1373 (Vt. 1991). The court held "that the Vermont Constitution is
freestanding and may require [it] to examine more closely distinctions drawn by
state government than would the Fourteenth Amendment." Id. Directed to the same
perception, Chief Justice Randall T. Shepard provided a foreword in Indiana Law,
the Supreme Court, and a New Decade, 24 Ind.L.Rev. 499 (1991). He recognized
that the turning point in the Indiana Supreme Court's jurisdiction during the
period
was
the court's use of the Indiana Constitution to resolve issues that previously
would have been resolved only by reference to the United States Constitution.
State courts across the country increasingly have relied on their own
constitutions for almost two decades, but most commentators did not notice the
movement until 1975 when Justice William Brennan, dissenting from a
[¶174]
A footnote in the law review further considered:
For
a more thorough discussion of the view that Brennan hardly started this movement
but only gave it visibility, see Shepard, State Constitutions: State
Sovereignty, Intergovernmental Perspective, Summer 1989, at 10. See also Falk,
The Supreme Court of California, 1971-1972: Foreword - The State Constitution: A
More Than "Adequate" Nonfederal Ground, Neglect and the Need for a Renaissance,
3 Val.U.L.Rev. 125 (1969); Linde, First Things First: Rediscovering the States'
Bills of Rights, 9 U.Balt.L.Rev. 379, 396 n. 70 (1980) (providing extensive
bibliography).
Shepard, supra, 24 Ind.L.Rev. at 504 n. 25.
[¶175]
Whenever it started, it certainly is here to be a major progression in
American law. Illustrative reviews by a wide range of analysts, legal scholars
and commentators would find general substance in the attribution of state
constitutional application. I note in review, only in part, however: Brennan,
supra, 90 Harv.L.Rev. 489; The Role of a Bill of Rights in a
[¶176]
1 Emerging Issues in State Constitutional Law (1988), including: Warren
E. Burger, Foreword, at ix; Robert Abrams, Introduction, at xi; A.E. Dick
Howard, The Renaissance of State Constitutional Law, at 1; Judith S. Kaye, A
Mid-Point Perspective on Directions in State Constitutional Law, at 17; Ken
Gormley, Ten Adventures in State Constitutional Law, at 29; Richard M. Frank,
The Scorpions' Dance: Judicially Mandated Attorney's Fees - The Legislative
Response and Separation-of-Powers Implications, at 73; William P. French &
John G. Loughrey, Impeachment Power: The Legislature as Moral and Ethical
Watchdog Over the Executive, at 101; Julie F. Pottorff, Political Stew: Item
Veto Issues Bubbling to the Top in State Court Jurisdictions, at 121; Eric B.
Schnurer, It Is a Constitution We Are Expanding: An Essay on Constitutional
Past, Present and Future, at 135; Don Siegelman & Courtney W. Tarver,
Victims' Rights in State Constitutions, at 163; Ralph L. Finlayson, State
Constitutional Prohibitions Against Use of Public Financial Resources in Aid of
Private Enterprises, at 177; Ronald K.L. Collins, Litigating State
Constitutional Issues: The Government's Case, at 201; Robert F. Utter, Ensuring
Principled Development of State Constitutional Law: Responsibilities for
Attorneys and Courts, at 217; and Jeffrey Amestoy & Julie Brill, State
Constitutions from the Attorney General's Perspective: An Institutional
Schizophrenia, at 229.
[¶177]
2 Emerging Issues in State Constitutional Law (1989), including: Harry
Carrico, Foreword, at ix; Tom Miller, Introduction, at xi; Ken Gormley,
Significant Developments in State Constitutional Law, 1988, at 1; Vincent
Bonventre, State Constitutionalism in New York: A Non-Reactive Tradition, at 31;
Janice May, State Constitutional Revision in 1988, at 61; Richard Briffault, The
Item Veto: A Problem in State Separation of Powers, at 85; James C. Harrington,
Reemergence of Texas Constitutional Protection, at 101; Harry F. Tepker, Jr.,
Abortion, Privacy and State Constitutional Law: A Speculation If (Or When) Roe
v. Wade Is Overturned, at 173; Louis F. Hubener, Rights of Privacy in Open
Courts - Do They Exist?, at 189; Michael W. Catalano & Christine Modisher,
State Constitutional Issues in Public Funding Challenges, at 207; Christine M.
Durham, The New Judicial Federalism and the Policy Making Role of State Supreme
Courts, at 219; Earl Maltz, The Political Dynamic of the "New Judicial
Federalism", at 233; Linda Matarese, Other Voices: The Role of Justices Durham,
Kaye and Abrahamson in Shaping the Methodology of the "New Judicial Federalism",
at 239; and David Schuman, Advocacy of State Constitutional Law Cases: A Report
from the Provinces, at 275.
[¶178]
3 Emerging Issues in State Constitutional Law (1990), including: Vincent
L. McKusick, Foreword, at ix; Mary Sue Terry, Introduction, at xiii; Neil C.
McCabe, Criminal Law Developments Under State Constitutions, 1989-90, at 1;
Gerald F. Uelmen, The California Constitution After Proposition 115, at 33;
Jeffrey A. Parness, Respecting State Judicial Articles, at 65; Michael W.
Catalano, The Single Subject Rule: A Check on Anti-Majoritarian Logrolling, at
77; Daniel D. McDevitt, State Action in Pennsylvania: Suggestions for a Unified
Approach, at 87; John A. Saurenman, Keystone, First English, and Nollan Three
Years Later: How Fare the States?, at 115; Harry F. Tepker, Jr., The Trouble
With Pool Halls: Rationality and Equal Protection in Oklahoma Law, at 151;
Steven J. Twist & Mark Edward Hessinger, New Judicial Federalism: Where Law
Ends and Tyranny Begins, at 173; and John M. Devlin, State Constitutional
Autonomy Rights in an Age of Federal Retrenchment: Some Thoughts on the
Interpretation of State Rights Derived from Federal Sources, at 195.
[¶179]
4 Emerging Issues in State Constitutional Law (1991), including: Robert
N.C. Nix, Jr., Foreword, at vii; Ken Eikenberry, Introduction, at xi; Vincent M.
Bonventre, State Constitutional Recession: The New York Court of Appeals
Retrenches, at 1; Barry Latzer, Into the '90s: More Evidence that the Revolution
Has Conservation Underbelly, at 17; Bruce Ledewitz, Judicial Construction of
State Constitutional Provisions Protecting the Environment, at 33; Eric B.
Schnurer, The Sorry Phenomenon of "Legal Constitutional Evasion": The Lesson of
State Constitutional Debt Limits, at 81; Yvonne Kauger, Reflections on
Federalism: State Constitutions' Role as Nurturers of Individual Rights, at 105;
Neil C. McCabe & Cynthia Ann Bell, Ex Post Facto Provisions of State
Constitutions, at 133; Gerald E. Weis, Stepping Into the Breach: State
Constitutional Protection of Expressive Rights in Privately Owned Commercial
Establishments, at 159; Ann C. Michailenko, Pennsylvania's Constitutional
Mandate and the General Assembly's Duty to Provide Public School Students with a
"Thorough and Efficient" Education, at 177; Peter Galie, Modes of Constitutional
Interpretation: The New York Court of Appeals' Search for a Role, at 225; and
Hans A. Linde, Does the "New Federalism" Have a Future?, at 251. See also
Symposium, Emerging Issues in State Constitutional Law, 65 Temp.L.Rev. 1119
(1992).
[¶180]
Many additional literate and philosophical commentaries are available,
which include: Tom Stacy, The Search for the Truth in Constitutional Criminal
Procedure, 91 Colum.L.Rev. 1369 (1991); Yvonne Kauger, William O. Douglas
Lecture. Reflections on Federalism: Protections Afforded by State Constitutions,
27 Gonz. L.Rev. 1 (1991/92); Irene Merker Rosenberg & Yale L. Rosenberg,
Miranda, Minnick, and the Morality of Confessions, 19 Am.J.Crim.L. 1 (1991);
Marcia Coyle, Back to the Future - The Justices Re-Examine the Habeas Corpus
Writ, Nat'l L.J., Feb. 17, 1992, at 1; and Brian J. O'Connell, Note, Search and
Seizure: The Erosion of the Fourth Amendment Under the Terry-Standard, Creating
Suspicion in High Crime Areas - State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d
1271 (1991), cert. denied, 111 S.Ct. 2833 (interim ed. 1991), 16 U.Dayton L.Rev.
717 (1991).
[¶181]
Symposium: Federalism and Parity, 71 B.U.L.Rev. (1991), including: Erwin
Chemerinsky, Ending the Parity Debate, at 593; Michael Wells, Behind the Parity
Debate: The Decline of the Legal Process Tradition in the Law of Federal Courts,
at 609; Akhil Reed Amar, Comment, Parity as a Constitutional Question, at 645;
and Susan N. Herman, Why Parity Matters, at 651.
[¶182]
Section of Individual Rights & Responsibilities, 19 Human Rights (ABA
1992), including: Robin Sher, Choosing the Right Court, at 12; Vicki Quade,
State Courts: The Next Frontier, at 14; Barbara Kritchevsky, What State Courts
Can Do to Protect Privacy, at 16; MaryAnn Dadisman, Gay Activists Seek Rights
State by State, at 18; Sheila Murphy, Diverting Abuse Cases Before They Clog
Courts, at 20; Phylis Skloot Bamberger, The Dark Side of Constitutional Law, at
22; and Shirley Abrahamson, Reawakening to State Courts, at 26.
[¶183]
496 Annals Am.Acad.Pol. & Soc.Sci. (1988), including: John Kincaid,
Preface, at 10; John Kincaid, State Constitutions in the Federal System, at 12;
Donald S. Lutz, The United States Constitution as an Incomplete Text, at 23;
Lawrence M. Friedman, State Constitutions in Historical Perspective, at 33;
Robert F. Williams, Evolving State Legislative and Executive Power in the
Founding Decade, at 43; Stanley Mosk, The Emerging Agenda in State
Constitutional Rights Law, at 54; G. Alan Tarr, Religion Under State
Constitutions, at 65; Peter J. Galie, State Courts and Economic Rights, at 76;
Jennifer Friesen, The Public Employee's Stake in State Constitutional Rights, at
88; Earl M. Maltz, Lockstep Analysis and the Concept of Federalism, at 98;
Michael E. Libonati, Intergovernmental Relations in State Constitutional Law: A
Historical Overview, at 107; Richard Briffault, Localism in State Constitutional
Law, at 117; and Ivo D. Duchacek, State Constitutional Law in Comparative
Perspective, at 128.
[¶184]
See also Daniel R. Gordon, Progressives Retreat: Falling Back From the
Federal Constitution to State Constitutions, 23 Ariz.St.L.J. 801 (1991); Craig
L. Crawford, Comment, Dowling v.
[¶185]
20 Rutgers L.J. (1989), including: Robert F. Williams & Earl M.
Maltz, at 877; Burt Neuborne, Foreword: State Constitutions and the Evolution of
Positive Rights, at 881; Developments in State Constitutional Law: 1988, at 903;
James A. Thomson, Review Essay: State Constitutional Law: Some Comparative
Perspectives, at 1059; and Earl M Maltz, Robert F. Williams & Michael
Araten, Selected Bibliography on State Constitutional Law, 1980-1989, at
1093.
[¶186]
21
[¶187]
See Annual Issue on State Constitutional Law, 22
[¶188]
See also Potter Stewart, The Road to Mapp v.
[¶189]
In addition, see Charles H. Sheldon, "We Feel Constrained to Hold. . . ."
An Inquiry Into the Basis for Decision in the Exercise of State Judicial Review,
27 Gonz. L.Rev. 73 (1991-92); Robert F. Utter, Advancing State Constitutions in
Court. Protecting Individual Rights, 27 Trial 41 (October 1991); Elder Witt,
State Supreme Courts: Tilting the Balance Toward Change, I Governing 30 (August
1988); Vicki Quade, State Courts: The Next Frontier for Civil Liberties, 19
Human Rights 14 (Winter 1992); John Kincaid & Robert F. Williams, The New
Judicial Federalism: The States' Lead in Rights Protection, 65 J. State
Government 50 (April-June 1992); Symposium, "The Law of the Land." The
[¶1.] This extensive, but still
incomplete, listing of legal review and source material, is not abstractly
presented for this dissent. It serves to demonstrate that a mere one sentence
adaptation of "lockstep" in the majority opinion ignores an actual universe of
contrary decisions and academic analyses. In reality, the state of
V.
CONCLUSION
[¶191]
Harm is done in affirming Saldana's conviction within the present
structure of
[¶192]
I dissent.
1The
right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrant
shall issue but upon probable cause, supported by an affidavit, particularly
describing the place to be searched or the person or thing to be
seized.
2
Other analytical techniques exist. See, e.g., Wallace Carson, Last Things Last:
A Methodological Approach to Legal Argument in State Courts, 19 Williamette
L.Rev. 641 (1983); Robert F. Utter and
3
See, e.g., Robert F. Utter, Freedom and Diversity in a Federal System:
Perspectives on State Constitutions and the Washington Declaration of Rights, 7
U.
4
Utter and Pitler, supra note 2, p. 639 n. 31.
5
Linda Matarese, Other Voices: The Role of Justices
6
1 The
court's opinion fails to recognize the status of congressional legislation
involving wire taps and pen registers and the correlative fact that
As a
result, the Electronic Communications Privacy Act of 1986 was enacted to amend
the original wire tap legislation of 1968. 18 U.S.C. § 2510, et seq. (1979). The
stated purpose of the Electronic Communications Privacy Act of 1986 was
to
protect against the unauthorized interception of electronic
communications. The bill amends the 1968 law to update and clarify Federal
privacy protections and standards in light of dramatic changes in new computer
and telecommunications technologies.
When
the Framers of the Constitution acted to guard against the arbitrary use of
Government power to maintain surveillance over citizens, there were limited
methods of intrusion into the "houses, papers, and effects" protected by the
fourth amendment. During the intervening 200 years, development of new methods
of communication and devices for surveillance has expanded dramatically the
opportunity for such intrusions.
The
telephone is the most obvious example. Its widespread use made it
technologically possible to intercept the communications of citizens without
entering homes or other private places. When the issue of Government wiretapping
first came before the Supreme Court in Olmstead v. United States, 277 U.S. 438
[48 S.Ct. 564, 72 L.Ed. 944] (1928), the Court held that wiretapping did not
violate the fourth amendment, since there was no searching, no seizure of
anything tangible, and no physical trespass.
Today, the Olmstead case is often remembered more for
Justice Brandeis' prescient dissent than for its holding. Justice Brandeis
predicted:
"Ways may some day be developed by which the Government,
without removing papers from secret drawers, can reproduce them in court, and by
which it will be enabled to expose to a jury the most intimate occurrences of
the home . . . Can it be that the Constitution affords no protection against
such invasions of individual security?"
Forty years later, the Supreme Court accepted Justice
Brandeis' logic in Katz v.
5
U.S.Code Congressional and Administrative News 3555-56 (1986).
The
Electronic Communications Privacy Act of 1986, P.L. 99-508, 100 Stat. 1848,
provided significant changes in federal law, including explicit removal of pen
register legislation from 18 U.S.C. § 2510, et seq. (1979), and the creation of
a new regulatory code for pen registers, 18 U.S.C. § 3121 through 3127 (1992),
entitled Pen Registers and Trap and Trace Devices. John Applegate & Amy
Grossman, Pen Registers After Smith v.
In
result, Smith was explicitly superseded by the regulatory authority of the new
enactment. The terminology of the pre-1986 federal law included in the
definition of "contents": "information concerning the identity of the parties
[participating in the] communication." 18 U.S.C. § 2510(8) (1979). This
identical language was contained in Wyo. Stat. § 7-3-601(a)(ii) and (iii)
(1985). The federal Electronics Communications Privacy Act of 1986 deleted this
law to make it clear that pen register information was not regulated by the wire
tap statute, see 18 U.S.C. § 2510(8) (1992), and clearly identified transfer to
the new register statute responsibilities and control of this medium of
intervention in personal privacy by governmental authorities. See Senate Report
99-541, 5 U.S.Code Congressional and Administrative News, at 3567:
Subsection 101(a)(5) of the Electronic Communications
Privacy Act amends current section 2510(8) of title 18 to exclude from the
definition of the term "contents," the identity of the parties or the existence
of the communication. It thus distinguishes between the substance, purport or
meaning of the communication and the existence of the communication or
transactional records about it.
The
importance of the legislative history is that the Wyoming legislature, even
though the communication privacy legislation was addressed twice in amendment:
1987 Wyo. Sess. Laws ch. 157, criminal code recodification; and 1989 Wyo. Sess.
Laws ch. 118, specific amendments; did not remove identification information
from the statute as had the United States Congress or pass pen register
legislation as invited by the federal code. That law, the Electronics
Communications Privacy Act of 1986, effective ninety days after
Consequently, on or about
It
must be concluded: (a) Smith was superseded by subsequent federal legislation;
(b) "contents" under Wyo. Stat. § 7-3-601, in the clear meaning of the term
itself, includes pen register identification information; (c) Wyoming has not
accepted the invitation to enact pen register authenticating legislation; (d)
warrantless acquisition and subsequent disclosure of the information from pen
registers is illegal in this state and constitutes a felony offense under Wyo.
Stat. § 7-3-602(c), except to the extent that federal authorities use federal
processes for federal purposes; and (e) admission in evidence for criminal
prosecution cannot be justified.
2 I
do not suggest that it was impossible for the state drug agent to have legally,
and perhaps even simplistically, obtained the desired information in compliance
with the state constitution. The fact is he chose the shortcut in disregard of
the Wyoming Constitution and statutes. Now this court is called upon to justify
the violation by affirming the case in result and to also limit the Wyoming
Constitution. Consequently, rights of Wyoming citizens under the Wyoming
Constitution are not only limited by the constitutional interpretations of the
United States Constitution by the United States Supreme Court, but also federal
statutes and federal criminal investigative activities define the authority of
the Wyoming legislature to respond to the Wyoming constitutional Bill of Rights.
Not only the constitution of this state, but also the legislative responsibility
for exercise of the police power are superseded and subverted by that conduct
and this decision.
It
is fair to suggest that the
3 The
4 In
part, that enactment presently provides:
§
3121. General prohibition on pen register and trap and trace device use;
exception (a) In general.
Except as provided in this section, no person may install or use a pen register
or a trap and trace device without first obtaining a court order under section
3123 of this title or under the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. § 1801 et seq.).
(b)
Exception. The
prohibition of subsection (a) does not apply with respect to the use of a pen
register or a trap and trace device by a provider of electronic or wire
communication service -
(1)
relating to the operation, maintenance, and testing of a wire or electronic
communication service or to the protection of the rights or property of such
provider, or to the protection of users of that service from abuse of service or
unlawful use of service; or
(2)
to record the fact that a wire or electronic communication was initiated or
completed in order to protect such provider, another provider furnishing service
toward the completion of the wire communication, or a user of that service, from
fraudulent, unlawful or abusive use of service; or
(3)
where the consent of the user of that service has been obtained.
(c)
Penalty. Whoever knowingly violates subsection (a) shall be fined
under this title or imprisoned not more than one year, or both.
18
U.S.C. § 3121 (1992).
The
law provided a state two-year window for similar enactments. See Act
(b)
Special rule for State authorizations of interceptions. Any pen register or trap
and trace device order or installation which would be valid and lawful without
regard to the amendments made by this title [adding 18 U.S.C. § 1367 and 3121 et
seq.] shall be valid and lawful notwithstanding such amendments if such order or
installation occurs during the period beginning on the date such amendments take
effect and ending on the earlier of -
(1)
the day before the date of the taking effect of changes in State law required in
order to make orders or installations under Federal law as amended by this title
[adding 18 U.S.C. § 1367 and 3121 et seq.]; or (2) the date two years after the
date of the enactment of this Act.
The
federal legislation provided a procedure to obtain an order for installation in
18 U.S.C. § 3122, comprehensive provisions relating to issuance in § 3123, a
methodology in § 3124, and, finally, an exception provision in §
3125.
5 The
question presented does not address mere jurisdictional state court questions
where acquisition results in the non-forum state and was legally obtained in
accord with the laws of the place where acquired. See People v. Blair, 25 Cal.3d
640, 159 Cal.Rptr. 818, 602 P.2d 738 (1979) and Com. v. Bennett, 245
6
With presentence confinement credit of 333 days and a sentence of two and
one-half years to seven years, Saldana was released from penitentiary
confinement months ago. I write in this case for the future of individual rights
for citizens of this state from governmental dominance and destruction of
individualism.
7
This basis of thinking is self-evident since the United States Supreme Court
decisions using the Fourteenth Amendment for state law incorporation came a
number of decades later. Selective incorporation of the protection of the
federal constitution's Bill of Rights into the Fourteenth Amendment's
restrictions on state action began with the famous footnote four in United
States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4,
82 L.Ed. 1234 (1938). See Laurence H. Tribe, American Constitutional Law, § 11-2
(2d ed. 1988). The court suggested that "[t]here may be narrower scope for
operation of the presumption of constitutionality when legislation appears on
its face to be within a specific prohibition of the Constitution, such as those
of the first ten Amendments, which are deemed equally specific when held to be
embraced within the Fourteenth." Carolene Products Co., 304
Incorporation was quickly applied to the First Amendment
freedoms of: speech, Fiske v.
8
W.R.Cr.P. 46.1 was then rewritten by the rules committee following the
publication of Simms. The proposed change was adopted by this court on
9 I
acknowledge what is said in special concurrence, but suggest that the litigants
did not fail to address the state constitutional issue. This court provides an
answer in the majority decision to a question that was never asked nor analyzed
by the litigants. Rejection or acceptance of the independent state
constitutional basis for decision is first considered in this present
opinion.
10
Timothy Stallcup followed in thesis and text the statement of Justice William
Brennan in recognizing:
"[T]here exists in modern
Stallcup, supra, 24 Ariz.St.L.J. at 695 n. 57 (quoting
Brennan, supra 90 Harv.L.Rev. at 495). See also Charles G. Douglas, III, The
Clash Over Constitutions; The Reassertion of State Authority, Judges J., Summer
1987, at 39.
The
significance of this issue to Justice William J. Brennan, Jr. is shown by a 1990
interview where he analyzed: "[T]he emphasis on the individual rights and their
protection * * * has been the principal contribution to jurisprudence that the
Court has made in my time, including things like supporting the extension of
protections to state decisions that rely on state constitutions rather than on
the federal Constitution." David O. Stewart, A Life on the Court, 77
11 It
is noteworthy in advancing legal thought that four of the most vocal supporters
of state constitutional rights decision making are female justices of state
supreme courts: Judith S. Kaye, Judge, New York Court of Appeals; Christine
Durham, Justice Utah Supreme Court; Shirley Abrahamson, Justice, Wisconsin
Supreme Court; and Yvonne Kauger, Justice, Oklahoma Supreme Court. See
Abrahamson, supra, 18
12 See
Thomas Y. Davies, Denying a Right by Disregarding Doctrine: How
13 It
is most interesting to observe that the Michigan Supreme Court refused to follow
the United States Supreme Court's reconceptualization of