Expanded Rights through State Law: The United States Supreme Court Shows State Courts the Way

I. INTRODUCTION Three important cases decided during 2002 show the Arkansas Supreme Court embracing the new judicial federalism with a commitment and panache not previously seen in Arkansas jurisprudence. In one four-month stretch, the court used the search-and-seizure provision of the Arkansas constitution as the basis for affirming the suppression of items seized during an illegal night-time search, (1) affirmed the constitutional invalidity of a pretextual arrest and the suppression of the drugs obtained incident to it, (2) and struck down the state's criminal sodomy statute on grounds that it violated both the due process and equal protection clauses of the Arkansas constitution. (3) Two primary factors led to this annus mirabilis in Arkansas. The first, without question, was the United States Supreme Court's express admonition in Arkansas v. Sullivan (4) that if the Arkansas Supreme Court was to expand individual rights for its citizens, it must do so under its own state law and not by means of a broader interpretation of the United States Constitution. Reversing the alternative holding in Sullivan, the Court said: The Arkansas Supreme Court's alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court's own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 121.5 (1975). There, we observed that the Oregon Supreme Court's statement that it could "interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court" was "not the law and surely must be inadvertent error." Id. at 719, n. 4. We reiterated in Hass that while "a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards," it "may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." (5) Once the Court had spoken, the Arkansas defense bar took heed, and where in the past the Arkansas constitution had been given short shrift as the source of a remedy for governmental infringement of individual rights, now it became a very real resource for constitutional advocacy. The second factor behind this notable shift to the new judicial federalism was Arkansas's own common law, which in a few distinct areas had already expanded individual rights beyond federal protections. For example, heightened requirements for night-time searches and a skepticism toward pretextual arrests have deep roots in Arkansas law. (6) With the Supreme Court's direction in Arkansas v. Sullivan and the state's tradition of protecting individual rights in certain narrowly defined areas behind it, the Arkansas Supreme Court was primed and ready to expand individual rights on the basis of its own state constitution. After providing some background about the new judicial federalism, the balance of this article will use an analysis of Griffin, Sullivan, and Jegley to show how the Arkansas Supreme Court, has, at the urging of the United States Supreme Court, begun to apply that strain of jurisprudence to the cases before it. II. THE NEW JUDICIAL FEDERALISM A. Origins The new judicial federalism came into vogue in the 1970s, with Justice William J. Brennan sounding the clarion call. (7) A primary focal point of this new federalism has been state courts' reliance on state constitutions to provide rights no longer available under the Supreme Court's increasingly restrictive interpretation of the United States Constitution. (8) Many states began in the 1980s and 1990s to afford additional protections to their citizens, (9) and it is beyond dispute today that state supreme courts have the authority to apply their own state law, even if it diverges from federal precedent. …