State v. DeWitt

MARTONE, Justice,

dissenting.

This is a close case under the Fourth Amendment to the United States Constitution. This is not a case in which an argument under the Arizona Constitution was properly preserved. Yet, the majority’s opinion is crafted as though it were, in an effort, I believe, to immunize this close question from federal judicial review. In my opinion, there is no adequate and independent state ground for the decision. This case affords us no opportunity to reach the state constitutional question, and we should not, because as this court has said, “one of the few things worse than a single exclusionary rule is two different exclusionary rules.” State v. Bolt, 142 Ariz. 260, 268 , 689 P.2d 519, 527 (1984).

I. The State Constitutional Issue Was Not Properly Preserved

Contrary to the majority’s statement of the issue, we granted review on issue B only, which was: “[w]as the Court of Appeals wrong in holding that the additional warrant-less entries and confirmatory searches of Appellant’s home were newly justified upon dis *472 covery of materials whose evidentiary value was not immediately apparent?” Petition for review at 2. We did not grant review on issue A, which specifically referred to both “the Fourth Amendment to the Constitution of the United States and the Arizona Constitution Article 2, Section 8.” Id.

That part of the memorandum in support of the defendant’s motion to suppress that related to issue B did not rely upon Article 2, § 8. As with many such motions, no effort was made to distinguish between the Fourth Amendment, the state constitution, and cases decided under the Fourth Amendment and the state constitution. In denying the motion to suppress, the trial judge did not rely on the state constitution, minute order of Nov. 7, 1991, and in denying the motion for reconsideration, he relied specifically on federal constitutional law. Minute Order of Dec. 20,1991.

The defendant’s opening brief in the court of appeals made no express mention of Article 2, § 8 of the Arizona Constitution anywhere, let alone in that portion of the brief that related to the issue upon which review was granted. The brief treated our cases, those in the United States Supreme Court, and cases in the California Supreme Court as though they were interchangeable.

Taking his que from the dissenting opinion in the court of appeals, the defendant referred to that dissent in the portion of his petition for review that related to the issue upon which review was granted, but, as in the courts below, mounted no argument based upon the Arizona Constitution. As is so often the case, this ease was argued generically, with generous references to the opinions of the United States Supreme Court and some opinions of this court, as though all search and seizure issues were fungible.

We have said before that where “[t]he defendant makes no separate argument based on the state constitutional provision ... we do not separately discuss it.” State v. Nunez, 167 Ariz. 272 , 274 n. 2, 806 P.2d 861 , 863 n. 2 (1991). And we have said before that where a defendant relies solely on the federal constitution in his argument to the court of appeals, we would not separately discuss the state constitution. Taylor v. Sherrill, 169 Ariz. 335, 338 , 819 P.2d 921, 924 (1991).

In my view, on this record, a state constitutional basis for the issue upon which review was granted was never properly raised or preserved. Let me turn then to why it matters.

II. The Fourth Amendment and the State Constitution

One could reasonably conclude, as the court of appeals did here, that the so called confirmatory search in this case was reasonable. After all, the initial warrantless entry was, as the majority acknowledges, justified by exigent circumstances, and one could reasonably argue that the confirmatory search added no constitutionally recognizable quantum of further intrusion into the defendant’s privacy. Thus, if reasonableness alone were the test under the Fourth Amendment, then, as argued by Justice Scalia in California v. Acevedo, 500 U.S. 565, 581-85 , 111 S.Ct. 1982, 1992-94 , 114 L.Ed.2d 619 (1991) (Scalia, J., concurring), there would simply be no Fourth Amendment violation here. That his view did not prevail suggests that under the Fourth Amendment a warrant is required in certain cases even where a search is otherwise reasonable. 1 Yet, Fourth Amendment law is fluid. See, e.g., Soldal v. Cook County, 506 U.S. 56, 71 , 113 S.Ct. 538, 549 , 121 L.Ed.2d 450 (1992) (“ ‘reasonableness is still the ultimate standard’ under the Fourth Amendment”). See also, United States v. Santiago, 846 F.Supp. 1486, 1489-90 (D.Wyo. 1994) (“Although Justice Scalia’s concurrence in Acevedo was not joined by any other Justices, the Court’s most recent cases interpreting the Fourth Amendment have started down Justice Scalia’s path.”).

Unlike the Fourth Amendment, Article 2, § 8 of the Arizona Constitution has no warrant clause. It would thus be anomalous to *473 have a reasonableness test, and not a per se warrant requirement, under the Fourth Amendment, yet require a warrant under the Arizona Constitution. That is why it is important for us to decide this case under the Fourth Amendment. Our goal is “to keep the Arizona exclusionary rule uniform with the federal.” State v. Bolt, 142 Ariz. 260, 269 , 689 P.2d 519, 528 (1984). As this court has said, “[i]t is poor judicial policy for rules governing the suppression of evidence to differ depending upon whether the defendant is arrested by federal or state officers.” Id.

By deciding this case as though it were predominately one under the state constitution, the majority seeks to immunize its decision from federal judicial review. 2 But this is a close case. If we are wrong about it, we should want the Supreme Court to have an opportunity to review it because we would not want a state rule to be more restrictive than the federal rule in this area for all the reasons this court stated so ably in State v. Bolt, 142 Ariz. at 268-69 , 689 P.2d at 527-28 . If it is still true that we do not want to exclude more evidence under the Arizona Constitution than we have to under the Fourth Amendment, then it is “poor judicial policy,” id. at 269 , 689 P.2d at 528 , to decide a state constitutional issue that is not properly preserved.

III. Conclusion

There are countless ways in which state rules of decision ought to diverge from their federal counterparts. A healthy respect for federalism counsels against lock-step uniformity. But the exclusionary rule was imposed upon the states through the Fourteenth Amendment incorporation process. It is thus not within that range of state interests in which we would want to go beyond the requirements of federal law. We should decide this case solely under the Fourth Amendment. If we are right about its resolution, we shall be consistent with federal law. But if we are wrong about its resolution under federal law, and decide the state issue, we run the risk of excluding more evidence than is required with no countervailing attendant benefit. I thus respectfully dissent.

. The majority here, however, treats this case as though it raises only a state constitutional issue. It fails to analyze this case under the Fourth Amendment, and thus affords me no basis to concur in its perfunctory resolution of the federal issue. See ante, at 70, n. 5, 910 P.2d at 15, n. 5.

. The existence of an adequate and independent state ground for a decision will prevent the United States Supreme Court from reviewing a state court’s resolution of a federal issue. See generally, Robert L. Stern et al., Supreme Court Practice §§ 3.21-3.24, at 140-58 (7th ed. 1993). But as Justice O’Connor noted, ”[i]f a state court holds that a particular state action violates state law because it violates a parallel provision of federal law, then the Supreme Court has power to review the case.” Sandra Day O'Connor, Our Judicial Federalism, 35 Case W.Res.L.Rev. 1, 6 (1984) (citing Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 , 97 S.Ct. 2849 , 53 L.Ed.2d 965 (1977); United Air Lines v. Mahin, 410 U.S. 623 , 93 S.Ct. 1186 , 35 L.Ed.2d 545 (1973)). This court has stated that it is its policy to "keep the Arizona exlusionaiy rule uniform with the federal. We therefore do not propose to make a separate exclusionary rule analysis as a matter of state law in each search and seizure case.” State v. Bolt, 142 Ariz. 260, 269 , 689 P.2d 519, 528 (1984). To be sure, we said this in connection with the exclusionary rule and not the substantive right it purports to enforce, but the result is the same. At a minimum, it is unclear whether there is an independent state ground here, and therefore our resolution of the federal issue ought to be reviewable. See Michigan v. Long, 463 U.S. 1032, 1040-41 , 103 S.Ct. 3469, 3476 , 77 L.Ed.2d 1201 (1983).