The opinion
WALKER Chief Justice,
concurring.
I also concur with the opinion of Justice Jack Brookshire.
Justice Burgess, in his concurrence, correctly addresses the problem generated by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991) by saying, “we have no such interpretation (from the Court of Criminal Appeals) as of yet.” (parenthetical portion mine).
It is not my intent to be critical of the Heitman opinion for it is indeed a scholarly effort in explaining why state courts are not bound by that lower limit set by the United States Constitution. However, Presiding Judge McCormick, in his one paragraph dissent, nails the problem left open in Heitman by suggesting that the majority provides no formula for guidance. Heitman, supra at 691 .
By adopting the doctrine of “independent state grounds,” without directions, the fourteen courts of appeal have been parachuted into the Okefenokee Swamp, at night, without a compass.
My true concern comes from the Heit-man language stating:
State courts have thus been considered “laboratories” of constitutional law. State courts have the opportunity to experiment with constitutional rights and lay potential guidelines for future constitutional decisions of not only state courts but the Supreme Court as well.
Heitman, supra at 686 .
Query: If the U.S. Constitution, through and guaranteed by the Fourth and Fourteenth Amendments, sets the lower limit or bottom line protection against unreasonable searches and seizures, pray tell why any state court would choose to further restrict law enforcement by establishing yet a more liberal interpretation through our State Constitution. The question deserves a more credible answer than, “Well, we just do it because we are ‘laboratories’ of constitutional law and therefore, we can.”
It is humbly suggested that should such needed guidelines be established, that consideration be given to requiring each court, when faced with the question of, “Should we rise above those protective shields guaranteed by, through and under the United States Constitution,” to give clear and ar-ticulable reasons as to why, under the particular ease at issue, a more expansive protection of individual rights is appropriate.
I respectfully offer this concurrence.