'It's alive!'... But what is it?

One of the "happy incidents of [our] federal system" of government is the right and power of the states to serve as "laboratories for experimentation." New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1982) (Brandeis, J., dissenting); Hall v. Florida, 134 S. Ct. 1986, 2001 (2014).

California has not let this power go unused. As explained below, the California courts and the voters have together given life to the California Constitution in a way that has spawned a few consequences that no one expected.

We can get a good glimpse of this creature from the unfolding controversy over the constitutionality of statutes authorizing law enforcement to collect DNA samples from persons merely arrested for crimes. Maryland v. King, 113 S. Ct. 1958 (2013), upheld Maryland's DNA collection statute. Two California Court of Appeal decisions - People v. Buza, 231 Cal. App. 4th 1446 (2014), review granted, S223698, and People v. Lowe, 221 Cal. App. 4th 1276 (2013) - have considered the constitutionality of California's slightly broader statute.

They have taken very different approaches to the issue, as illustrated by the following hypotheticals.

Hypo No. 1: A person is arrested and asked to give a DNA sample by swabbing the inside of his cheek. He refuses, and is prosecuted for the crime of refusing to give a DNA sample. He is convicted. On appeal, he challenges the constitutionality of the law requiring him to give a DNA sample in the first place.

Hypo No. 2: A person is arrested and asked to give a DNA sample, but he cooperates with police and does so. His sample is uploaded to the national DNA database, matches a DNA profile from an unsolved burglary-rape case and he is prosecuted and convicted for those crimes. On appeal, he challenges the trial court's denial of his motion to suppress the DNA match on the ground the collection was unconstitutional in the first place.

The first hypo is Buza. On these facts, Buza did not analyze whether California's DNA collection statute was constitutional under the Fourth Amendment of the federal Constitution (the "federal Fourth Amendment"). Instead, Buza held that the statute violated California's constitutional provision against unreasonable searches and seizures in Article I, section 13 (the "state Fourth Amendment").

Here is the unusual part: The Court of Appeal in the second hypo - which is Lowe - could not have suppressed the DNA match if it relied upon the same reasoning as Buza under the state Fourth Amendment. (Instead, Lowe held that California's DNA collection statute was valid under the federal Fourth Amendment.) In fact, if Buza had cooperated with the police by giving a DNA sample, Buza could not have used its own reasoning.

What is going on?

As an independent sovereign within our federal system, California is governed by its own constitution. That constitution is a "document of independent force," People v. Brisendine, 13 Cal. 3d 528, 549-50 (1975), containing many provisions that parallel those in the federal Constitution but need not be interpreted in exactly the same way. American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 327-28 (1997); Raven v. Deukmejian, 52 Cal. 3d 336, 353 (1990).

California has put on its proverbial lab coat and experimented with both the substantive scope of the state Fourth Amendment and the remedies available to enforce it. As noted above, there have really been two factions of "scientists" at work.

The courts have interpreted the state Fourth Amendment to be "more exacting" and defendant-friendly in its substantive protections. Brisendine, 13 Cal. 3d at 545. For many years, these courts gave teeth to these greater protections by applying an exclusionary rule that required suppression of any evidence that was obtained in violation of those broader protections. In re Lance W., 37 Cal. 3d 873, 879 (1985).

The voters felt this went too far, and in 1982, passed Proposition 8. This Proposition 8 amended the California Constitution to add language now found in Article I, section 28(f)(2). That language prevents a court from suppressing evidence unless its acquisition violates the federal Fourth Amendment; the remedy of suppression is no longer to be available for violations of the state Fourth Amendment alone. In re Lance W., 37 Cal. 3d at 879, 886-87. Voters tried to shut down the lab completely in 1990 by passing Proposition 115, which would have required all state courts to read the protections of the state Constitution's criminal defense guarantees no more broadly than the U.S. Supreme Court reads the parallel provisions in the federal Constitution. However, the California Supreme Court ruled that such a transfer of "all judicial interpretive power" of the state courts to the U.S. Supreme Court required a "revision" of the California Constitution, not just a voter initiative. Raven, 52 Cal. 3d at 341, 349, 352, 354.

The end result is a state Fourth Amendment that splices together a substantive scope defined by state law and a suppression remedy defined by federal law.

This unusual creature has spawned two unusual - and, by all indications, unintended - consequences.

The first is illustrated by the seeming anomaly discussed above. Buza is able to rely on the state Fourth Amendment only because Buza refused to cooperate with the police. Had he, like Lowe, given a sample and later sought to suppress its use (or derivative use) as evidence, he would have been out of luck because suppression is unavailable as long as California's DNA collection statute, like Maryland's, does not violate the federal Fourth Amendment. Cf. Buza, 231 Cal. App. 4th at 1485-86 (observing that case "has nothing to do with the exclusionary rule").

But what message is this sending? "The way to best preserve your rights is not to cooperate with the police." And this message seems to apply even when non-cooperation is a crime, which it usually is. See Penal Code sections 69 (resisting arrest), 148(a) (same), 298.1(a) (refusing to give DNA sample).

The second consequence is prosecutorial forum shopping. As long as Smith v. Maryland, 442 U.S. 735 (1979), remains good law, the federal Fourth Amendment does not place any restrictions on law enforcement's ability to obtain customer records held by third parties. With regard to Internet providers (including companies providing Internet access over smart phones), Congress has enacted the Electronic Communications Privacy Act (ECPA), 18 U.S.C. Sections 2701 et seq. Among other things, ECPA requires law enforcement to obtain subscriber records by subpoena (rather than just by asking the company for them). 18 U.S.C. Section 2703(c)(2), (c)(3). With regard to real-time monitoring of the phone numbers dialed out and coming in on a phone (known as pen registers and trap-and-trace devices, respectively), law enforcement need only certify to a court that the information is "relevant to an ongoing investigation"; no further judicial inquiry is allowed. 18 U.S.C. Sections 3121(a), 3123(a).

By contrast, the state's Fourth Amendment requires a warrant supported by probable cause for either. See People v. Chapman, 36 Cal. 3d 98, 105-11 (1984) (subscriber records); People v. Blair, 25 Cal. 3d 640, 655 (1979) (same); People v. Larkin, 194 Cal. App. 3d 650, 654 (1987) (pen register/trap-and-trace orders); Cal. Atty. Gen. Op. No. 03-406 (2004) (same); Cal. Atty. Gen. Op. No. 85-601 (1986).

This means that state judges cannot suppress phone data obtained with a pen register or trap-and-trace order or subscriber information obtained with a subpoena because there is no federal Fourth Amendment violation, People v. Lissauer, 169 Cal. App. 3d 413, 419 (1985), but those same judges must nevertheless deny any requests for a pen register/trap-and-trace order or subpoena presented to them because, as state officers, they are required to follow state law, see Larkin, 194 Cal. App. 3d at 654 - which in this case requires a warrant supported by probable cause.

This gives state prosecutors an incentive to walk across the street to federal court to obtain such orders or subpoenas, at least in cases where probable cause might be lacking.

With the California Supreme Court's grants of review in Buza and Lowe, the justices may have the opportunity to look more directly at this unusual creature we have animated. It will be interesting to see whether they choose to take a closer look, and if they do, where they decide to take the experiment next.