Searches, seizures and independent state grounds

MOSKOVITZ ON APPEALS

Note: David Kaiser, a former staff attorney for the California Supreme Court, is a member of Moskovitz Appellate Team. David has done a lot of work with the California Constitution.

When the U.S. Supreme Court holds that a certain police search tactic does not violate the U.S. Constitution's Fourth Amendment proscription against "unreasonable searches and seizures," the California Supreme Court could hold that the same tactic nonetheless violates the California Constitution's identically worded but independent proscription in Article I, section 13. This is based on the doctrine of "California Constitutionalism" -- also referred to as "independent state grounds" -- which holds that the California Constitution provides additional protection of individual rights, above and beyond that provided by the federal constitution.

In the 1970s and 80s, the California Supreme Court based several search and seizure decisions on independent state grounds. But, in 1982, the California electorate enacted an amendment to the California Constitution holding that the remedy for violations of California's search and seizure provision -- exclusion of the resulting evidence from the criminal trial -- could not go beyond the rulings of the U.S. Supreme Court interpreting the Fourth Amendment. Because the usual remedy -- exclusion of the evidence -- could not be employed, this effectively prevented the California Supreme Court from using the California Constitution to provide additional protections against violations of search and seizure rights.

So what remains of California's supposedly "independent" search and seizure provision? A recent California Supreme Court decision, People v. Buza, 230 Cal. Rptr. 3d 681 (2018), revisits this question.

Buza considered the constitutionality of a California statute (Pen. Code, Section 296.1, subd. (a)(1)(A)) that makes it a crime for felony arrestees to refuse to furnish DNA samples. In a sharply divided 4-3 decision, the Supreme Court upheld the constitutionality of the statute, under both the federal and state constitutions. The Buza decision was eagerly awaited not only by attorneys interested in search and seizure and privacy law, but by those interested in the fate of California Constitutionalism.

California Constitutionalism emerged as a result of the end of the Warren Court years (which lasted from 1953 to 1969), and the subsequent conservative turn in U.S. Supreme Court jurisprudence in the Burger and Rehnquist courts. Proponents of the Warren Court's more liberal views of criminal procedural rights, such as U.S. Supreme Court Justice William Brennan, called on state courts to retain the expansive direction of Warren Court jurisprudence by basing their rulings on their state constitutions. The California Supreme Court heeded Brennan's call, and during the 1970s and 80s developed criminal procedural law that was more protective of criminal defendant's rights than what was required by federal constitutional decisions. (For more on this, see David A. Kaiser and David A Carrillo, "California Constitutional Law, Reanimating Criminal Procedural Rights After The 'Other' Proposition 8," 56 Santa Clara L. Rev. 33-78, 2016.)

This, however, ultimately ran afoul of a shift in California voter sentiment -- towards tough-on-crime provisions, such as Proposition 8 in 1982. Proposition 8 included a "Truth-in-Evidence" provision, which states that "relevant evidence shall not be excluded in any criminal proceeding." Cal. Const., Art. I, Sec. 28(f)(2). Because the exclusionary rule is the key vehicle for enforcing search and seizure restrictions, this effectively limited the protections of search and seizure rights under the California Constitution to no more than what is required by the federal constitution. In re Lance W., 37 Cal.3d 873 (1985).

So things stood until People v. Buza. Buza appealed his conviction for refusing to provide a DNA sample, citing only federal constitutional grounds (the Fourth Amendment). Note that Buza was not trying to exclude evidence. He simply argued that the statute that criminalized his refusal to provide DNA was unconstitutional.

The Court of Appeal found in his favor, citing federal grounds. But while the case was pending review in the California Supreme Court, the U.S. Supreme Court issued its ruling in Maryland v. King, 569 U.S. 435 (2013), which addressed a similar DNA collection statute in Maryland. The U.S. high court concluded that the Maryland statute was constitutional under the federal Fourth Amendment.

Because of King, the California Supreme Court remanded Buza to the Court of Appeal to decide again, in light of the King decision. The Court of Appeal again reversed, this time on the ground that the DNA collection act violated the California Constitution's prohibition on unreasonable searches and seizures under Article I, section 13. Because Buza was not trying to exclude evidence, his argument was not precluded by the Truth-in-Evidence provision.

The California Supreme Court's analysis in Buza turned on two main issues: (1) how similar was the Maryland DNA collection scheme (upheld under King) to the California DNA collection scheme? and (2) if the two DNA collection schemes are substantially similar, should the California Constitution nonetheless afford more protection for individual privacy than the federal Constitution?

The majority opinion in Buza held that the Maryland and California DNA collection schemes were substantially similar. The court then held that the requirements of the California DNA collection scheme were valid under both the state and federal constitutions. The Buza majority thus declined to apply a stricter privacy standard under the California Constitution.

Did the majority opinion get it "right" in declining a significant opportunity to assert the independence of the California Constitution by applying more expansive privacy protections than are required by the federal constitution? The Buza majority was satisfied with the reasoning of King and saw no reason to go beyond it. The Buza majority put off for another day some of the more controversial privacy issues raised by the case, such as whether the California DNA collection scheme was unconstitutional because it allowed DNA collection from persons who were arrested but for whom probable cause for the arrest had not yet been established by a magistrate. The majority declined to reach this issue because, for Buza, not only was probable cause found for his arrest, he was ultimately convicted of the crime for which he had been arrested.

In his dissent, Justice Mariano-Florentino Cuéllar argued that, because the California Supreme Court had issued many expansive rulings protecting an individual's right against unreasonable searches and seizures during the heyday of California Constitutionalism, a general precedent exists for providing additional protections in this area under the California Constitution.

However, even if Cuéllar's position were accepted and the California Supreme Court had recognized more protections under the California Constitution for Buza, this would have resurrected California Constitutionalism only a smidgen. The great bulk of search and seizure issues arise via a motion to suppress evidence. The Truth-in-Evidence provision has lock-stepped the scope of the exclusionary rule to the federal constitution. Only rarely does a defendant like Buza come along, who is not seeking the exclude any evidence, but is directly challenging, on search and seizure grounds, the criminal statute he was convicted of violating.

The bottom line is that California Constitutionalism in the area of search and seizure is pretty much dead -- unless and until the electorate changes its mind with another ballot proposition.