Towards an Independent State Constitutional Jurisprudence, or, How to Disagree with the Supreme Court and How Not to

In this brief article, Professor Adelman traces the evolution of the state constitutional jurisprudence of the Arkansas Supreme Court in its search and seizure decisions, from one in which no analysis independent of United States Supreme Court Fourth Amendment takes place, to one in which the Arkansas Supreme Court may determine for itself what is or is not an unreasonable search or seizure under the cognate state constitutional provision, Article 2, § 15 of the Arkansas Constitution. In Arkansas v. Sullivan, 532 U.S. 769 (2001), the U.S. Supreme Court summarily, per curiam, reversed a decision of the Arkansas Supreme Court which had attempted to read the Fourth Amendment more expansively (i.e., so as to provide greater protection against unreasonable search and seizure), than had recent Supreme Court precedent. The author notes that the state court could have avoided reversal rather easily by simply resting its holding expressly on the cognate state constitutional search and seizure provision, rather than on the Fourth Amendment.In this article and also in a follow-up article, Towards an independent state constitutional jurisprudence II: Arkansas Supreme Court rules state constitution requires warning prior to “Knock and Talk” searches, 2004 ARLN 3, the author notes that in search and seizure decisions after Sullivan, most notably State v. Brown, 156 S.W. 3d 722 (2004), the Arkansas Supreme Court has quickly learned and applied the lesson of Sullivan, and has embraced, under the banner of “Judicial Federalism,” its own state constitutional prerogative to “carve out its own path and speak in its own voice.”