New York State Constitutional Law - Today Unquestionably Accepted and Applied as a Vital and Essential Part of New York Jurisprudence

In 1993, when my article The State Constitution, A Criminal Lawyer's First Line of Defense* 1 was published, reliance on New York State constitutional law to protect individual rights not adequately protected by the United States Supreme Court was still a recently emerging doctrine. (2) As pointed out in First Line of Defense, state constitutionalism of the so-called new judicial federalism (3) was given its most widespread recognition and acceptance as a result of a seminal article by Supreme Court Justice William Brennan. (4) * This renewed reliance on state constitutionalism was by no means unanimously embraced by the judges of the New York State Court of Appeals. In some of the court's decisions at that time, even the thought of applying state constitutional law triggered vigorous, and sometimes incredibly harshly worded, dissents. (5) Moreover, in this earlier period of renewed state constitutionalism in New York, there were unresolved and complex questions about the methods of determining whether and how state constitutional law should be applied in a given case. (6) State constitutionalism in 2013-2014 is no longer regarded as some arcane methodology requiring an initial selection of the interpretivist or noninterpretivist approach (7) or some other approach before it may be determined whether the state constitution affords greater protection than the federal in a given case. (8) Rather, it is simply the logical and imminently fair doctrine that when a New York court concludes that an individual has rights that are not protected under the federal Constitution, but should be under the New York Constitution, the court will afford that person the greater protection as a matter of state constitutional law. It is simply a matter of fairness and common sense. As Judge Kaye noted in her concurring opinion in People u. Scott--responding to the arguments raised in the dissent against giving a defendant the protection of the state constitution for rights not covered under the federal Constitution--such independent state constitutionalism in no way demeans the Supreme Court as the nation's highest court, or challenges the authority of its decisions as the supreme law of the United States, or offends the Justices. (9) Today, New York courts accept and routinely apply state constitutionalism when necessary to effectively safeguard individual rights and liberties. In short, independent state constitutional law is no longer considered novel or unusual. It is now routinely accepted and applied as a matter of course. (10) What is worthy of note is the variety and in some instances the unquestioned significance of the cases in which state constitutionalism has been employed. In the balance of this article, I will discuss in depth some of these cases. PEOPLE v. WEAVER Consider Weaver, a case involving the constant tracking of the defendant via secret police installation of a Global Positioning System (GPS) under the fender of his minivan. (11) A Court of Appeals majority held that this use of the GPS device constituted an unconstitutional search in violation of privacy rights under article I, section 12 of the New York Constitution. (12) The Weaver case is significant for several reasons. It is virtually certain to be cited and its applicability questioned in future cases involving the use by police of newer and more sophisticated electronic devices to track a defendant's movements and whereabouts. (13) As stated in a recent front page New York Times article: Once, only hairdressers and bartenders knew people's secrets. Now, smartphones know everything--where people go, what they search for, what they buy, what they do for fun and when they go to bed. (14) The dissenting opinion at the Third Department by Justice Leslie Stein and Chief Judge Jonathan Lippman's majority opinion for the Court of Appeals both contain significant discussions of state constitutional law. …