Student Review:

     Slobogin's article concerns the 1983 amendment passed in Florida which mandated that Florida's Constitutional provisions against unlawful search and seizures be construed in conformity with the Supreme Court's interpretation of the Fourth Amendment.  Slobogin finds this forced linkage between article I, section 12 of the Florida Constitution and the Supreme Court's Fourth Amendment decisions destroys the autonomy of state courts.  Rather, Slobogin feels that the amendment should be repealed, or at least narrowly interpreted to allow state courts to rely on their own interpretations of search and seizure law.
      As long as states adhere to the federal minimum protection under the law, the states are free to hold higher standards for searches and seizures.  The approach to federal and state relations have undergone four major historical changes.  The first phase was dual federalism when the Bill of Rights had no application on state courts.  State courts were free to develop their own laws on criminal procedure.  Beginning in the 1960s with the Warren Court, the Supreme Court began to take a much more powerful role and during this co-option phase, state courts frequently assumed the same standards as the Supreme Court.  The third phase is labeled New Federalism, from the 1970s until today, in which state courts feel more free to deviate from federal law while still meeting the federal minimum.  Finally, Slobogin finds a new phase of forced-linkage developing in which states limit themselves to adhering to federal constitutional law.  This forced-linkage occurs either when state courts interpret state constitutions only in accordance with Supreme Court decisions, or as in Florida where amendments to the state constitution require courts to adopt federal constitution law.
     Slobogin finds that the policy of New Federalism bests serves the states and allows state courts to develop more protective standards than the Supreme Court.  He argues than no more uncertainty would exist than already developed in criminal procedure.  Furthermore, a second layer of review is not unnecessary because often state history deals with different interests, the state can only affect itself, and linkage prevents experimentation in criminal procedure law.  Forced linkage eliminates the states ability to offer its own independent review which may more clearly reflect state history and local concerns.  For these reasons, the 1983 amendment should be repealed, or at least severely limited.
     Slobogin finds for Florida state courts to be bound to federal constitutional law, there must first exist a controlling Supreme Court decision.  He points out four different occasions when a Supreme Court decision would not bind the Florida state courts.  These include: 1) Whether there is not an authoritative opinion of the court, such as a plurality opinion, court dictum, or when a resolution would require predictive stare decisis;  2) When a Supreme Court opinion is only partially based on the Fourth Amendment; 3) When the Supreme Court provides less protection than other areas of the Florida Constitution or Florida statutory law; and 4) When the Supreme Court decision has occurred after the adoption of the 1983 amendment.
     Thus, Slobogin urges that the forced linkage amendment which limits state autonomy be repealed in favor of allowing the state court more independence in the development of search and seizure law.  Without such a event, Slobogin still urges the courts to use many situations to avoid the effect of the 1983 amendment and retain a measure of state autonomy.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999