interpretations of the federal constitution in framing
state constitutional rights. Since the Supreme Court
serves as the final arbiter of federal constitutional rights,
reliance on its reasoning helps to justify state court
decisions built on a federal base. However, when a state
court diverges from a Supreme Court interpretation of
the scope of the Fourth Amendment rights, it should
provide a reasoned explanation for the departure. State
constitutions under this technique play a gap-filling role,
supplementing the level of protections conferred by the
federal constitution.
Thus, for example, in State v. Lewis, 227 N.J. Super.
593 (1988), aff’d, 116 N.J. 477 (1989), the Appellate
Division, in ruling invalid a warrantless search of an
apartment gained from an informant that a drug
operation was located therein, “ma[d]e it clear that our
decision is rendered on state constitutional grounds,”
and in a lengthy footnote, relying upon Michigan v. Long,
supra, emphasized that “[w]e intend that our decision
rest on bona fide separate and independent state grounds,
not subject to federal review.” Id. at 594-95 n.1.
However, in affirming the decision the Supreme Court
specifically stated that the decision was based on federal
and not state grounds. State v. Lewis, 116 N.J. at 489. See
State v. Kirk, 202 N.J. Super. 28, 34 (App. Div. 1985).
III. SEARCH AND SEIZURE LAW
The New Jersey Supreme Court has relied upon the
state constitution as a source of criminal procedural rights
which the United States Supreme Court has not
adequately protected under the federal constitution.
The search and seizure clause of the state
constitution, Art. I, ¶ 7, is nearly identical to the Fourth
Amendment, and nothing in the constitutional history of
the state article suggests that it was intended to be
construed independently of the Fourth Amendment.
Heckel, “The Bill of Rights,” II Constitutional of 1947
(1951).
Both constitutional provisions are designed to cover
the same protectible interests: they acknowledge the
right of the people to be secure in their persons, papers,
and effects, against unreasonable searches and seizures.
State v. Hunt, 91 N.J. 338, 343 (1982).
A. Use of the State Constitution in Search and Seizure
Cases
In a number of search and seizure cases decided by
the Supreme Court of New Jersey since 1975, the Court
has imposed more stringent restrictions on police activity
under the state constitution than required by the Fourth
Amendment. Thus in State v. Johnson, 68 N.J. 349
(1975), a case involving the proper standard for non-
custodial warrantless consent searches, the court rejected
the holding in Schneckloth v. Bustamonte, 412 U.S. 218,
93 S.Ct. 2041 (1973), that knowledge of a right to
withhold consent, while a factor to be considered, is not
a prerequisite to establishing voluntary consent to
validate a warrantless search under the Fourth
Amendment. Rather, voluntariness is determined from
the totality of the circumstances and the burden is on the
State to show that the consent was voluntary, i.e., that the
individual in question knew that he or she had the right
to refuse consent, pointing out that “we have the right to
construe our state constitutional provision in accordance
with what we conceive to be its plain meaning.” 68 N.J.
at 353 n.2.In State v. Alston, 88 N.J. 211 (1981), the Supreme
Court further displayed its independence under the state
constitution by retaining the rule of defendants’
automatic standing in the Fourth Amendment area,
rejecting the United States Supreme Court holding in
Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421 (1978), and
United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547
(1980).Asserting its authority to extend fundamental rights
beyond the Fourth Amendment, the New Jersey
Supreme Court in Alston retained the automatic standing
rule as a matter of state constitutional law. The court in
Alston relied upon four basic reasons for not following
federal precedents: (1) the United States Supreme Court
decisions did not afford sufficient protection against
unreasonable searches and seizures, (2) the vagueness of
the federal standard which could result in an
infringement of the right to privacy, (3) state and federal
precedents supporting its interpretation of the
constitution, and (4) the court’s obligation to make rules
affecting the administration of criminal justice.In 1982, the Supreme Court continued to provide
greater protection under the state constitution than even
under the Fourth Amendment. In Hunt, supra, the court
held a subscriber’s telephone toll billing records to be
protected from unreasonable searches and seizures,
rejecting the United States Supreme Court’s decision in
Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577 (1979),
that the Fourth Amendment did not apply to
information obtained through the warrantless installa-
tion of a pen register – a device which identifies all of a
customer’s local long distance telephone numbers dialed.