Courts Locking Selves in on Search and Seizure

The Illinois Supreme Court is currently reconsidering the use of the "lockstep doctrine" in search and seizure cases. See People v. Caballes, No. 91547, on remand from Illinois v. Caballes, 125 S.Ct. 834 (2005).

"Lockstep" is the Illinois policy of interpreting the search and seizure clause of the Illinois Constitution (Article I, section 6) no more broadly than the U.S. Supreme Court interprets the Fourth Amendment.

The "lockstep" has caused problems in Illinois courts because the Illinois Supreme Court has failed to differentiate between two discrete aspects of the doctrine: substance and application. It has failed to distinguish between using "lockstep" to define the substance of Illinois search and seizure law and the entirely separate question of whether Illinois courts should have final say on the application of Illinois search and seizure law. Until the court separates the strands of these two arguments, confusion will reign.

The first idea behind "lockstep" is the one most commonly used. In People v. Tisler, 103 Ill.2d 226 (1984), the Illinois Supreme Court announced that, as a general rule, it would interpret Article I, section 6 of the Illinois Constitution in exactly the same way the U.S. Supreme Court interprets the Fourth Amendment. The only exception is if the court finds "something" in the language of the clause or the 1970 Convention debates that indicates that the Illinois provision should provide more protection to citizens than does the Fourth Amendment. Id., at 245.

Obviously, this interpretation turns federalism on its ear. In a special concurrence in Tisler, Justice William G. Clark had it exactly right: "[Lockstep] is dangerous because it limits our power to interpret our own state Constitution in the future."

So did Justice James D. Heiple: "There is no reason for deference in this area of constitutional interpretation.... Regardless of the language employed in the two documents, they are separate and distinct. The United States Supreme Court has the responsibility to interpret the federal Constitution; the Illinois Supreme Court has the responsibility to interpret its state Constitution. These are nondelegable duties." People v. Mitchell, 650 N.E.2d 1014, 1025 (1995).

Lockstep obviously has Justice Louis D. Brandeis rolling over in his grave. It was Brandeis who envisioned the federal system as one in which an individual state would serve as a "laboratory" in which a state could experiment by granting its citizens more rights than the federal Constitution mandates. New State Ice Co. v. Liebmann, 285 U.S. 262, 311. But to paraphrase Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals, the Illinois Supreme Court apparently sees its role not as an independent laboratory, but rather as a low-level employee merely following orders in a research park run by the U.S. Supreme Court. Kremen v. Cohen, 325 F.3d 1035, 1047 (9th Cir. 2003).

Lockstep is an embarrassingly simplistic view of federalism that sees constitutional law in terms of finding the "one true answer." Yet as Paul Kahn has written, state courts should understand that "constitutionalism is not a single set of truths, but an ongoing debate about the meaning of the rule of law in a democratic political order." Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harvard L.Rev. 1147, 1147-48 (1993). American constitutionalism should be a ceaseless discourse, a process by which we discover our constitutional values. This is also one of the themes of Justice Stephen G. Breyer's new book, "Active Liberty." Yet the Illinois Supreme Court's decision to follow in lockstep means that it is refusing to engage in this common interpretive project that lies at the heart of a vigorous federalism.

This is what we commonly think of when we consider lockstep. But there is a second, completely separate issue that also needs to be discussed.

Let's assume for the sake of argument that lockstep is fine. Three cheers for Tisler. We thus accept the fact that Illinois courts will decide search and seizure cases by simply determining how the U.S. Supreme Court would decide a federal case raising search and seizure issues under the Fourth Amendment. That is lockstep.

Then riddle me this: If Illinois courts have been slavishly following the U.S. Supreme Court's rulings in search and seizure cases, why has the U.S. Supreme Court reversed every one of the six Illinois cases it has reviewed since Tisler instituted "lockstep" in 1984?

If the U.S. Supreme Court's rulings on the Fourth Amendment automatically determine the exact meaning of Article I, section 6 of the Illinois Constitution, then there should never be any disagreement between Illinois courts and the U.S. Supreme Court.

And this brings us to a distinction that the Illinois Supreme Court refuses to recognize: Even if two courts agree on the substance of a law, this does not mean that they will necessarily agree on its application in any particular case.

Each of the six cases reversed since Tisler were defense victories in the Illinois courts. Illinois v. Caballes, 125 S.Ct. 834 (2005); Illinois v. Lidster, 540 U.S. 419 (2004); Illinois v. McArthur, 531 U.S. 326 (2001); Illinois v. Wardlow, 528 U.S. 119 (2000); Illinois v. Rodriguez, 497 U.S. 177 (1990); Illinois v. Krull, 480 U.S. 340 (1987).

Yet because of lockstep, the Illinois and U.S. decisions were all based on exactly the same principles of Fourth Amendment law.

Was Illinois "wrong" in these six cases? Of course not. The judges simply applied existing Fourth Amendment law in a different way than the U.S. Supreme Court did. Courts often disagree on how to apply the law. Of course, once the U.S. Supreme Court decided these six cases, the "meaning" of the Fourth Amendment changed. But, as we know, the U.S. Supreme Court's judgment is not final because it is infallible; it is infallible only because it is final. Brown v. Allen, 344 U.S. 443, 540 (1953).

The real issue is this: What were any of these six cases doing before the U.S. Supreme Court in the first place? None had to be reviewed -- if the Illinois reviewing courts had used "lockstep" to determine the substance of Illinois law and then had predicated their rulings solely on Article I, section 6 -- i.e., used "independent and adequate state grounds" -- then the U.S. Supreme Courtwould have had no jurisdiction. Michigan v. Long, 463 U.S. 1032 (1983).

Lockstep says that Article I, section 6 means exactly the same as the Fourth Amendment. But there is nothing in the doctrine that mandates that the Illinois Supreme Court must have its work checked by the U.S. Supreme Court as if it were an inferior federal court.

In all six cases the Illinois courts could have made the judgment "final" by simply relying on the Illinois Constitution. But by gratuitously predicating these decisions on the Fourth Amendment, they opened them all to completely unnecessary review by the U.S. Supreme Court.

Thus, Illinois courts deprived Illinois defendants of a final decision by needlessly exposing them to the expense and uncertainty of federal review.

And here is where we have to differentiate between these two different issues. "Lockstep" means that Illinois courts chose to decide the search and seizure issues in these six cases in exactly the same way they determined that the U.S. Supreme Court would have. But having done so, "lockstep" does not mandate U.S. Supreme Court review of these Illinois court decisions. "Lockstep" determines the substance of the law that must be applied in a given case, but it does not mean that the Illinois Supreme Court must also give up its sovereignty by functioning merely as the U.S. Court of Appeals for the Illinois Circuit.

Illinois courts owe Illinois defendants finality; this is done by predicating pro-defense decisions on independent and adequate state grounds regardless of whether they are using lockstep to determine the substance of the law they apply.

And here is the irony. The draconian limits on federal habeas corpus established by the Anti-terrorism and Effective Death Penalty Act were grounded on the idea that comity should force federal courts to respect the "finality" of state convictions.

But, as can be seen in these cases, Illinois courts have shown no parallel interest in protecting the "finality" of their pro-defense decisions. Instead, by refusing to rely on "independent and adequate state grounds" in pro-defense decisions, they needlessly expose Illinois defendants to unnecessary and gratuitous review by the U.S. Supreme Court.

Ideally the Illinois Supreme Court should announce that it will no longer follow in lockstep, and that it will at least consider whether the state Constitution sometimes provides more protection to Illinois citizens than does the Fourth Amendment.

But even if the court lacks the legal self-confidence to wean itself away from using the doctrine to define the "substance" of Illinois search and seizure law, at least it should respect its own "applications" of law by beginning to use the Illinois Constitution to protect the finality of its pro-defense decisions. Lockstep turns the Illinois Supreme Court into a child asking its parent for homework answers. This is humiliating enough. But once it is given the answers, the Illinois Supreme Court should not further demean itself by also asking Mom to actually check its homework.