Rainey v. Commonwealth

Concurring Opinion by

Justice ROACH.

I concur in the result reached by the majority. I write separately, however, to express my concern with the majority’s reliance on LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky.1996), for the proposition that Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment. LaFollette does indeed include such a statement. Id. at 748. For the reasons expressed herein, however, I would be willing to reconsider LaFollette in the appropriate case.

To begin, LaFollette’s cited authority does not stand for the claimed proposition. LaFollette notes that Section 10 and the Fourth Amendment are similar, thus the United States Supreme Court’s interpretation of the Fourth Amendment, though not binding, is certainly informative and persuasive in our interpretation of Section 10. *96LaFollette follows this rather unremarkable proposition with the following language:

Stated otherwise, Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment. Estep v. Commonwealth, Ky., 663 S.W.2d 213 (1983).

915 S.W.2d at 748.

However, Estep does not actually state that Section 10 of the Kentucky Constitution provides no greater protection than the Fourth Amendment. In fact, it makes no statement that would even approach that proposition. Estep simply adopted the rule of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), concerning searches of vehicles and their compartments and contents. Id. at 215. Rather than stating the broad proposition that Section 10 provides protection identical to federal Fourth Amendment jurisprudence, this Court simply observed that the rule of Ross was “in harmony with Section 10.... ” Id. In essence, Estep held that in a particular instance, Section 10 provided the same protection as the Fourth Amendment. But nowhere does Estep state that Section 10 is only coextensive with the Fourth Amendment. As we had only recently noted when LaFollette was rendered, “this Court’s decisions have not been entirely consistent as to whether Section 10 and the Fourth Amendment are parallel.... ” Crayton v. Commonwealth, 846 S.W.2d 684, 687 (Ky.1992). Crayton then noted three cases, including Estep, where the Court had held in specific situations, and again without stating a broad proposition, that the relevant federal rule was in accord with Section 10. LaFollette committed the error of deriving an absolute, general rule from a specific situation. Such generalization, absent further explication, does not withstand scrutiny. Cf. Commonwealth v. Cooper, 899 S.W.2d 75, 77-78 (Ky.1995) (holding that Ky. Const. § 11 provides no more protection than the Fifth Amendment, but doing so with extensive explanation of why the two provisions provide only coextensive protection).

While it is likely that Section 10 of the Kentucky Constitution provides no greater protection than the Fourth Amendment to the United States Constitution, I do not necessarily believe that we are bound to interpret Section 10 in the same manner as the United States Supreme Court has interpreted the Fourth Amendment. Our case law clearly contemplates the possibility that our own constitutional protections could diverge from those in the federal constitution. See Cooper, 899 S.W.2d at 77-78 (“From time to time in recent years this Court has interpreted the Constitution of Kentucky in a manner which differs from the interpretation of parallel federal constitutional rights by the Supreme Court of the United States. However, when we have differed from the Supreme Court, it has been because of Kentucky constitutional text, the Debates of the Constitutional Convention, history, tradition, and relevant precedent.”). Obviously, the United States Supreme Court’s interpretation of the Fourth Amendment represents a minimum amount of protection to which criminal defendants are entitled. And I acknowledge that given the linguistic similarity between the Fourth Amendment and Section 10, we should give great weight to the United States Supreme Court’s interpretation of the federal amendment. See Crayton, 846 S.W.2d at 687. We have even stated what might amount to a preference for not recognizing different protection under the state constitution. See Holbrook v. Knopf, 847 S.W.2d 52, 55 (Ky.1992) (noting in the context of determining whether our constitutional protections are only coterminous with those of the federal constitution that “[w]e have no intention that such cases should encourage lawsuits espousing novel theories to revise well-established legal practice and principles”).

*97However, if we were to determine that Section 10 of the Kentucky Constitution, as applied to a specific case, contained more protections than the United States Supreme Court had declared is provided by the Fourth Amendment, I believe that we should honor our own constitution. The issue could arise in a situation where the United States Supreme Court has interpreted the Fourth Amendment in such a way as to formulate a legal rule that is inconsistent with the original understanding of Section 10 of the Kentucky Constitution. In such a case, we should decline to defer to the United States Supreme Court’s interpretation of the Fourth Amendment when interpreting our own constitutional provision, which is an independent legal protection with a different, albeit related, history and origin. To do otherwise would violate our oath of office by which we are bound to “support the Constitution of the United States and the Constitution of this Commonwealth.... ” Ky. Const. § 228 (emphasis added). Our obligation to engage in independent analysis under our own constitution is even more apparent where the relevant federal precedent is weak.

Thus, on the particular issue before us, I note that there is some question whether Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127,158 L.Ed.2d 905 (2004), is a constitutionally sound decision. I agree with Justices Scalia, O’Connor, and Ginsburg that Thornton is on shaky ground. See id. at 624,124 S.Ct. at 2133 (O’Connor, J., concurring) (writing “separately to express [her] dissatisfaction with the state of the law in this area” and noting that New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), on which Thornton was premised, already had a “shaky foundation”); id. at 628-29, 124 S.Ct. at 2135 (Scalia, J., concurring, joined by Ginsburg, J.) (“[I]n our search for clarity, we have now abandoned our constitutional moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find. I agree entirely with that assessment.” (internal citation and quotation marks omitted)). Moreover, Thornton is not the strongest precedent to begin with, as only four justices — a minority of the Court — joined all of the reasoning of the opinion of the Court. Though we are bound by the Court’s plurality opinion insofar as it creates a minimum amount of protection, to blindly attach its rule to our own Section 10, given the disparate approaches urged by the members of the Court, makes little sense. If Section 10 charts a clearer course, we should follow it.

However, with all this said I concur in the result of the majority opinion. The parties have only argued within the parameters of Thornton’s plurality rule, in effect, agreeing that Section 10 provides only as much protection as the Fourth Amendment. While I welcome the day that we might revisit LaFollette, I simply cannot do so without full briefing and argument of such an important issue. See Thornton, 541 U.S. at 625, 124 S.Ct. at 2133 (O’Connor, J., concurring) (“I am reluctant to adopt it in the context of a case in which neither the Government nor the petitioner has had a chance to speak to its merit.”). This case simply does not squarely present the issue of whether Section 10 requires a rule as to recent occupants of automobiles different from that which the United State Supreme Court has applied under the Fourth Amendment. For that reason, I concur.

LAMBERT, C.J., joins this concurring opinion.