State v. Brown

WELLIVER, Judge,

concurring in part and dissenting in part.

I agree with my brother Blackmar, J. that what is said in Part III of the principal opinion is not necessary to the resolution of this case. I write separately to emphasize that I cannot agree with how the principal opinion resolves the issue. I cannot subscribe to the principal opinion’s unwillingness to treat our state constitution independent of any interpretation of the federal constitution. In recent years, our nation has witnessed what is now termed the “reemergence of state constitutional law,” and a number of state courts are beginning to recognize that principles of federalism suggest that the federal constitution only provides the minimum level of protection, leaving state courts free to of interpret their own state constitutions to provide greater protection to individual liberty.1 A *148number of state courts, therefore, have rejected the reasoning of United States Supreme Court decisions and interpreted their own state constitution to provide greater protection. See e.g., People v. Ramos, 37 Cal.3d 136, 207 P.2d 430, 689 P.2d 430 (1984); Right to Chose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982); State v. Neville, 346 N.W.2d 425 (S.D.1984). And, in Stringer v. State [136 No. 54,805 (Miss. Feb. 27, 1985)], the Mississippi Supreme Court refused to adopt the reasoning of United States v. Leon, supra, and kept the exculsionary rule intact under the state constitution.

Determination of the issues in this case does not require either approving or disapproving the good faith exception to the exclusionary rule in Missouri. This is far too important a matter to be decided by dictum, and, when this matter is decided, it should be decided based upon our Missouri statutes and our Missouri Constitution, not by parroting the “teachings of Leon.”

. See generally W. Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions In the Revolutionary Era (1980); State Supreme Courts: Policymakers in the Federal System (1982); Developments in State Constitutional Law (1985); Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324 (1982); Abrahamson, Reincarnation of State Courts, 36 Sw.LJ. 952 (1982); Bamberger, Boosting Your Case With Your State Constitution, 72 A.B.A. J. 49 (1986); Bator, The State Courts and Collins, Reliance on State Constitutions — Away from a Reactionary Approach, 9 Hast. Const. L. Q. 1 (1981); Galie, The Other Supreme Courts: Judicial Activism Among State *148Supreme Courts, 33 Syracuse L.Rev. 731 (1982); Kamp, Private Abridgement of Speech and the State Constitutions, 90 Yale L. J. 165 (1980); Kirby, Expansive Judicial Review of Economic Regulation Under State Constitutions: The Case for Realism, 48 Tenn.L.Rev. 241 (1981); Levin-son, Interpreting State Constitutions by Resort to the Record, 6 Fla.St.U.L.Rev. 567 (1978); Linde, E. Pluribus — Constitutional Theory and State Courts, 18 Ga.L.Rev. 165 (1984); Linde, First Things First: Rediscovering the State’s Bill of Rights, 9 U.Balt.L.Rev. 379 (1980); O’Connor, Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge, 22 Wm. & Mary L.Rev. 801 (1981); Pollock, State Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L.Rev. 707 (1983); Satter & Gable, Litigation Under the Connecticut Constitution — Developing a Sound Jurisprudence, 15 Conn.L.Rev. 57 (1982); Sturm, The Development of American State Constitutions, 12 Publius: J. Federalism 57 (1982); Sundequist, Construction of the Wisconsin Constitution — Recurrence to Fundamental Principles, 62 Marq.L.Rev. 531 (1979); Swindler, Minimum Standards of Constitutional Justice: Federal Floor and State Ceiling, 49 Mo.L. Rev. 1 (1984); Tarr & Porter, Gender Equality and Juciail Activism: The Role of State Appellate Courts, 9 Hast. Const.L.Q. 919 (1982); Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U.Puget Sound L.Rev. 491 (1984); Williams, State Constitutional Law Processes, 24 Wm. & Mary L.Rev. 169 (1983); Williams, In the Supreme Court’s Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C.L.Rev. 353 (1984); Wright, In Praise of State Courts: Confessions of a Federal Judge, 11 Hast. Const. L.Q. 165 (1984); Note, Rediscovering State Constitutions for Individual Rights Protection, 37 Baylor L.Rev. 403 (1985); Comment, Rediscovering the Wisconsin Constitution: Presentation of Constitutional Questions in State Courts, 1983 Wis.L.Rev. 483. See also Sedler, The State Constitutions and the Supplemental Protection of Individual Rights, 16 U.Tol.L.Rev. 465 (1985); Symposium: The Emergence of State Constitutional Law, 63 Tex. L.Rev. 959 (1985).