specially concurring:
Although I agree with the result reached by the majority, I cannot agree that, because in the past we have looked to the Supreme Court for guidance and to make sure that our citizens have been afforded at least the minimum Federal requirements under the Constitution, we have in essence adopted the Supreme Court’s interpretation of any amendment of the Federal Constitution as our interpretation of similar provisions of our own constitution. There is nothing which prevents this court from interpreting our constitution as affording greater protection than similar provisions of the Federal Constitution.
In People v. Hoskins (1984), 101 Ill. 2d 209, a recent case of this court, the issue was whether the warrantless search of the defendant’s purse was in violation of the fourth amendment (U.S. Const., amend. IV), and section 6 of the Illinois bill of rights (Ill. Const. 1970, art. I, sec., 6). In that case, there was an interplay between section 108 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 108 — 1), which delineates the instances when a police officer may lawfully search a person incident to a lawful arrest, and the fourth amendment and section 6. The State had argued that New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, was controlling in Hoskins. The majority agreed. Belton involved a search for cannabis in the pockets of the defendant’s coat that was located within an automobile after the arresting officer had ordered the defendant from his car and detected the odor of burnt marijuana. In my dissent in Hoskins, I stated:
“Even if the State’s interpretation of Belton was correct, established Illinois law cannot be broadened in the scope of a search incident to an arrest by the Supreme Court’s decision in that case. The Illinois legislature has enacted a statute on the subject of a search incident to an arrest, and it is controlling here. While the Supreme Court may change the law from a Federal constitutional standpoint, Illinois courts must still follow the Illinois Code of Criminal Procedure. It is perfectly proper for Illinois to grant more protection to its citizens from unwarranted intrusions into their private belongings than the minimum Federal requirements under the fourth amendment to the Federal constitution.” People v. Hoskins (1984), 101 Ill. 2d 209, 227-28 (Clark, J., dissenting).
I believe the majority’s stance on this issue is dangerous because it limits our power to interpret our own State Constitution in the future. The evidence used against this defendant was admissible under both Federal and State constitutions, and it is unnecessary to hold that there are no circumstances where article I, section 6, of the Illinois Constitution could provide greater individual protection.
Under the majority’s analysis, this court would be precluded from protecting the civil liberties of Illinois citizens should the United States Supreme Court decide to consistently favor police efficiency over the rights of the accused. Although the majority’s reasoning may seem harmless today, it would preclude this court from protecting the individual liberties of Illinois citizens should such protection become essential in the future.
During the era of the Warren court, this country saw a wave of judicial activism in the Federal judiciary largely because State courts, particularly in the Deep South, were unwilling to provide the most basic protections to citizens of their State. (See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).) During the era of the Burger court, we have seen the role of the State and Federal judiciary reversed. Today, the United States Supreme Court has been cutting back on the individual liberties provided by the Warren court, while State supreme courts have attempted to protect civil liberties in State constitutions. See Michigan v. Long (1983), 463 U.S. 1032, 1065, 77 L. Ed. 2d 1201, 1231, 103 S. Ct. 3469, 3489 (Stevens, J., dissenting).
This tradition of judicial independence has a long history in Illinois. This is a court that banned prayer in public schools 50 years before the United States Supreme Court (compare People ex rel. Ring v. Board of Education (1910), 245 Ill. 334, with Engel v. Vitale (1962), 370 U.S. 421, 8 L. Ed. 2d 601, 82 S. Ct. 1261) and adopted the exclusionary rule decades before the United States Supreme Court held this rule applicable to the States (compare People v. Brocamp (1923), 307 Ill. 448, with Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684). Thus, the idea that the Illinois Constitution is co-extensive with the United States Constitution is a recent theory without support in the prior decisions of this court.
It is true that some States have held that their State constitutions provide no greater protection than the Federal Constitution. Alabama and Mississippi have adopted this point of view. (Hill v. State (Ala. 1979), 366 So. 2d 318; McCrory v. State (Miss. 1977), 342 So. 2d 897.) However, a majority of jurisdictions that have considered the question have ruled that State constitutions can provide greater protection of civil liberties than the United States Constitution. (See People v. Hoshowski (1981), 108 Mich. App. 321, 310 N.W.2d 228; State v. Flores (1977), 280 Or. 273, 570 P.2d 965; Bierkamp v. Rogers (Iowa 1980), 293 N.W.2d 577; Reeves v. State (Alaska 1979), 599 P.2d 727; Miller v. State (Tenn. 1979), 584 S.W.2d 758; People v. Williams (1978), 93 Misc. 2d 93, 402 N.Y.S.2d 289; State v. Ringer (Wash. 1983), 674 P.2d 1240; State v. Kaluna (1974), 55 Hawaii 361, 520 P.2d 51; People v. Sporleder (Colo. 1983), 666 P.2d 135; People v. Neville (S.D. 1984), 346 N.W.2d 425.) I believe that Illinois should continue to adhere to the majority position rather than adopt the minority viewpoint expounded by Alabama and Mississippi.
As the California Supreme Court has noted:
“It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse.” People v. Brisendine (1975), 13 Cal. 3d 528, 550, 531 P.2d 1099, 1113, 119 Cal. Rptr. 315, 329.
The majority misconstrues Illinois case law to justify the adoption of the Alabama approach. People v. Tillman (1953), 1 Ill. 2d 525, 529, stands for the proposition that the Federal and State constitutions should be construed alike if they are “liberally construed in favor of the accused.” This is hardly the situation in the case at bar, since we are holding in favor of the State.
I disagree with the majority’s belief that “[w]e must find in the language of our constitution, or in the debates and the committee reports of the constitutional convention, something which will indicate that the provisions of our constitution are intended to be construed differently than are similar provisions in the Federal Constitution.” 103 Ill. 2d at 245.
The Illinois Constitution, like the United States Constitution, is a living document. I have found no references to airplanes, prescription drugs, or wiretapping in the United States Constitution, or in the debate that preceded its adoption. (See generally J. Madison, The Federalist Papers (rev. ed. 1961).) This silence did not prevent the United States Supreme Court from dealing with these questions. Similarly, I believe that the absence of certain comments at the Illinois constitutional convention should not tie our hands. The Illinois Constitution, like the United States Constitution, is framed in general terms to prevent the document from being 19,000 pages long and to retain flexibility to deal with unforeseen questions. The majority opinion precludes such flexibility.
Justice Stevens criticized the approach taken by the majority when he examined a restrictive interpretation of the Massachusetts Constitution:
“In my view, the court below lost sight of this truism, and permitted the enumeration of certain rights in the Fourth Amendment to disparage the rights retained by the people of Massachusetts under Art. 14 of the Massachusetts Declaration of Rights. It is of course not my role to state what rights Art. 14 confers upon the people of Massachusetts; under our system of federalism, only Massachusetts can do that. The state court refused to perform that function, however, and instead strained to rest its judgment on federal constitutional grounds.
Whatever protections Art. 14 does confer are surely disparaged when the Supreme Judicial Court of Massachusetts refuses to adjudicate their very existence because of the enumeration of certain rights in the Constitution of the United States. The rights conferred by Art. 14 may not only exceed the rights conferred by the Fourth Amendment as construed by this Court in Gates, but indeed may exceed the rights conferred by the Fourth Amendment as construed by the state court. The dissent followed the approach of the majority to its logical conclusion, stating that there ‘appears to be no logical basis, and no support in the case law, for interpreting the term “cause” in Art. 14 differently from the “probable cause” requirement of the Fourth Amendment.’ Pet. for Cert. 9a. ‘The right question,’ however, ‘is not whether a state’s guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state’s guarantee means and how it applies to the case at hand. The answer may turn out the same as it would under federal law. The state law also may be less protective. In that case the court must go on to decide the claim under federal law, assuming it has been raised.’ Linde, E Pluribus — Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 179 (1984).
It must be remembered that for the first century of this nation’s history, the Bill of Rights of the Constitution of the United States was solely a protection for the individual in relation to federal authorities. State constitutions protected the liberties of the people of the several States from abuse by state authorities. The Bill of Rights is now largely applicable to state authorities and is the ultimate guardian of individual rights. The States in our federal system, however, remain the primary guardian of the liberty of the people. The Massachusetts court, I believe, ignored this fundamental premise of our constitutional system of government. In doing so, it made an ill-advised entry into the federal domain.” Massachusetts v. Upton (1984), 466 U.S____, 80 L. Ed. 2d 721, 730-31,104 S. Ct. 2085, 2090-91 (Stevens, J., concurring).
Justice Brandéis noted that our system of government allows States a certain degree of latitude in running their own affairs. (New State Ice Co. v. Liebmann (1932), 285 U.S. 262, 311, 76 L. Ed. 747, 771, 52 S. Ct. 371, 386-87 (Brandeis, J., dissenting, joined by Stone, J.).) I prefer this latitude to the crushing degree of uniformity advocated by the majority.