concurring.
I join the majority opinion but write separately to respond to the criticisms advanced in Judge Baird’s dissenting opinion. Judge Baird contends that the majority misinterprets the Fourth Amendment, but the Fourth Amendment is not an issue in this case, and the majority opinion does not purport to interpret that Amendment. Appellant has relied solely upon Article I § 9 before the trial court, the Court of Appeals, and now upon Petition for Discretionary Review. This is simply not a Fourth Amendment case.
But the dissent attempts to make this a Fourth Amendment case. He contends that this Court violates the Supremacy Clause when we interpret Article I § 9 of the Texas Constitution as conferring less protection than the Fourth Amendment to the United States Constitution. The dissent’s contention is flawed for several reasons.
First, this Court has long recognized its ability to interpret the state constitution as providing less protection than its federal counterpart. Long ago, we held that Article I § 9 — unlike the Fourth Amendment — contains no exclusionary rule. Welchek v. State, 93 Tex.Crim. 271, 247 S.W. 524, 529 (Tex.Crim.App.1922). In so doing, we found that Article I § 9 conferred less protection than its federal counterpart. Welchek, 247 S.W. at 528-529. Of course, Welchek preceded the Supreme Court’s application of the Fourth Amendment to the States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Nevertheless, we have reaffirmed the continuing vitality of Welchek, along with our prerogative to interpret Article I § 9 independent from the Fourth Amendment even when an independent interpretation would lead to a conclusion that the Texas constitutional provision confers less protection. Richardson v. State, 865 S.W.2d 944 (Tex.Crim.App.1993): “Even if the language of Article I § 9 were identical to that of the Fourth Amendment, we must construe that language according to our own lights.” Id. at 948. That quotation is immediately followed by a footnote explaining our holding in Welchek, finding that Article I § 9, unlike the Fourth Amendment, “embodies no exclusionary rule.” Id. at 948 n. 3 (emphasis mine).
In his concurring opinion in Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996), Judge Clinton argued that the state double jeopardy provision conferred more protection than its federal counterpart. In so arguing, he emphasized that independent interpretation of state constitutional provisions is a two-way street, and that this Court can and has interpreted provisions of the state constitution (specifically Article I § 9) as conferring less protection than their federal counterparts:
We are, in fact, free to disagree with the Supreme Court when it comes to finding less protection in our state constitution. We have held, for instance, that, unlike the Fourth Amendment, Article I § 9 brooks no exclusionary rule. A claim of illegal search or seizure brought only under Article I § 9 would avail the criminal defendant of nothing at all were it not for Article 38.23 of the Code of Criminal Procedure, our statutory exclusionary rule. For this reason a defendant is likely to invoke the Fourth Amendment under the incorporation doctrine of the Fourteenth Amendment. But that would not negate the fact that Article I § 9 of the Texas Constitution is less protective — and nobody, including the United States Supreme Court can tell this Court otherwise.
Bauder, 921 S.W.2d at 700 (Clinton, J. concurring)(brackets, quotation marks and citations omitted).
*440Second, the dissent confuses two distinct concepts: (1) the possession of fewer rights by a state’s citizenry than the United States Constitution confers, and (2) the recognition that a state constitutional provision confers less protection than a counterpart federal constitutional provision. Concept (1) violates the Supremacy Clause but concept (2) does not. Citizens must possess the rights guaranteed by the United States Constitution, but the state constitution is not (and need not be) the vehicle for conferring those rights. Instead, the United States Constitution itself confers those protections upon a state’s citizenry. This point is illustrated by the Oregon Supreme Court in its remand opinion from the Supreme Court decision in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982):
The state argues, correctly, that diversity does not necessarily mean that state constitutional guarantees always are more stringent than decisions of the Supreme Court under their federal counterparts. A state’s view of its own guarantee may indeed be less stringent, in which case the state remains bound by whatever is the contemporary federal rule. Or it may be the same as the federal rule at the time of the state court’s decision, which of course does not prevent that the state’s guarantee will again differ when the United States Supreme Court revises its interpretation of the federal counterpart. The point is not that a state’s constitutional guarantees are more or less protective in particular applications, but that they were meant to be and remain genuine independent guarantees against misuse of the state’s governmental powers, truly independent of the rising and falling tides of federal case law both in method and in specifics.
State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1323 (Or.1983).1
Finally, the dissent overlooks the fact that most rights are those that must be implemented upon request:
The system of adjudication at work in Texas, and generally throughout the United States, is chiefly characterized by an array of rules which are optional with the litigants. This is consistent with an adversarial process in which the trial judge, as institutional referee, enforces rules of contention only when asked to do so by a litigant for whose benefit the rule exists. For example, evidence of a certain kind, such as hearsay, might be excluded upon request of a party to the lawsuit. The trial judge has no duty to exclude it on his own, and would probably fall into error if he did. Once admitted without objection, such evidence enjoys a status equal to that of all other admissible evidence.
Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim.App.1993) (citation omitted). “All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong.” Id. at 279. Forfeita-ble rights include many of constitutional origin. Id. And Fourth Amendment claims fall within the type of claims that are forfeited unless a party timely requests the constitutional protections involved. Little v. State, 758 S.W.2d 551, 564 (Tex.Crim.App.1988).
The appellant in the present case could have invoked the protections of the Fourth Amendment by request. Having requested protection only under Article I § 9, however, appellant forfeited any protections he was entitled to under the Fourth Amendment. The Fourth Amendment protections were available; appellant simply chose not to avail himself of them. The State of Texas is not obligated to offer those same protections in its own constitution.
McCORMICK, P.J., joins
. The dissent cites the Supreme Court's decision in Oregon v. Kennedy as support for his position that the Supremacy Clause prevents a state from interpreting its own constitution in a less protective manner than the United States Constitution. Not only is there nothing in the text of that opinion to support the dissent's position, see generally Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416, but the above quotation also shows that the Oregon Supreme Court, on remand of that very case, did not share the dissent’s interpretation of the United States Supreme Court’s opinion.