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Failure to develop a state constitutional argument waives it; merely citing it does nothing

By John Wesley Hall, Jr.

Drug dog sniff was not found to be a search under the state constitution because, although the state constitution on searches and seizures can be interpreted different than the Fourth Amendment, there was no development of the issue to show why in this case. State v. Harris, 2008 Ark. LEXIS 127 (February 28, 2008).* Comment: Arkansas has diverted from the Fourth Amendment in a couple of areas, but the fact a state has as to one issue does not mean that it will as to another. A litigant has to show why and how it is justified. Merely citing to it does nothing. This is the general rule, which is actually articulated far better in other jurisdictions: See, e.g., Commonwealth v. Bond, 693 A.2d 220, 225 ¶ 30 (Pa. Super. 1997): Generally, in each case implicating a provision of the Pennsylvania Constitution, litigants are required to brief and analyze at least the following four factors: (1) text of the Pennsylvania constitutional provision; (2) history of the provision, including Pennsylvania case law; (3) related case law from other states; and, (4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence...continue to full post

Full post as published by Fourth Amendment on March 03, 2008 (boomark / email).