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Wisconsin Constitution – Construction – “New Federalism” – Art. I, § 11: “Actually Yielded to Authority” Test for Seizure

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate


¶19      … (T)his court ordinarily adopts and follows the Fourth Amendment jurisprudence of the United States Supreme Court.…

¶27      Young, however, argues that we should reject Hodari D. and interpret Article I, Section 11 of the Wisconsin Constitution to afford greater protections to individual liberty interests than does the Fourth Amendment. …

¶30      Typically, this court interprets Article I, Section 11 of the Wisconsin Constitution in tandem with the Fourth Amendment jurisprudence of the United States Supreme Court. Griffith, 236 Wis.  2d 48, ¶24 n.10.  Of course, we do not always follow the Supreme Court’s lead, [9] and the Court does not require us to do so when we supplement the United States Constitution’s protections with protections under our own constitution.  See Michigan v. Long, 463 U.S. 1032, 1041 (1983) (“It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.”). [10] We embrace the Fourth Amendment jurisprudence of the United States Supreme Court when we perceive soundness in Supreme Court analysis and value in uniform rules. We follow that course in this case.

Hodari D. imposes an actually-yielded test to determine when someone has been seized by the police. If the cop yells “stop” and you ignore him and walk or run away you haven’t been seized unless and until the cop catches you. A number of state courts have rejected that test under their constitutions as too restrictive; Wisconsin now refuses to take that step: so much for “New Federalism,” which seems to have run its course, at least with respect to Art. I, § 11. Note that the court relies exclusively on a cost-benefit (deterrence) approach to the suppression rule, ¶49, without so much as a nod to the idea that there are separate doctrinal bases under New Federalism, namely judicial integrity and/or vindication of a citizen’s personal rights; see discussion in this section. More puzzling, the court analyzes the policy for greater state constitution protection solely with regard to the policy basis for the fourth amendment, e.g., ¶49. There is, in other words, not even a rhetorical pass at separate state constitutional analysis. The court’s other articulated reason (¶51) for rejecting greater state constitutional protection is stare decisis, namely the purported adoption of Hodari D. in the recent State v. Kelsey C.R., 2001 WI 54. This invocation of the virtues of precedent is quite odd, for two reasons. One, it shouldn’t make any difference to state constitutional analysis that federal constitutional precedent would bar greater protection. That’s the whole point isn’t it, to go beyond the federal precedent? (Unless, of course, the analyses are coordinate, in which case why bother with a state constitutional argument anyway?) Two, fealty to precedent isn’t controversial, but there was no such holding in Kelsey C.R., and therefore the court did not have to actually submit to its (non-existent) authority. On this point, see the dissent, ¶¶126-32; it’s not as if the fractured nature of that opinion was a big secret). So, in the end, the court rejects a New Federalism argument purely on the basis of a) federal precedent and b) state “precedent” that doesn’t exist. Art. I, § 11 was a nice lark for the several months or so it lasted.


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