It has long been recognized that a state, if its citizens so chose, may "serve as a laboratory" for economic and social legislation. In an era of new federalism, state courts have experimented by extending individual rights under state constitutions that the United States Supreme Court, beginning with the Burger Court, refused to recognize under the federal constitution. Although this approach has been criticized by the judiciary and academia, it continues to be a driving force in the development of individual rights.
In United States v. White, the Supreme Court held that the police practice of obtaining evidence with warrantless consensual electronic surveillance is not an unlawful search and seizure under the Fourth Amendment. Several state courts, however, have experimented with the admissibility of evidence obtained by warrantless consensual electronic surveillance and have extended rights under their state constitutions. Recently, states have abruptly halted this experimentation with warrantless electronic surveillance. Although the state supreme courts of Vermont, Alaska, and Massachusetts continue to hold that warrantless participant monitoring violates their respective state constitutions, Louisiana, Montana, Michigan, and Florida, states that once refused to validate warrantless electronic surveillance, have reversed prior decisions and have brought their state constitutional interpretation in line with federal criminal constitutional jurisprudence. This trend reflects a change in the nature of federalism and suggests a change in the role of state courts and constitutions in shaping individual rights.
Melanie L. Black Dubis,
The Consensual Electronic Surveillance Experiment: State Courts React to "United States v. White",
47 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol47/iss3/6