Eric Fish
@ericfish.bsky.social
1.6K followers 820 following 168 posts
Law Professor at UC Davis. Writing about criminal law, constitutional rights, and prosecutions at the border.
Law Professor at UC Davis. Writing about criminal law, constitutional rights, and prosecutions at the border.
![TEXTUAL (IN)DIFFERENCE IN STATE SEARCHAND-SEIZURE PROVISIONS
Quinn Yeargain
ABSTRACT—Over the past 250 years, state constitutional drafters have refined the scope of rights and liberties protected by their constitutions’ texts. Today, all state constitutions include a search-and-seizure provision—and though only a minority follow the layout, text, and context of the Fourth Amendment to the U.S. Constitution, most of them bear a striking resemblance to it. However, textual variations abound. Some of them may seem minor, like using the word “possessions” instead of “effects,” or mandating that warrants describe their intended targets “as nearly as may be” instead of requiring that they “particularly describ[e]” them. But others, like the addition of “electronic data and communications,” are far more significant. Yet regardless of the nature of the addition, most courts do not seem to view these linguistic changes as legally significant. While there are some exceptions, most state courts effectively gloss over the textual differences when interpreting the scope of their searchand-seizure provisions.
In this Essay, I argue that these textual differences could alter the applicability of several doctrines from federal criminal procedure jurisprudence—and that they should not be read out of state constitutions. Relying on an original database of state constitutions and proposed amendments, I chart out the textual changes to state constitutions’ search-and-seizure provisions from 1776 to present, survey case law interpreting these provisions, and conclude that while courts have largely not treated these differences as relevant, they should.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:q3dycka5ce2gybcbau5gfehd/bafkreicqgcrigwgxvhobnftdhagc33znvle5a4a44brqhau7c7avrbqrum)
