Saturday, April 24, 2004
Footnote: Myers also asserts that the search was unreasonable under Article I, Section 11 of the Indiana Constitution. Myers recites a standard of review for state constitutional claims but relies solely on Fourth Amendment jurisprudence to support his assertion. The State contends, and we agree, that Myers has waived this claim because he has failed to offer an analysis supporting an independent standard under the state constitution. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002).
# posted by gt @ 10:15
but hey wait! the quote above is wrong.
Issue: has D waived state constitutional argument?
D has stated a claim under the state constitution, cited the authority for the standard of review, and argued the persuasiveness of federal cases construing identical language. that's not the best possible argument for a state claim, but it should be enough to avoid waiver. i haven't read the brief itself.
but it looks like no malpractice.
in analyzing a state claim, look first to that state's cases on point if any,
then to federal cases, then to textually similar clauses from other states, then look to states with different clauses. If there are no cases on point anywhere, look to general principles. So it is not unreasonable here for D to support his state claim by appeal to federal cases. It is also possible to brief a state claim by referring to persuasive dissents in federal cases. Think of how Wasson v. Kentucky referenced the dissent in Bowers v. Hardwick. That could be a bad example - I haven't reread Wasson in ages.
There was no waiver, and thus due process requires the issue be resolved. The case remains in play - it was an interlocutory appeal of a motion to suppress.
Sounds like a case for a superhero, if only we knew of one. Or it could be open-sourced. An open source amicus briefing the issue of warrantless gun search under the indiana bill of rights.
barest outline:
well established case law holds that the expectation of privacy in the automobile is greater under the indiana constitution.
the text of the indiana constitution's section 11 is augmented by its relation to section 1, and we look to the founders, in 1816 and 1851, for original intent, asin Price v. Indiana, a section 9 case.
Indiana's roadblock rules are different under section 11 than federal rules.
Federal law has a bias against schoolchildren which may not be shared by indiana.
if there is a right to education, perhaps it has not been made contingent on waiver of other rights, such as the warrant requirement. until D's state concerns are addressed, he cannot be lawfully convicted. on the other hand, it was an interlocutory appeal, so now he knows what to do to preserve it for a final appeal.
case closed. i can put the aardvark costume back in the closet.
# posted by gt @ 10:15
but hey wait! the quote above is wrong.
Issue: has D waived state constitutional argument?
D has stated a claim under the state constitution, cited the authority for the standard of review, and argued the persuasiveness of federal cases construing identical language. that's not the best possible argument for a state claim, but it should be enough to avoid waiver. i haven't read the brief itself.
but it looks like no malpractice.
in analyzing a state claim, look first to that state's cases on point if any,
then to federal cases, then to textually similar clauses from other states, then look to states with different clauses. If there are no cases on point anywhere, look to general principles. So it is not unreasonable here for D to support his state claim by appeal to federal cases. It is also possible to brief a state claim by referring to persuasive dissents in federal cases. Think of how Wasson v. Kentucky referenced the dissent in Bowers v. Hardwick. That could be a bad example - I haven't reread Wasson in ages.
There was no waiver, and thus due process requires the issue be resolved. The case remains in play - it was an interlocutory appeal of a motion to suppress.
Sounds like a case for a superhero, if only we knew of one. Or it could be open-sourced. An open source amicus briefing the issue of warrantless gun search under the indiana bill of rights.
barest outline:
well established case law holds that the expectation of privacy in the automobile is greater under the indiana constitution.
the text of the indiana constitution's section 11 is augmented by its relation to section 1, and we look to the founders, in 1816 and 1851, for original intent, asin Price v. Indiana, a section 9 case.
Indiana's roadblock rules are different under section 11 than federal rules.
Federal law has a bias against schoolchildren which may not be shared by indiana.
if there is a right to education, perhaps it has not been made contingent on waiver of other rights, such as the warrant requirement. until D's state concerns are addressed, he cannot be lawfully convicted. on the other hand, it was an interlocutory appeal, so now he knows what to do to preserve it for a final appeal.
case closed. i can put the aardvark costume back in the closet.
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