Volume 153, No. 137
13, July, 2007
The Power and Reasoning
of 'Lockstep'
Those of you reading this at your desks on a beautiful summer day
might be interested in Marcel Proust's review of his two weeks as a law
clerk in Paris: ''In my most desperate moments, I have never conceived
of anything more horrible than a law office.'' Alain de Botton, ''How
Proust Can Change Your Life'' (Vintage, 1998), p. 12.
And Proust never even had to cope with the twists and turns of the
criminal procedure decisions of the U.S. Supreme Court.
For example, in 1991 the court in Payne v. Tennessee held that ''victim
impact'' testimony was admissible in death penalty hearings. 501 U.S.
808 (1991). Payne overruled two very recent cases that had barred
such testimony. South Carolina v. Gathers, 490 U.S. 805 (1989); Booth v. Maryland, 482 U.S. 496
(1987).
Why the sudden change-of-heart?
Stripped of the legal mumbo jumbo, the bottom line was that Justices David Souter and Anthony
Kennedy had replaced Justices William Brennan and Lewis Powell, respectively.
Justice Thurgood Marshall's dissent in Payne did not miss this point. In his eloquent dissent - which
would be the last opinion of his career - he equated the court's change of mind with its change in
personnel and noted that ''Power, not reason, is the new currency of this court's decisionmaking.''
At 844 (Marshall, J., dissenting).
But before you get too misty-eyed, you might first do a LEXIS search of the phrase ''power not
reason.'' There you will find an equally eloquent dissent, this time by Justice John M. Harlan, in
which he railed against the Warren Court for overruling a Vinson Court precedent that was only 12
years old. Harlan criticized the majority for speaking ''only [with] a voice of power, not of reason.''
367 U.S. 643, 686 (Harlan, J., dissenting).
The case? Mapp v. Ohio, 367 U.S. 643 (1961), where the Warren Court found the Fourth
Amendment's exclusionary rule binding on the states, thus overruling the recent holding by the
Vinson Court in Wolf v. Colorado, 338 U.S. 25 (1949).
Clearly, what is ''power'' and what is ''reason'' lies very much in the eye of the beholder. (Waiter, a
little more sauce for both the goose and the gander, please.)
The U.S. Supreme Court is not shy about overruling recent precedent. Last month Justice Antonin
Scalia asked the court to overrule part of its 2003 decision in McConnell v. Federal Election
Commission, 540 U.S. 93 (2003). He noted: ''Overruling a constitutional case decided just a few
years earlier is far from unprecedented.'' Federal Election Commission v. Wisconsin Right to Life, No.
06-969, decided June 25, 2007 (Scalia, J., concurring in part and concurring in the judgment), slip
op. at 19. He then dropped a footnote listing 11 cases the Supreme Court had decided between 1971
and 1996. Each case had overruled an earlier case; the average age of the overruled case was less
than 6 years.
Thus, the Supreme Court seems a lot more interested in decisis than in stare. The court's ''Tower of
Truth'' on closer analysis looks like a rachitic ''Tower of Babel.''
True, politics is going to permeate any branch of government, and only the naive would expect
otherwise. And no question the Supreme Court has the final say at any given time on the meaning of
the U.S. Constitution.
So why did the Illinois Supreme Court through its ''lockstep theory'' voluntarily - and unnecessarily
- cede all of its authority in search and seizure law to the politically charged vicissitudes of the U.S.
Supreme Court's Fourth Amendment jurisprudence?
That issue was brought home in the recent 2d District Appellate Court decision in People v. Tywan
M. Starnes, 2007 Ill. App. LEXIS 652, decided June 12, 2007.
Starnes was convicted on a charge of possession of cannabis that arose through a vehicle stop. On
appeal, he alleged that his counsel was ineffective for not filing a motion to suppress. Starnes
claimed that the officer's conduct during the traffic stop exceeded the proper scope of such a stop as
established by the Illinois Supreme Court in People v. Gonzalez, 204 Ill.2d 220 (2003).
Gonzalez dealt with the serious problem of what limits should be placed on police officers who try
to turn simple traffic stops into ''fishing expeditions'' for suspicionless drug and weapons searches.
It was concerned with the recurring problem of officers who use stops for minor offenses as a foot
in the door to get ''consent'' for such searches. And it obviously was motivated by that ubiquitous
issue that dare not speak its name - racial profiling.
After an exhaustive analysis of both federal and state law on this issue, Gonzalez adopted a wise
solution. It held that an officer may not ask a question unrelated to the purpose of the stop unless
the officer can show that he had a reasonable, articulable suspicion that would justify the question.
If the question is so justified, then it is constitutionally proper. But if it is not so justified, the court
must then decide whether the question impermissibly prolonged the detention or changed the
fundamental nature of the stop. At 235. In other words, the court must examine not only the
duration of the stop, but the scope of the questioning as well.
Gonzalez offers a sophisticated, nuanced solution to a very real problem closely connected to racial
profiling, an issue that has so bedeviled Illinois that the legislature has instituted a program to
collect statistics on how the race of the driver correlates with traffic stops. 625 ILCS 5/11-212. It is
a ruling that is very much attuned to law enforcement problems specifically found in racially
motivated traffic stops in Illinois.
Thus, relying on Gonzalez, Starnes argued that the officer who stopped him improperly asked
questions beyond the scope of the original stop. The 2d District, however, held that Gonzalez is no
longer good law.
It first noted that since Gonzalez the U.S. Supreme Court has twice held that whether or not police
go beyond the scope of a stop is not constitutionally relevant. Thus, while Gonzalez held that both
time and scope were relevant, the U.S. Supreme Court holds that only time is.
The Supreme Court first held this in Illinois v. Caballes, 543 U.S. 405 (2005), where it said that as
long as a drug dog sniff of a car did not improperly extend the duration of the traffic stop, then the
police activity was legal. Whether the sniff was beyond the scope of the stop was irrelevant.
Likewise, the court in Muehler v. Mena held that, as long as a person is legally seized, the police are
allowed to question her about anything as long as the detention is not improperly prolonged. 544
U.S. 93, 101 (2005). Again, time - not scope - is the only legally relevant issue. Thus, these cases
reject the Gonzalez approach.
But, you may be thinking, basic rules of federalism allow Illinois to go beyond the U.S. Supreme
Court in granting rights to its own citizens - especially members of minorities. True, but on remand
in Caballes the Illinois Supreme Court declared that ''lockstep'' meant that, except in extraordinary
cases, whatever the U.S. Supreme Court says about the Fourth Amendment also defines the rights of
Illinois citizens. People v. Caballes II, 221 Ill.2d 282, 335-336 (2006). In the words of the 2d District,
the Illinois Supreme Court in Caballes II simply ''acquiesced in the U.S. Supreme Court's ruling that,
if a traffic stop is proper, police action that does not unreasonably prolong the stop or
independently trigger the Fourth Amendment is permissible even if it goes beyond the scope of the
stop. The Illinois Supreme Court unmistakably, albeit not explicitly, abandoned the scope
requirement of the Gonzalez test.'' Starnes at 12.
In other words, both Gonzalez - and Starnes' claim - are dead.
The genius of the American federal system is that the U.S. Supreme Court's interpretation of the Bill
of Rights merely provides the floor below which no state may go in defining the rights of their
citizens. But states are always free to go beyond that to deal with local conditions. The sophisticated
analysis of Gonzalez was in response to a widespread perception that racial profiling was a distinct
problem here in Illinois. (See, e.g., D. Peter Wise, Operation Valkyrie: Illinois' Version of the Drug
Courier Profile, Illinois Attorneys for Criminal Justice Newsletter, Vol. 3 No.1, Winter, 1989). Yet the
Illinois Supreme Court's bumpkin-like, tunnel-vision reliance on ''lockstep'' resulted in the death of
its own carefully-crafted decision in Gonzalez, which was explicitly designed for Illinois' citizens especially its minority citizens affected by racial profiling.
Someday the Illinois Supreme Court will acknowledge the error of lockstep. But for now all Illinois
citizens - and especially minorities - should mourn the completely unnecessary death of the wise
rule set out in People v. Gonzalez.