B. Conforming to Binding Supreme Court
2. Conceptually-Based Conformity
FLORIDA'S "FORCED LINKAGE"
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In 1967, however, the Supreme Court decided Katz v. United
States51 Katz rejected the trespass theory of the fourth amendmentand adopted instead what has since become known as the reasonable expectation of privacy test for assessing the scope of the amendment.,
2The Court thus explicitly overturned Olmstead.
-But it left On Lee and Lopez untouched.3 Suppose a Florida court, obligated by article I, section 12 to follow Supreme Court decisions on the fourth amend- ment, were faced with a body bug case, and that On Lee, Lopez, and
Katz were the only relevant Supreme Court decisions.Should the court follow the result in On Lee and Lopez? Or would it be permissible to rely on the reasonable expectation of privacy theory advanced in
Katz and find that using body bugs without a warrant violates thefourth amendment because one does not reasonably expect that an unseen eavesdropper will use an electronic device to monitor one's private conversations?8
A Florida court placed in this dilemma must follow On Lee and
Lopez, despite the conceptual flux in the law. The definition of searchfound in Katz and progeny is a holding and governs the inquiry.
But relying on that definition to require a warrant before wiring an informant for sound would result in a disavowal of established, even though perhaps partially discredited, Supreme Court precedent.-
381. 389 U.S. 347 (1967).
382. Although the expectation of privacy language appeared only in Justice Harlan's concurr- ence, id. at 361 (Harlan, J., concurring), a majority of the Court soon adopted it as the standard for determining whether a search had occurred. See, e.g., United States v. Dionisio, 410 U.S.
1, 14 (1973); United States v. White, 401 U.S. 745, 752 (1971); Mancusi v. DeForte, 392 U.S.
364, 369 (1968); see also Smith v. Maryland, 442 U.S. 735, 740-41 (1979) (elaborating on Justice Harlan's reasonable expectation of privacy test).
383. 389 U.S. at 353.
384. As Justice White noted in his concurring opinion in Katz, On Lee and Lopez were
"undisturbed by today's decision." 389 U.S. at 363 n.** (White, J., concurring).
385. After Katz, the Supreme Court upheld On Lee and Lopez under the new reasonable expectation of privacy analysis. See United States v. Caceres, 440 U.S. 741 (1979); United States v. White, 401 U.S. 745 (1971) (plurality).
386. The Florida Supreme Court followed this latter rationale in State v. Sarmiento, 397 So. 2d 643, 645 (Fla. 1981) ('To assume the risk that one who participates in a conversation held in the home might later reveal the contents of that conversation is one thing, but to assume the risk that uninvited and unknown eavesdroppers might clandestinely participate in the con-
versation and later reveal its contents is another ... .
387. See supra note 382.
388. Indeed, the Court eventually made clear that Katz did not disturb its ruling in Oil Lee and Lopez. See supra note 385.
[Vol. 39
FLORIDA'S "FORCED LINKAGE"
While this type of conformity analysis results in the retention of a crime control holding, it might result in retention of a defense- oriented holding as well. For instance, although it reconceptualized the standing inquiry, Rakas did not overturn any of the Court's earlier cases on standing.' One of these earlier cases is Jeffers v. United States,39" in which the Court found that a defendant who possessed a key to the searched apartment and enjoyed occasional access to it had standing to contest seizure of contraband from that apartment. Florida courts are bound to reach the same result on similar facts, even though it could easily be argued that one does not possess a legitimate expec- tation of privacy in an apartment one does not occupy and only occa- sionally visits 91
The one caveat to the conclusion that factual conformity should be preferred over conceptual conformity occurs when Supreme Court precedent is so weakened by subsequent Supreme Court deliberations on related matters that the precedent has been implicitly overruled.3s In this situation, the goals of stare decisis are best served by following the more recent Supreme Court decisions. But, as many commentators have pointed out, a determination that a Supreme Court decision has been implicitly overruled by subsequent decisions should be extremely rare.3 93 This resistance to a broad doctrine of implicit overruling is particularly appropriate where, as in Florida, the lower court is under a constitutional mandate to follow Supreme Court decisionsA 4 It also
389. The Court stated that "[w]e can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that [the standing inquiry] is more properly subsumed under substantive Fourth Amendment doctrine." 439 U.S. at 139-40.
390. 342 U.S. 48 (1951).
391. Indeed, one Florida court appears to have improperly accepted this argument. See State v. Mallory, 409 So. 2d 1222 (Fla. 2d D.C.A. 1982) (defendant had no standing with respect to premises in which he kept personal belongings, occasionally stayed, and had freedom of ingress).
392. See Note, supra note 244, at 91-93 (discussion of the implicit overrule doctrine).
393. Id. at 92 n.23 (canvassing various standards adopted by courts or suggested by com- mentators, ranging from "near certainty" that- Supreme Court has overruled precedent to a
"rebuttable presumption" that precedent continues to be valid). See also Note, Lower Court Disavowal of Suprefme Court Precedent, 60 VA. L. REV. 494, 501 (1974) (lower court disavowal of Supreme Court precedent most appropriate "when it appears to a certainty that subsequent Supreme Court decisions in an area have rendered a precedent obsolete, so that the precedent serves only to confuse unwary litigants or judges").
394. See FLA. CONST. art. I, § 12. The question remains how Florida courts should respond to the situation described in the text. One commentator suggests a test that would allow a finding of implicit overrule if the lower court is "reasonably certain" the precedent has been overruled. See Note, supra note 244, at 92 n.23. This test he considers "high enough to give effect to the notion that the Supreme Court should make its intention to devitalize a precedent clear and unequivocal [and to support] the notion that lower courts should have good reason to disregard on point Supreme Court precedent." Id.
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