Lead Opinion
OPINION
{1} Defendant Joshua Garcia appeals his convictions for possession of a controlled substance, contrary to NMSA 1978, Section 30-31-23(A) (1972, as amended through 2005), and resisting, evading, or obstructing an officer, contrary to NMSA 1978, Section 30-22-1(B) (1963, as amended through 1981). He maintains that the evidence obtained against him was the fruit of an unreasonable seizure. We granted certiorari to consider whether Defendant was seized under Article II, Section 10 of the New Mexico Constitution. After applying our interstitial analysis of the federal constitution and concluding that Defendant may not be protected under the Fourth Amendment, we hold that the standard for a seizure under Article II, Section 10 is whether a reasonable person would feel free to leave. Therefore, Defendant was seized when the officer stopped his patrol car in the intersection near where Defendant was walking, shone his spotlight on Defendant, and told him to stop. Because there was no reasonable suspicion to support seizing Defendant, the evidence obtained against him was the fruit of an unreasonable seizure under Article II, Section 10 and must be suppressed. We reverse.
I. BACKGROUND AND PROCEEDINGS BELOW
{2} The following account of the events on the evening of Defendant’s arrest comes from Officer Lyndell Stansell, Jr.’s narrative of his encounter with Defendant. Neither side contests the narrative; the facts are not in dispute and it contains the only evidence on point. On January 17, 2005, at approximately seven o’clock p.m., the officer was called to a “possible domestic in progress” at an address in Clovis. The dispatcher told the officer that the caller wished to have a man named Joshua Garcia removed from the residence. When the officer arrived at the intersection nearest the address, he saw Defendant walking across the street. There is no evidence that the officer had been acquainted with Defendant, had any prior contact with him, had received a description of him from dispatch, or knew by any other means that Defendant was the man to which the caller was referring.
{3} Immediately upon seeing Defendant, the officer stopped his patrol car in the intersection near Defendant, shone his spotlight on Defendant, exited the patrol ear, and “told [Defendant] to stop.” Defendant continued walking past the patrol car and the officer “again ordered” Defendant to stop walking. Defendant told the officer that he was “just going to [his] cousin’s house.” Defendant had his hands in his jacket pockets and was fumbling with something. The officer thought Defendant was about to run, so he shone his flashlight on him, tried to get in front of him, and “yelled at [him] again” to stop. Defendant kept on his way, still fumbling in his pockets.
{4} Fearing that Defendant had a weapon, the officer pulled out his gun and twice ordered Defendant to remove his hands from his pockets. Defendant did not take his hands out of his pockets and continued to try to walk around the officer. Because he continued to fear that Defendant had a weapon and because Defendant had not obeyed his orders, the officer “realized [he] was going to have to physically stop” Defendant.
{5} The officer sprayed Defendant with a one-second burst of pepper spray. Defendant turned to his right and kept walking, still with his hands in his pockets. As Defendant passed in front of a car, the officer saw something fall to the ground. The officer then tackled Defendant and handcuffed him.
{6} The item that fell to the ground appeared to be, and was subsequently confirmed to be, crack cocaine. Another officer searched Defendant incident to his arrest and found marijuana on his person.
{7} Defendant was charged with possession of cocaine, marijuana, and drug paraphernalia and resisting, evading or obstructing an officer. He moved to suppress any evidence obtained against him as the result of an illegal seizure under either the United States or New Mexico Constitutions. The district court denied the motion, apparently concluding that Defendant had been seized but that there was reasonable suspicion to support the seizure. The district court did not specify whether it considered the issue under both constitutions or the federal constitution alone. Defendant pled guilty to possession of a controlled substance and resisting, evading or obstructing an officer, but reserved his right to appeal the suppression ruling. In a published opinion, the Court of Appeals affirmed the district court on different grounds. See State v. Garcia,
{8} On appeal to this Court, Defendant argues that he was seized under Article II, Section 10 of the New Mexico Constitution and that the seizure was unlawful because the officer did not have reasonable suspicion to stop him. Therefore, Defendant argues, the cocaine that he dropped and the marijuana that was on his person were fruits of an illegal seizure and must be suppressed. We agree with Defendant and hold that he was seized under the New Mexico Constitution when the officer stopped his marked patrol car in the intersection near Defendant, shone his flashlight on him, and told him to stop. The officer did not have reasonable suspicion to seize Defendant, and the evidence obtained against him was therefore the fruit of an illegal seizure and must be suppressed.
II. DISCUSSION
A. STANDARD OF REVIEW
{9} The standard of review for suppression rulings is whether the law was correctly applied to the facts, viewing the facts in the manner most favorable to the prevailing party. State v. Jason L.,
B. PRESERVATION AND THE INTERSTITIAL APPROACH
{10} The State argues that Defendant did not preserve his state constitutional argument in accordance with Gomez,
{11} A close examination of the record reveals that whether Defendant was seized in the first instance was not a contentious issue before the district court. Rather, it appears that it was tacitly agreed that Defendant was seized at some point during his encounter with the officer. For example, the State’s response to Defendant’s motion to suppress did not argue that Defendant had not been seized, but rather spoke in terms of reasonable suspicion:
An officer’s reasonable belief that a suspect is armed and dangerous may follow from a reasonable suspicion that the suspect has committed, is committing, or will commit an ‘inherently dangerous crime.’ A domestic violence case is an inherently dangerous crime____ Consequently, the actions of [the officer] in this case were completely appropriate and led to admissible evidence against [Defendant].
Similarly, the argument at the hearing concerned not whether there was a seizure, but whether reasonable suspicion existed to seize Defendant. To that end, defense counsel stated, “The issue here, Judge, is whether the officer had an articulable suspicion that the person he saw walking across the street at 7 p.m. was committing any crime.”
{12} It was not until the case reached the Court of Appeals that the issue of whether there had been a seizure became contentious. See Garcia,
{13} However, before we can reach that claim, our interstitial approach to state constitutional interpretation mandates that we consider whether Defendant was protected under the federal constitution. In Gomez,
C. THE FOURTH AMENDMENT
{14} We believe that in light of recent changes in Fourth Amendment jurisprudence, there is serious uncertainty as to whether the Fourth Amendment protects Defendant by mandating the suppression of the cocaine and marijuana. Although it is clear that evidence that is tainted by an illegal seizure must be suppressed, see Wong Sun v. United States,
{15} Hodari D. marked a shift in the Supreme Court’s search and seizure jurisprudence. Decades before Hodari D., in Terry v. Ohio, the United States Supreme Court held that a seizure occurs under the Fourth Amendment when a police officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen....”
{16} In Hodari D., two officers in an unmarked car were on patrol late one evening when they came around a corner and saw a group of youths, which included the defendant, huddled together. Id. at 622,
{17} The defendant in Hodari D. moved to suppress the crack as the fruit of an illegal seizure under the Fourth Amendment but was denied by the district court. Id. The California Court of Appeals reversed, holding that, under Mendenhall, the defendant had been seized at the moment that he saw the officer running toward him, the seizure was unreasonable under the Fourth Amendment, and the crack was the fruit of the illegal seizure. Id. The United States Supreme Court reversed and held that, for the purposes of the Fourth Amendment, a seizure requires either physical force or submission to an assertion of authority. Id. at 626,
{18} Though Hodari D. presented an instance of assertion of authority, the Court also discussed, in dicta, what it took to be the standard for seizure by physical force:
To constitute an arrest ... the quintessential seizure of a person under our Fourth Amendment jurisprudence — the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient____
Id. at 625,
To say that an arrest is effected by the slightest application of physical force, despite the arrestee’s escape, is not to say that for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity. If, for example, [the officer] had laid his hands upon Hodari to arrest him, but Hodari had broken away and had then cast away the cocaine, it would hardly be realistic to say that that disclosure had been made during the course of an arrest.
Id.
{19} Applying Hodari D. to the instant case, our Court of Appeals held that Defendant was not seized and that, even if the officer had seized Defendant by pepper spraying him, the drugs were not suppressible because the seizure ended before Defendant dropped the cocaine. See Garcia,
{20} The Court of Appeals concluded that Defendant had not been seized under the Fourth Amendment because “there [was] no indication that Defendant was affected or even deterred to the slightest degree from his voluntary actions” by the pepper spray. Id. ¶ 23. We disagree. To ascertain whether the officer’s application of pepper spray to Defendant’s body was physical force sufficient to constitute a seizure, it is irrelevant whether Defendant’s movement was restrained, affected, or deterred. Unlike assertion-of-authority cases, there is no need for a defendant to demonstrate submission in eases of physical force. See, e.g., Carr v. Tatangelo,
{21} Since Defendant established that he was seized by virtue of the pepper spray, the next issue is the effect of the Hodari D. language quoted above that advises that a Fourth Amendment seizure ends when the suspect escapes or breaks away from the police. The Court of Appeals evidently drew two conclusions from this passage: first, that a seizure effected by physical force is terminated the moment physical contact is broken; and second, that if the suspect is not seized at the moment that he or she discloses the evidence, such evidence may not be suppressed as the fruit of the illegal seizure. See Garcia,
{22} First, we cannot agree that under the Fourth Amendment Defendant’s seizure ended the moment the officer stopped spraying him with mace. The Hodari D. Court’s hypothetical example of a discontinued seizure seems to contemplate something more than the limited motion that Defendant took away from the officer in the present case.
{23} Our second disagreement with the Court of Appeals concerns whether, if the cocaine was dropped after Defendant’s seizure had terminated, it should nevertheless be suppressed. As we previously noted, the Supreme Court in Hodari D. wrote:
If, for example, [the officer] had laid his hands upon Hodari to arrest him, but Hodari had broken away and had then cast away the cocaine, it would hardly be realistic to say that that disclosiure had been made during the course of an arrest.
{24} In the case at bar, where only several strides on Defendant’s part intervened between the officer’s pepper spraying of Defendant and the dropping of the cocaine, we do not believe the link to the illegal seizure was attenuated, if indeed that seizure had ended at all. Further, because the exclusionary rule is designed to deter unlawful police conduct, such as the unconstitutional application of physical force resulting in the discovery of evidence, we believe the policies of the fruit of the poisonous tree doctrine weigh heavily in favor of suppression. We note that other courts confronting similar situations have excluded evidence on this basis. See e.g., United States v. Wilson,
{25} In light of the foregoing, there is serious uncertainty regarding whether the United States Supreme Court would suppress the evidence in this ease under the Fourth Amendment’s protections against unreasonable searches and seizures. Because, under our interstitial analysis, we will consider preserved state constitutional claims if the defendant is not protected under the federal constitution, we now proceed to determine whether the evidence against Defendant was unlawfully acquired as the fruit of an unreasonable seizure under Article II, Section 10. See State v. Paul T.,
D. ARTICLE II, SECTION 10
1. AN INDIVIDUAL IS SEIZED UNDER ARTICLE II, SECTION 10 WHEN A REASONABLE PERSON WOULD NOT FEEL FREE TO LEAVE
{26} In analyzing whether Defendant was seized at or before the time that the police obtained the evidence against him, we must address the proper measure of a seizure under the New Mexico Constitution. We are faced with the question of whether we will follow the United States Supreme Court’s lead in modifying Mendenhall’s reasonable person standard as articulated in Hodari D. or whether, consonant with our power as a sovereign state to interpret our own constitution, we will recognize broader protection under Article II, Section 10.
{27} Under our interstitial approach to interpreting the New Mexico Constitution, we may diverge from federal precedent where the federal analysis is flawed, where there are structural differences between the state and federal governments, or because of distinctive New Mexico characteristics. Gomez,
{28} In the seminal opinion of State v. Cordova, this Court diverged from Fourth Amendment jurisprudence for the first time on the basis of the distinct character and nature of Article II, Section 10.
{29} Likewise, in State v. Gutierrez, we rejected the good faith exception to the warrant requirement as “incompatible with the guarantees of the New Mexico Constitution. ...”
{30} The distinct and strong New Mexico protection from unreasonable search and seizure is apparent in various other applications. See, e.g., Gomez,
{31} As the above cases demonstrate, Article II, Section 10 is calibrated slightly differently than the Fourth Amendment. It is a foundation of both personal privacy and the integrity of the criminal justice system, as well as the ultimate regulator of police conduct. While all three of these purposes overlap and intertwine, it is the regulation of police conduct with which the instant case is most concerned. We must thus ask whether adopting Hodari D. under Article II, Section 10 will serve the robust character and honored history of that constitutional provision with special attention to its purpose of police regulation. Cf. Gutierrez,
{32} Rather than maintaining Mendenhall’s focus on the nature of police conduct, Hodari D. makes the applicability of the Fourth Amendment contingent upon the suspect’s reaction. As a result, a suspect submitting to an officer’s assertion of authority will be seized at the time of the assertion, where a non-submitting suspect will not be seized until there is either physical force or subsequent submission to the assertion. Thus, Hodari D. defines the nature of the government action, i.e. whether a police action is a seizure or not, only in relation to the subjective reaction of the suspect. This indeterminacy is eause for concern in that it fails to provide law enforcement with a useful framework with which to predict when its actions will trigger constitutional scrutiny. Cf. Chesternut,
{33} As Defendant points out, numerous states have rejected Hodari D. as inconsistent with their state constitutions. See, e.g., Joseph v. State,
{34} We agree with the other states that Hodari D.’s modification of the reasonable person standard weakens the right to be secure from unreasonable searches and seizures beyond a point which may be countenanced under our state constitution. If the right to be free from unreasonable searches and seizures is to include the “right to be let alone,” see Olmstead v. United States,
{35} Hodari D. is discordant with Article II, Section 10’s robust protection against police misconduct and its protection of personal privacy and the integrity of the criminal justice system. We therefore reject Hodari D. and instead maintain Mendenhall’s free-to-leave test as the proper measure of a seizure under Article II, Section 10.
2. DEFENDANT WAS SEIZED UNDER ARTICLE II, SECTION 10 OF THE NEW MEXICO CONSTITUTION
{36} Having clarified that a seizure occurs under Article II, Section 10 with reference only to Mendenhall’s reasonable person standard, we now apply that standard to the case at bar to determine whether and at what point Defendant was placed in such a position.
{37} “[A] person has been ‘seized’ ... only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall,
{38} An otherwise consensual encounter becomes a seizure under the reasonable person standard when an officer “engages] in conduct significantly beyond that accepted in social intercourse.” 4 LaFave, supra, § 9.4(a), at 425 (footnote omitted).
“The critical factor is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens.” Id. at 425-26 (footnotes omitted).
{39} Possible indicators of a seizure are: “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Lopez,
{40} To determine whether a reasonable person would feel free to leave, our courts examine “(1) the conduct of the police, (2) the person of the individual citizen, and (3) the physical surroundings of the eneounter.” Jason L.,
{41} Immediately upon seeing Defendant walking across the street, the officer stopped his marked car in the intersection within close proximity to Defendant and shone his spotlight on him. He then “told,” “ordered,” or “yelled at” Defendant to stop, in a manner clearly indicating that compliance was required. See id. ¶ 14. A reasonable person would not have felt free to terminate the encounter and walk away. To be sure, when Defendant attempted to walk away, the officer pursued him and incrementally escalated the intrusion as Defendant declined to engage. While the officer’s conduct grew more and more coercive, even his initial actions demonstrated accosting and restraint. See Lopez,
3. THERE WAS NO REASONABLE SUSPICION TO SEIZE DEFENDANT
{42} Having held that Defendant was seized under Article II, Section 10 when the officer stopped his marked car in the intersection near him, shone his spotlight on him, and told him to stop, we must next consider whether the officer had reasonable suspicion to seize Defendant at that time.
{43} “Investigatory detention is permissible when there is a reasonable and articulable suspicion that the law is being or has been broken.” Jason L.,
{44} As outlined above, Defendant was seized under Article II, Section 10 when the officer stopped his marked patrol car in the intersection where Defendant was walking, shone his spotlight on him, and told or ordered him to stop. The officer presumably focused on Defendant because of his knowledge of the “possible domestic in progress” and the caller’s desire to have a man named Joshua Garcia removed from his or her residence, as well as Defendant’s proximity to the residence in question. However, seizing Defendant because he was near the address where the yet-uninvestigated “possible domestic” had occurred was unreasonable because the officer had no articulable, particularized suspicion that Defendant was breaking or had broken the law. See id.; cf. State v. Cobbs,
{45} First, the officer had no information that a crime had been or was being committed: while the caller’s desire to have a man named Joshua Garcia removed from his or her residence may have been the result of Joshua Garcia perpetrating some crime, the officer had no knowledge of such crime. Mere speculation that Joshua Garcia may have committed an unspecified crime does not satisfy the constitutional requirement of reasonable suspicion. While an officer may still form reasonable suspicion without knowing, with some degree of certainty, that a crime had occurred, the facts in the present case indicate that the officer did not have enough information to conclude that Defendant was involved in the possible domestic disturbance.
{46} Further, even had the officer known that a crime had been committed, the fact that Defendant was merely walking in the vicinity was not necessarily sufficient to support a reasonable suspicion that Defendant was the responsible party. The officer did not have a description of Joshua Garcia and had no prior contact with him or any other means to independently establish that Defendant was Joshua Garcia. As a result, the officer did not observe Defendant on the property of the address to which the officer was called; he was merely on the same block. It was seven o’clock p.m., not an unusual time for people to be walking in the streets. The connection between Defendant and any crime that may have been in progress was too attenuated to constitute reasonable suspicion.
III. CONCLUSION
{47} For the foregoing reasons, we hold that Defendant was seized under Article II, Section 10 when the officer stopped his patrol car in the intersection near where Defendant was walking, shone his spotlight on him, and told him to stop. The seizure was not supported by reasonable suspicion. The evidence against Defendant flowed from the seizure and must be suppressed under Article II, Section 10. We reverse.
{48} IT IS SO ORDERED.
Notes
. We denied certiorari on the question of whether the Fourth Amendment of the United States Constitution protects Defendant. However, in this opinion, we do consider the protection provided to Defendant under the federal constitution because, as we discuss below, this preliminary step is mandated under the interstitial approach to state constitutional interpretation propounded in State v. Gomez,
. By our holding that Defendant was seized, we do not mean to suggest that it was unjustified for the officer to attempt to speak with Defendant to inquire into any connection he may have had to the residence or the domestic incident. See Mendenhall,
Concurrence Opinion
(specially concurring).
{49} I concur in the opinion of the majority. I write separately solely on the issue of preservation.
{50} In addressing any claim under our state Constitution, the threshold issue is always preservation. Given the unusual posture of this particular case, I agree with the majority that Defendant need not have preserved such a claim at the trial level. However, the Court of Appeals took a different view, and held that Defendant did not do enough to preserve his state constitutional argument. For its part, the State spent much of its brief arguing that Defendant did not preserve his argument in accordance with State v. Gomez,
{51} In Gomez, this Court set forth a bifurcated framework — now familiar to us all — for preservation of a state constitutional claim with a federal analog.
{52} In our state jurisprudence, a plethora of precedent already interprets Article II, Section 10 more expansively than the Fourth Amendment. See, e.g., Gomez,
{53} Defendant asserted the constitutional principle at issue when he moved to suppress all evidence seized and cited specifically to both the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution. Defendant also showed the factual basis for his claim: the officer’s narrative was in evidence before the trial court. Thus, Defendant satisfied both of the Gomez criteria: he specifically invoked the state constitutional provision at issue and showed the factual basis for his claim. Because our more expansive interpretation of search and seizure under the state Constitution is well-known, then under Gomez Defendant need not have done more to preserve his claim.
{54} However, both the State and our Court of Appeals disagree, reading Gomez too narrowly, in my view. Rather than looking at the relevant constitutional provision, as mandated by Gomez, they focus on the particular claim or principle asserted by Defendant. For example, in framing the issue, the Court of Appeals stated that “[o]ur courts have not yet decided whether our state constitution affords greater protection than the Fourth Amendment in determining when a person who does not comply with police orders is seized.” State v. Garcia,
{55} The reading given Gomez by the State and the Court of Appeals is unnecessarily restrictive. In practical effect, it could require litigants to meet the higher Gomez burden each time a new argument or fact pattern under search and seizure is brought before a state court. The party would have to remind the court that Article II, Section 10 is interpreted more expansively and provide reasons for the court to do so. This is unduly burdensome in the context of search and seizure, and for the reasons that follow, unnecessary. That reading also conflicts with at least some of our precedent which, admittedly, is at times inconsistent. See State v. Cardenas-Alvarez,
{56} I recognize this is not the only way to interpret Gomez, and Gomez itself is capable of more than one meaning on this subject. Perhaps it is time for a new look. After all, Gomez is not inscribed in granite; it is not part of the state Constitution. It is merely a means to an end. In its text, Gomez overturned a prior iteration of preservation under the state Constitution on which the Court of Appeals had correctly relied when it rejected the search and seizure argument for lack of preservation. See State v. Sutton,
{57} To begin the analysis of the State’s position, it is worth noting what should be obvious to everyone. We cannot allow the development of our state Constitution to be retarded by overly burdensome, hyper-technical, and impractical preservation requirements. As New Mexico’s highest court, it is our duty and privilege to interpret and develop the New Mexico Constitution. In a government of dual sovereigns, it is imperative that our state Constitution develop to its full potential and protect the rights of our citizens where we deem federal law lacking. Cf. Granville,
{58} Further, nearly twenty years have passed since we first breathed independent life into Article II, Section 10 in State v. Cordova, and many similar holdings have followed in its wake.
{59} For example, in this case, Defendant’s motion to suppress invoked Article II, Section 10 without elaboration. Reading the motion, a trial court should be aware that defense counsel has in mind a separate argument under a provision of the state Constitution that often, but not always, is asserted more expansively than its federal equivalent. For what other purpose would one assert Article II, Section 10 than to tell the court, in a kind of litigator’s shorthand, that, “[i]f my Fourth Amendment argument does not persuade you, then let’s move on to the state constitution and its added protections for the rights of my client?”
{60} What is not clear from the bare motion to suppress is the specific ground or argument; in this case, the reasoning of Hodari D. and why we should break with that case under our state Constitution. Clearly, the better practice is for an attorney to make a specific argument to buttress a claim under the state Constitution. In a case like ours, for example, if Hodari D. were the obstacle under the Fourth Amendment, then a sound argument from defense counsel would explain the shortcomings of that opinion and why the principles that animate our state Constitution lead to a better result. A good attorney would never leave that argument to chance.
{61} However, the harsh reality of trial practice does not make it practicable in every case for counsel to be so thorough. This Court has seen far too many instances in which trial counsel simply overlooked the need for argument to explain the theory of the case. Yet, preservation has never been synonymous with the higher standard of best practices in the profession. I cannot say it better than Gomez,
Although we expect trial counsel to be well-advised of state constitutional law on a particular subject affecting his or her client’s interests, we also recognize that the arguments a trial lawyer reasonably can be expected to articulate on an issue arising in the heat of trial are far different from what an appellate lawyer may develop after reflection, research, and substantial briefing. It is impractical to require trial counsel to develop the arguments, articulate rationale, and cite authorities that may appear in an appellate brief.
In other words, on the appellate bench, we get to review in the cool of the night what trial counsel and the trial court must do in the heat of the day.
{62} It does not seem fair to place the burden entirely upon the shoulders of overburdened trial counsel. Under these circumstances, it would not ask too much of the trial court to inquire of counsel the nature of the argument asserted under Article II, Section 10. If, for example, Hodari D. were the problem for Defendant, then the court could ask counsel directly to explain why that case should not be followed under Article II, Section 10. This would not take much effort. We recently wrote extensively about Hodari D. and the Fourth Amendment, while simultaneously flagging our own concern about “the possibility that Article II, Section 10 may require different standards than those set forth in ... Hodari D.” State v. Harbison,
{63} Finally, preservation is not an end in itself, but a means to a fair outcome. In the absence of manifest unfairness to either side, such as an incomplete factual record, citation of Article II, Section 10 in a search and seizure case should suffice; it should alert the trial court to the need to address both the state and the federal constitutions before it rejects a motion to suppress. And even if the court is not alerted, of what real import is that to the resolution of a pure question of law? The factual record here is not subject to any material dispute. This Court can decide the Hodari D. issue whether or not the trial court addressed it. While in a perfect world the trial court should address each issue first, that aspiration should not be determinative. The statewide interest in development of our state Constitution tips the balance in favor of proceeding, and we should not hesitate to do so.