In a case where being polite and cooperating with police quickly turned into commands that a reasonable person would not have felt were optional so that they could leave, the Arizona Supreme Court said that in order to conduct a frisk of a person, “officers must reasonably suspect both that criminal activity is afoot and that the suspect is armed and dangerous.”
The case stems from a stop where multiple officers approached a man who was on the street having a conversation with a woman. They admit that he was polite to them and cooperating fully, and prosecutors apparently tried argued that such polite behavior at the beginning of a stop is a sign of consent to a later search. One of the officers spotted a bulge on the waistband and asked if the man was carrying a firearm. The man admitted that he was, and that’s when officers started commanding him to put his hands on his head, disarmed him, and then later arrested him once they found out he had a prior felony. (The article doesn’t say what that prior record was about.) The Court said that the stop was illegal and therefore they threw out the conviction for being a felon in possession.
Gun issues aside, I’m quite impressed with this quote from the opinion in the article where the Court’s decision said, “police interactions with members of the public are inherently fluid, and what begins as a consensual encounter can evolve into a seizure that prompts Fourth Amendment scrutiny.”
20 thoughts on “Fourth Amendment Protections Taken Seriously in Arizona”
Hunh – they didn’t try and say it was a Terry search?
The definition laid out by the Court IS the requirement for a Terry stop and frisk. An officer, under Terry, must first have a reasonable suspicion based upon articulable facts that a crime has been, is being, or is about to be committed. Then, if they can articulate some reason to believe that the individual is a threat, they may frisk – i.e. pat down – a person for weapons. This is not the same as a full-blown search of a person as would follow an arrest, though some officers have a hard time understanding the difference.
See Terry v. Ohio, 392 U.S. 1.
In short, the Arizona court has not broken new ground, it simply has applied what is already established law. What is depressing is that we find it remarkable that the Arizona court actually followed the Constitution as interpreted and applied by the SCOTUS.
Once again, I feel the need to point out that there is absolutely no benefit to interacting with the police. There are no positive outcomes to it, only neutral and negative. At the end of the interaction the best case scenario is you go about your business, free and uencumbered just as you were before. The worst case scenario is you end up with the life beaten out of you or an acute case of lead poisoning…
Indeed. I would hope, however, if one was a witness to a significant crime, one would have the common decency to be a good witness and report what one saw. Aside from that, I advise being polite, and declining to answer any questions.
Given past performance, I wouldn’t even be a good witness to the feds – who knows if they’ll decide to come after you for misleading statements judged after the fact and without a written record. They can submit requests in writing to my lawyer and expect answers back in the same fashion.
Exactly. Half the people in prison for white collar crimes got there because they told the investigators something that turned out to be not quite true, or at least not quite true enough for the investigators liking, whether it was intentional or not.
Our brains tend to fill in details that we didn’t necessarily see. If it turns out your brain filled in something incorrectly and you tell the investigator, you might go to jail. They can investigate all they want but they can do it without me.
Which is, overall, a loss to society. Great Job, FBI!
this goes for all badge carriers, not just feds. Avoid all interaction possible. The focus of a cop is not to help the public, but to look for ANY reason to toss you into “the system”, for the most part. The change from “peace officer” to “law enforcement” was a 180* change in perception. It was not a good one.
Witness? Good luck.
Here in CA, the judge will toss your ass in jail, if you decline to follow the needs of the DA. The gangs will threaten you and your family if they find out you are a witness, and the court system WILL tell them exactly who you are, and where you live. And, since the so called “justice system” works so slowly, they have a lot of time to cause you trouble.
Want to get a CCW permit to protect you from them? HAH! You are SOL there. Got family? Best be deaf and blind, for their benefit.
The socialists have created the conditions that greatly deter any enthusiasm for helping the courts, because they don’t care if you get ground up in the works. When the court system doesn’t care about collateral damage from the turning of the gears, a culture/nation is typically on the path to doom. Just a matter of time.
There’s a fair bit of evidence that by the early 60s, the Soviet economy was dependent on the gulag system and the work it did via forced labor, to the point that they had to continually find more and more people to toss in there, given that they were working inmates to death at a rapid clip.
I’ve often wondered if we’re not seeing the same thing in the US, with the billions upon billions of dollars pumped into law enforcement, overcriminalization of everything and the rise of privately run prisons.
A KGB agent was once quotedd as saying “Show me the man and I’ll find the crime if I look long enough.” Police in the US can basically do the same thing now…
That is an impressive quote when compared to the one of several years ago, and I am paraphrasing because I’m too lazy to look it up, “running from the cops in some neighborhoods is not a sign of criminal guilt.”
And I want to add that “such polite behavior at the beginning of a stop is a sign of consent to a later search,” is exceptionally bizarre. Imagine if that were applied to rape consent cases.
In Florida, the courts recently ruled that a person who is found to be carrying a gun can be arrested and charged with carrying a concealed weapon. The fact that the defendant presented a concealed weapons a permit to the officer is an affirmative defense that can be raised at trial, but not a bar to arrest or indictment.
That kind of scenario is one of the problems with “affirmative defense” statutes, as opposed to clearly-stated exceptions to the law.
The difference goes like this: A behavior (say, carrying a gun in public) is listed as a crime. If the statute lists exceptions, it has a sub-section that basically says, “This statute does not apply to the following…” (say, uniformed and undercover peace officers, CCW-permit holders, people carrying unconcealed guns [if you’re in an open-carry city/county/state], and DFW employees in the course of their duties). There’s no defense required, because the statute itself explicitly says it doesn’t apply.
“Affirmative defense,” on the other hand, means you get arrested (say again, for carrying a gun in public), but if/when you present your CCW permit before the court, the court must find you not guilty. You still have to appear, which means taking time from work, and the arrest and charge might still appear on your record.
Plenty of cops will treat them the same – little point arresting someone who will invariably be found innocent – but there’s always the chance of a dick-ish one who will go by the letter of the law just because they can.
Contempt of Cop wouldn’t be a phrase if the cops couldn’t find some reason to arrest you on the spur of the moment. That doesn’t mean we should let them have more openings
I am not sure how I feel about a ruling that makes it easier for criminals to carry firearms. I appreciate the constitutional protection for myself, of course, but I also support the rule of law.
I think erring on the side of freedom is always preferred, I also think that if someone has paid their debt to society for a crime they should get all their rights restored when they are released, if they are so dangerous that we cannot trust them with full rights then they should never be released from prison in the first place.
Good points. Perhaps not ideal, but certainly better than current practices.
@F G K,
Restrictions on police power are an integral *part* of the rule of law. An officer who disregards those limits is flouting the law, not enforcing it.
Currently trapped in Commiefornia. Looking to change state of residence and escape the gun-grabbing clutches of the Democratic Party overlords. This story makes Arizona look even more attractive than it was before.
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