A frisk in the context of a law enforcement search is also known as a pat-down.

It is less intrusive than a full body search. The purpose of a frisk is to ensure an officer’s safety by confirming that a suspect encountered by police is not armed and dangerous.

The Cornell University of Law Legal Information Institute (LII) defines a pat-down search as one in which police pat-down a person’s outer clothing to search for concealed weapons.

When is a Police Frisk Constitutional?

Individuals are protected under the 4^th Amendment of the U.S. Constitution against unlawful search and seizures. This applies to frisk searches by police.

Both State (Arizona V. Serna, 2014) and Federal Courts (Terry v. Ohio, 1968) have held that in order for a frisk to be constitutional a two prong test must be met. Police can legally frisk a person they encounter when the following factors exist:

1. Police have a reasonable suspicion that a person is engaged in criminal activity; and
2. Police have a reasonable belief that the person is armed and dangerous.

Reasonable suspicion must be based on facts that are individualized, objective, and can be clearly articulated. Police need more than just a hunch or a guess that a person is engaged, or about to commit a crime.

Reasonable suspicion requires less proof than probable cause, the standard that must be met in order to arrest someone.

Courts have consistently held that when determining whether or not police have reasonable suspicion of criminal activity, that totality of the circumstances surrounding the incident must be considered.

Can Police Frisk Me Because I live in a High-Crime Neighborhood?

No. Arizona police cannot frisk you on the sole basis that they encountered you in a high-crime area. More factors would need to exist to give rise to reasonable suspicion of criminal conduct, and to justify a frisk search. The factors that create reasonable suspicion should be particular to the individual and within that person’s control. The general surroundings or environment would not within your control, or particular to your conduct.

Overview of Arizona Supreme Court Opinion

The Arizona Supreme Court recently ruled on a case in which they considered factors that create reasonable suspicion needed to justify a frisk.

The case began when five police officers approached 4 men talking outside an apartment complex. The building was located in a high-crime neighborhood.

Officers went there looking for a suspect who had an outstanding arrest warrant and was believed to be selling weapons. None of the 4 men the police encountered at the apartments were the suspect that police were looking for.

Police noted that surveillance cameras were being used outside the complex.

Two police officers approached the men that were gathered there and identified themselves as police.

Police noticed that one of the men seemed nervous and when officers approached the man ran away. The other officers chased him, while the three others stayed, one of which was the defendant.

Police noted that the defendant did not appear nervous or to have a weapon. As the officers engaged the men, the defendant remained seated calmly, holding a baby on his lap.

Police then announced that they would be conducting frisk search on all three of them that remained. Before the officers began, one of the men handed over a baggie of marijuana to the police. The officers then proceeded with the pat-down searches of which no weapons were found.

During the pat-down search, the officer found marijuana in the defendant’s pocket. Subsequently, the defendant was charged with illegal possession of marijuana.

The defendant moved to suppress the evidence, arguing that the marijuana was discovered as a result of an unlawful search.

The trial court ruled that police had reasonable suspicion of a crime in progress. It reasoned that the frisk was justified based on the following facts: When police approached one man fled; Police were at that location to arrest someone with a warrant; The apartment complex was located in a high-crime neighborhood; The two officers felt outnumbered against the three men who remained.

The trial court denied the defendant’s motion to suppress, and the defendant was consequently found him guilty of illegal marijuana possession.

The Arizona Court of Appeals affirmed the conviction. In reviewing legality of the frisk, the Court considered factors police believed created reasonable suspicion, and whether or not the circumstances would reasonably compel an officer to believe the men were armed and dangerous.

The Appeals Court court found that the companion who fled might justify a protective stop and frisk, even if there was no particularized reasonable suspicion the defendant had committed a crime.

The Arizona Supreme Court granted review on appeal. It emphasized that reasonable suspicion must be based on particular, individualized, and objective facts. The prosecution agreed that there was nothing that the defendant did that created reasonable suspicion of his own involvement in a crime, or that he was armed.

The Court reasoned that the defendant didn’t react in a suspicious way to the officers as they approached the men, and he was cooperative. The Arizona Supreme Court also noted the trial court’s reliance on the 5 circumstances used as a basis in for which officers made their decision to frisk. In summary they included: The fact that one of the men fled the scene when officers approached; The initial reason they went to the apartment complex which was to find a suspect with an outstanding arrest warrant; The location of the apartment buildings which were in a high crime areas; The number of men gathered in front of the buildings compared to officers; The presence of surveillance cameras monitoring the exterior of the apartment complex.

The AZ Supreme Court agreed that there had been a showing of the presence of these circumstances. However, the Court noted that the defendant had no control of any of them. Further, the Court reasoned that there was no showing by the state that the defendant himself was engaged in a crime, or that he was armed and dangerous.

The Court explained that the facts didn’t create an individualized and particular basis for a reasonable suspicion which is necessary to justify a pat-down for weapons.

The Court did recognize the relevancy of considering the factor of a high-crime neighborhood when a person is actually suspected of criminal conduct, and of being armed and dangerous.

In conclusion, the court found that when a person is encountered in a high-crime area, it does not alone provide justification for a frisk search. The Arizona Supreme Court reversed the conviction and decisions by the lower courts.

Impact of Opinion in Arizona

Arizona Supreme Court decisions have the potential to influence future decisions because they become case law.

This is particularly true when the issues involve constitutional rights violations such as that of unlawful search and seizures.

The Arizona Supreme Court provided clarity to what factors create reasonable suspicion, and justification of a frisk search by police.

The Court concluded that police are not justified in frisking someone merely because they encounter them in a high-crime area.

The court held that reasonable suspicion exists must be based on objective, and individualized conduct by the suspect, and not by another’s actions, unless the defendant’s conduct has also raised reasonable suspicion.

If you are stopped by police in Arizona, it is unlawful for you to be subjected to a frisk simply because of their surroundings, or because of factors involving another person.

How a Criminal Defense Attorney Can Help You Resolve Your Charges in Mesa AZ

If you are charged with a marijuana crime, weapons offense, DUI or any other crime Arizona you will need an experienced criminal defense attorney to represent you.

In the case reviewed here, the defense moved to suppress evidence obtained unlawfully. When the court agrees to suppress material evidence that the prosecution plans to use against you, it often leads to a dismissal of charges.

Defenses may exist that if applied can lead to a favorable outcome and resolution of your charges.

This is just one of many types of defenses that can be used to challenge criminal or DUI charges.

The defenses used should be uniquely tailored and effectively presented as they apply to the circumstances in your case.

If retained, Mr. Novak will represent you effectively in your charges. He will evaluate the charges, and evidence to determine the best defense strategy in your case.

Early retention of a proactive criminal defense attorney will enable you to preserve your rights, and your defenses. It is the first step to gaining control over your situation and moving towards a resolution of the charges.

James Novak, of the Law Office of James Novak exclusively defends individuals charged with a crime in Maricopa County. James Novak is former Maricopa County Prosecutor, with strong litigation skill and over 20 years of experience in DUI & Criminal Law.

James Novak offers a free initial consultation for those facing active DUI or criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

Call (480) 413-1499 or contact the Law Office of James Novak today to discuss your matter and options for defending your charges.

Additional Resources:

• A.R.S. § 13-3913 (Conditions Precedent to Issuance of Search Warrant)
• A.R.S. § 13 – 3405 (Marijuana Possession, Sales, and Transportation)
• Arizona Attorney General – Criminal Investigations
• Phoenix AZ Police Department
• Maricopa County Sheriff’s Department – FAQ
• One of the Most Important Reasons to Resolve Your Warrant
• U.S. Supreme Court Terry v. Ohio
• Cornell University Law School | Pat-down Search

Other Articles of Interest from The Law Office of James Novak’s Award Winning Blog:

• Marijuana Odor and Probable Cause for Search
• Arizona Supreme Court Rules on Voluntariness of Drug Testing
• Reasonable Suspicion and Totality of the Circumstances Arizona
• Entrapment: The Most Important Requirement for your Defense Revealed

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong…”

– Justice Sonia Sotomayor, US Supreme Court

The incident began with an unlawful police stop of a man leaving a private residence.

The suspect was arrested after the police officer learned the suspect had an outstanding warrant.

Illegal drugs were found in the suspect’s possession, after the officer searched him.

The search was conducted incidental to the arrest, as a result of the outstanding warrant for a traffic violation.

The U.S. Supreme Court decided that even though the stop was unlawful, it was not flagrant.

So they allowed the drug evidence to be admitted and used against the suspect to prosecute the illegal drug possession charges.

In this article we outline the case, the U.S. Supreme Court decision, and how it impacts your 4th Amendment rights, especially if you have an outstanding warrant for arrest. more

Legal Terms

Being familiar with the two legal topics that were central to this case, will provide a better understanding of the ruling:

They are the: 1.) Exclusionary Rule; and 2) Attenuation Doctrine.

1). Exclusionary Rule – In order for police to make a lawful stop, to question a person related to a crime, the officer was must “reasonable suspicion” that a crime occurred.

If the police officer lacks reasonable suspicion of a person’s involvement in a crime then the stop is unlawful.

In that case, one remedy courts have recognized to right the wrong is to excluded or suppressed any evidence obtained after the unlawful stop.

That means that the evidence can’t be used against the defendant. This remedy is known as the exclusionary rule. The exclusionary rule is designed to deter police from making unlawful stops.

When material evidence is excluded, it often leads to a dismissal of charges.

The courts recognize the need to maintain proper balance. Their intents is to ensure that punishing the state, by excluding the evidence found after an unlawful stop, does not outweigh public safety and other related social factors.

For this reason there are a few exceptions to the exclusionary rule. This means that following an illegal stop in which the court may have excluded or suppressed the evidence, certain exceptions may apply.

Those exceptions would allow for the evidence which was obtained following an unlawful stop, to be admitted.

2). Attenuation Doctrine – One exception adopted by the U.S. Supreme Court is what is known as the Attenuation Doctrine.

Put simply, it means that police wrongdoing may be dismissed or excused due to extenuating circumstances, that weren’t related to the stop or search.

To the contrary, if a police officer makes an unlawful stop, searches the suspect, and then finds illegal drugs, that evidence would not be admissible, because search and seizure were directly connected to the unlawful stop.

The US Supreme Court determined that the Attenuation Doctrine applied here because the outstanding arrest warrant interrupted the connection between the unlawful stop and the discovery of drug evidence in the suspect’s possession.

Overview of U.S. Supreme Court Case

Under the exclusionary rule, courts suppress evidence gathered in violation of the Fourth Amendment right to be protected from unlawful searches and seizures.

This rule applies to unlawful police stops. However, there are several exceptions to the exclusionary rule.

In this case, the US Supreme Court considered the Attenuation Doctrine as an exception that applied so that the evidence could not be suppressed or excluded.

A narcotics detective in Utah had been conducting surveillance on a house, based on an anonymous tip about the possibility of illegal drug activity.

During the week, he’d seen several people visiting the house, and he suspected that the people who lived in the house were dealing drugs.

After seeing the defendant leave the house, the detective detained him nearby, identified himself, and asked what he was doing there.

The officer asked for identification and sent it to a dispatcher.

The dispatcher advised that the defendant had an outstanding arrest warrant for a traffic violation.

The detective arrested the defendant based on the outstanding warrant for arrest.

Then the officer searched the suspect, incidental to the arrest.

The court cited Arizona v. Gant, 2009, which outlines permissive scope of searches incidental to arrest which includes purposes of law enforcement and public safety.

The officer found drug paraphernalia and methamphetamine (meth).

The suspect was consequently charged with possessing drug paraphernalia and meth.

The defendant’s attorney filed a motion to suppress this evidence on the grounds that it came from an illegal investigatory stop.

The prosecution agreed there was no reasonable suspicion for the stop. However, it argued that the arrest warrant attenuated the link between the illegal stop and the discovery of drugs.

The trial court denied the defendant’s motion to suppress the meth and paraphernalia evidence for two reasons: First, the existence of the arrest warrant was an extraordinary intervening circumstance. And second, the detective was legitimately investigating a suspected drug house and had not committed any flagrant misconduct.

The defendant pleaded guilty but reserved the right to appeal the denial of his motion to suppress the drug evidence found incidental to his arrest based on the arrest warrant for the unrelated drug matter.

The Utah Court of Appeals affirmed the trial court’s decision to deny the motion to suppress the evidence.

The defendant appealed to the State’s Supreme Court. The Utah Supreme Court reversed the decision, and ordered that the evidence be suppressed. It held that only a voluntary act by the defendant, such as a confession, could sufficiently break the connection between an illegal search and discovery of evidence.

The Appeals court determined that the detective’s discovery of the arrest warrant couldn’t be considered a voluntary act by the defendant.

The State then appealed to the US Supreme Court.

The Court considered whether the attenuation doctrine applies when the police make an unlawful investigatory stop, then learn that the person has an outstanding warrant, and consequently arrest the suspect and seize incriminating evidence.

The US Supreme Court reversed the decision. It held that there are many exceptions to the exclusionary rule, including the attenuation doctrine.

It that this exclusionary can apply if the link between the unlawful police actions, and the evidence found, has been interrupted, in a way interest protected by the Fourth Amendment, would not be served by suppressing the evidence.

The Court explained that the attenuation doctrine looks at the causal link between unlawful actions by the government and the discovery of evidence, and reasoned that it often has is not relative to the suspect’s independent actions.

Thus, the US Supreme Court did not agree with the Appeals court. Instead, it decoded that cases where the attenuation doctrine applies should not be limited to those involving independent acts, such as a confession by the defendant.

Citing Brown v. Illinois 1975, the court considered three factors: (1) the time that passed between the unconstitutional act and the discovery of the evidence, (2) the existence of intervening circumstances, and (3) the goal and flagrancy of the officer’s misconduct.

The Court determined that the warrant broke the causal chain between the unconstitutional stop by the detective and the discovery of the meth.

It explained that the warrant existed before the illegal stop, and that met the requirements of a valid warrant.

Once the detective learned of the warrant, he was obliged to arrest the defendant.

Once the officer arrested the suspect, it was legal to search him incident to his arrest as a safety measure.

The Court further explained that at most, the detective’s actions were negligent and didn’t rise to the level of misconduct, and that the officer made two mistakes in good faith.

Those mistakes included 1) The fact that the officer did not keep track of how long the suspect had been in the house; and 2) The officer should have asked the suspect if he could speak with him, instead of ordering him to do so.

The US Supreme Court acknowledged that mistakes were made both in stopping and questioning the suspect. But they noted that the stop was not flagrant, and everything after the stop was lawful.

The defendant argued that the suspect was stopped only so that the detective could fish for evidence.

The Court pointed out that the detective was investigating a house with occupants legitimately suspected of drug dealing.

The Court held the evidence was admissible and reversed the Utah Supreme Court’s judgment.

Impact of Case on Police Stops in Arizona

In general, when a U.S. Supreme Court decision involves Constitutional rights, the potential exists for it to have future impacts as a precedent case in states, including Arizona.

This particular ruling could likely impact Arizona judges’ reasoning in connection with the attenuation doctrine.

The Arizona Supreme Court considered a similar case in the past. In the 2011 case of State v. Hummons, the Arizona Supreme Court considered a case in which an officer discovered an arrest warrant for an individual during a consensual stop.

In that case the officer arrested him and found drugs in his possession, incidental to the arrest.

The trial court had denied a motion to suppress on the basis that the stop was consensual.

The appellate court affirmed, assuming there was an illegal detention.

It concluded that the discovery of the arrest warrant would be considered an intervening circumstance that removed the taint of the prior illegal stop.

The Arizona Supreme Court vacated the Arizona Appeals Court ruling related to illegal detentions. But it affirmed the trial court’s denial of the motion to suppress.

It explained that the appellate court was wrong about the stop being illegal, and had overemphasized how important the warrant was as an intervening circumstance that attenuated the connection between the illegal detention and the evidence discovered.

The Arizona Supreme Court reasoned that if a warrant could automatically remove the adverse impacts to prosecution due to evidence acquired by an unlawful stop or search, law enforcement could create a corrupt type of police investigation. In that, police could make illegal stops on a routine basis, and there would be a justification for their earlier illegal actions, if they found an arrest warrant.

In the US Supreme Court case we evaluated above, the High Court majority disagreed with this view, reasoning that the Arizona Supreme Court disavowed in considering Hummons.

Arrest Warrants Q. & A.

In the U.S. Supreme Court case analysis above, the suspect’s active warrant was the most critical factor that led to his arrest.

Had the warrant been resolved before the stop, the court would likely have agreed to suppress the drug evidence found in his possession, after the unlawful stop. This is one very important reason to resolve your arrest warrant as quickly as possible.

Below are answers to some frequently asked questions related to arrest warrants:

Q. How can I find out if there is a warrant out for my arrest?

A. In addition to law enforcement agency websites there are a number of free and paid services online that provide this information. However, they are not always accurate or up to date. The only sure way to confirm it is to contact the issuing law enforcement agency who you suspect issued the warrant. If you are uncertain however, it is best to consult a criminal defense attorney who can contact the agency to confirm if a warrant exists, on your behalf.

­–

Q. How do I resolve a warrant for my arrest?

A. There are three ways to resolve a warrant: . 1) You can voluntarily appear in court in front of the judge on a walk-in basis. Depending on the jurisdiction, the court may set aside a certain time or day for these. 2) If the warrant is for an unpaid bond, and you pay it, this may resolve the warrant, and a new court date rescheduled. 3) Hire a criminal lawyer who defends those with charges in the jurisdiction where the warrant was issued. They will file a motion to resolve the warrant on your behalf and arrange for a new court date to be scheduled. If you wish to self-surrender, you should in the least consult a criminal defense attorney to discuss the matter.

­–

Q. What happens if I don’t resolve my warrant?

A. If you don’t resolve your warrant, you can be arrested anytime. Police can go to your home, place of business, or other location where you may be to make the arrest. If you are stopped for a routine traffic violation, or on suspicion of another crime, police will routinely conduct a search and find the outstanding warrant. You will then be arrested. Police in Arizona occasionally conduct stings aimed at locating fugitives or those who have not resolve their outstanding arrest warrants.

­–

Q. How long do arrest warrants stay in effect?

A. Arrest warrants in Arizona stay in effect indefinitely, until it is resolved or the individual is arrested.

­–

Q. Can I be arrested in another state if I move out of state, if the warrant was issued in Arizona?

A. You can still be arrested in another state, if the warrant was issued in Arizona. This can happen if you are stopped by police in one state, and they find out you have an existing arrest warrant. When a police officer pulls over a suspect, even for a routine traffic violation, they will search their databases to see if the person has an outstanding warrant. Further, depending on the nature of the charges, and how serious they are, the police may decide to utilize resources and go out of their way to look for a person outside of Arizona.

­–

Q. What types of arrest warrants can be issued?

A. There are two types of arrests warrants. One is a bench warrant which results from failure to appear on a scheduled court date. The second is an arrest warrant issued when the police determine they have “probable cause” that a person committed or was involved in committing a crime.

Criminal Defense Attorney for Outstanding Warrants in Mesa AZ

Retaining a criminal defense attorney to resolve your warrant for help you avoid an untimely arrest.

As long as the warrant is outstanding, you risk immediate arrest anywhere, including home, work, or following a routine police stop.

The safest way to find out if you have a warrant or to get it quashed is to retain a criminal defense attorney to resolve it on your behalf.

James Novak is a former prosecutor in Maricopa County. He has provides a strong defense for person’s charged with a crime.

If retained, he can resolve the warrant, and provide a full defense for your criminal charges. James Novak, will protect your rights, and freedom and future.

Attorney, James Novak, provides a free initial consultation to people facing active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If you are charged with a DUI or crime, call or contact or call the Law Office of James Novak at (480) 413-1499 to discuss your legal matter. You can speak directly with James Novak and obtain your free and confidential initial consultation

Additional Resources:

• Maricopa County Sheriff’s Department
• A.R.S. 13-3408 (Possession of Narcotic Drugs)
• A.R.S. 13-3401 (Drug Definitions)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• National Library of Medicine | National Institute of Health
• Drug Enforcement Agency
• DEA Phoenix Division
• Arizona Arrests without Warrants

Other Articles of Interest from our Award Winning Blog:

• Arizona Passes New First Responder Law
• Right to Counsel before DUI Breath Test
• Consent to Search Includes Drug Canine Vehicle Search
• What Constitutes Conspiracy in Drug Sales involving Mobile Devices
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested
• Yes, You Have Constitutional Rights At An Arizona Checkpoint

The exceptions include situations where “exigent circumstances” exist.

This allows police to make a warrantless entry when they have probable cause to arrest a suspect who has fled, or to stop the imminent destruction of evidence.

Another exception is that the police may make a protective sweep incident to a lawful arrest.

Still another exception is an entry due to an objectively reasonable basis for believing someone within the house needs immediate aid.

Recently, the Arizona Supreme Court limited warrantless searches in connection with the “Community Caretaking Exception,” which is the topic of this discussion.

The Incident

In this case, police officers and paramedics went to the defendant’s residence after receiving calls from neighbors, complaining that the defendant was behaving erratically.

When police and paramedics arrived, the defendant told them that he and his family had been handling up to seven pounds of mercury inside the home, which was being kept in the home in a glass jar.

The paramedics were concerned about contamination, based on the defendant’s statements and called the Fire Department to the scene.

The Fire Department ordered the defendant to be “rinsed off.” The man cooperated and was transported to the hospital for further examination.

After the suspect was taken to the medical facility, the firefighter, and police officer decided to enter he home to gather information about the mercury, with the belief that medical personnel may need this information for the man’s treatment.

The officer also reported that they felt it was necessary to enter in order to find out what they “were actually dealing with.”

After entering the residence, the officer detected an odor of marijuana, which he traced to the utility room. There the officer discovered several marijuana plants.

The officer then left and returned to the home with a valid search warrant.

Upon return, the officer re-entered the home and seized the Marijuana.

The defendant was then charged with production of marijuana and possession of drug paraphernalia.

Even though possession of mercury is not unlawful, no mercury was found.

However, the officer saw “indications” of it in the hallway on the floor, which did not pose a threat. The Fire Department simply concluded just needed to be cleaned up.

Court Proceedings and Opinions

The trial court determined there were “exigent circumstances” for the warrantless search, admitted the marijuana as evidence, and ultimately found the defendant guilty.

The defendant appealed on the grounds that the motion to suppress the evidence should have been granted, and not denied.

The Court of Appeals agreed that the warrantless search was not justified and did not fall within any of the exceptions to a warrantless search of a suspect’s home.

The Appeals court reversed the lower court’s decision and held that no exceptions applied to the incident that justified a warrantless search and seizure into the home.

The State prosecution then asked the Arizona Supreme Court to review the issue of whether the “community caretaking exception” applied.

The AZ Supreme Court held that neither exception of exigent circumstances or emergency aid applied to this case, and the warrantless entry into the home was lawful.

The court explained that although police were concerned about the large quantity of mercury that the suspect claimed was in the house, mercury possession isn’t unlawful.

There was no evidence that the presence of mercury presented an immediate threat. In order for exigent circumstances to exist, the police would have to have had probable cause that there was criminal activity in the home, not just the possession of mercury.

The Court acknowledged the police officers’ various functions in the community that involve caretaking and civil services.

But that this does not extend the police officers exemptions from the warrant requirement simply because they are engaged in those functions.

The Court differentiated an earlier case in which community caretaking applied as an exception on the grounds that it involved an automobile, rather than a house.

Citing precedent cases involving search and seizure controversies, the Arizona Supreme Court held that there is a greater expectation of privacy in a house than an automobile. Therefore, the community caretaking exception does not apply to homes.

Specifically, the Court explained that it reached the conclusion it did because the Arizona Constitution Article 2, § 8 more explicitly protects homes than the federal constitution does.

The Court did not explicitly consider the complications presented by A.R.S. 36-603. Under that Arizona law, when a county board of health or local health department in finds it necessary to enter a building in order to prevent or remove a nuisance and is refused entrance, an officer of the department can make a complaint to the justice of the peace.

Under those circumstances, the justice of the peace may then issue a warrant directing the peace officer to destroy or remove the nuisance during daylight hours.

However, based on this ruling, any evidence of criminal activity obtained during such an entry would not be admissible.

Arizona Privacy Rights

“The Arizona Constitution ensures that persons shall not be disturbed in their private affairs or their home invaded without lawful authority”.

In this case, the Arizona Supreme Court analyzed the language under the Arizona Constitution, specifically those involving Privacy Rights.

Article II section 8 of the Arizona Constitution reads:

“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

The Conclusions of the AZ Supreme Court were that Arizona’s affords more protections in its specific language than the US Constitution.

US Constitution Privacy Rights

The US Constitution’s Fourth Amendment relating to privacy rights extends the following protections:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.

Whereby, the Federal law limits the protections for persons to be secure in their houses, and against unlawful search and seizures.

In contrast, the Arizona Constitution ensures that persons shall not be disturbed in their private affairs or their home invaded without lawful authority.

Thus, holding that the Arizona Constitution affords greater protections in some circumstances citing Arizona v. Bolt. Community Caretaking Doctrine – Why it did not Apply

The “Community Caretaking Doctrine” is one exception to the search warrant requirement.

It enables officers to conduct warrantless searches of a vehicle under particular circumstances.

This exception to a warrant stems from a Federal Case ruling over 40 years ago.

And although controversial to this day, it has been recognized by many state courts as a valid exception to the US Constitution’s Fourth Amendment related to search and seizures.

The Doctrine stemmed from a case involving a police officer who was arrested for drunk driving. During the DUI stop the driver fell into a coma.

The officer that stopped him searched the vehicle to find the police officer’s gun to remove it from the vehicle.

During the search the police found blood covered belongs including a towel, floor mat, and night stick.

Charges for first-degree murder were subsequently brought.

The defendant challenged admittance of the evidence in trial because the officer did not have a search warrant and did not provide consent for the vehicle to be searched.

The US Supreme Court held that the search did not require a warrant and was admissible since the investigative officer was performing a community caretaking function.

This after police searched inside the vehicle and trunk to find the impaired police officer’s gun.

The Arizona Supreme Court decided that the State prosecution was not persuasive in arguing that the community caretaking exception should apply to homes as well as vehicles.

The AZ Supreme Court held that the adverse consequence of extending this doctrine to apply to home searches would significantly reduce privacy protections currently afforded by the Arizona Constitution.

The Justices pointed out that this does not prohibit current warrantless exceptions which include exigent circumstances, and emergencies where immediate attention is needed.

The Arizona Supreme Court also held that the community caretaking exception applies to auto searches only and not to homes.

Marijuana Laws in Arizona

Though the Court’s ruling in this case provides a crucial protection in home search and seizure cases, it does not prevent police from obtaining a warrant to search a person’s residence if they have probable cause to do so.

Production and possession of Marijuana is illegal in Arizona, outside of the Medical Marijuana laws.

Violations are taken very seriously, and most Marijuana offenses are classified as felonies. Penalties for Felonies in Arizona call for prison terms.

If a person is found to be in possession of less than two pounds of marijuana, they will be exposed to our months to two years in prison and a felony record.

If the police obtained the evidence illegally, however, your attorney may be able to get the charges dismissed.

However, if an exception to the warrant rule does not exist in a criminal case involving the discovery of marijuana in your home, as in the above-described case, your attorney will have strong grounds to ask that the evidence be suppressed.

Criminal Defense Attorney Mesa AZ

It is important in any criminal or DUI case to retain an effective legal advocate who will protect your rights and defend your charges.

If you are charged or arrested for marijuana possession or another drug crime, you should consult with an experienced Phoenix felony defense attorney to discuss your matter and your options for a defense as soon as reasonably possible.

James Novak is a highly skilled former prosecutor who is now a criminal defense attorney. Contact James Novak at 480-413-1499 for a confidential and free initial consultation if you face active criminal charges in Phoenix, Tempe, Mesa, Chandler, Gilbert, Scottsdale, or other surrounding East Valley Cities within Maricopa County.

Additional Resources

• Arizona 13-3925
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Arizona 13-3912

Other Articles of Interest

• Violations of “Search and Seizure” Laws: How they Impact Prosecution, July 23, 2013
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested, June 9, 2013
• Yes, You Have Constitutional Rights At An Arizona Checkpoint, July 5, 2014

Privacy rights were outweighed by law enforcement interests in the United States Supreme Court’s June 3rd ruling in Maryland v. King. In this case, the Court was divided 5-4 over the question of DNA sample collection. All states and the federal government require convicted felons to submit DNA samples to law enforcement. But this was the first case to look at whether even those who are merely arrested (and assumed innocent until proven guilty) can be required to submit their DNA to law enforcement.

The Supreme Court ruled that states may–without a warrant– routinely collect DNA samples from people arrested for a “serious crime.” This was a highly anticipated ruling because it is the Court’s first on the privacy of genetic information. The ruling focused on Maryland’s law, which requires DNA sampling of those arrested for serious crimes, supposedly for the purpose of identifying them. However, the case’s language was so broad that it opened the floodgates for all states to permit DNA sampling of people arrested, even if they are arrested only on a minor charge.

The case arose from a criminal defendant’s appeal after he was convicted for a felony only because the Maryland police were able to match his DNA in a federal database. After the defendant was arrested for assault, the police swabbed the defendant’s cheek to get a DNA sample and they submitted the sample to a federal DNA database. The swab was not necessary to prove the assault.

The federal database to which the sample was submitted matched the defendant’s DNA to DNA collected from a crime scene six years earlier. Because of the routine cheek swab, the defendant was convicted of the earlier serious crime.

The Maryland Court of Appeals threw out the defendant’s conviction on the grounds that a cheek swab violated Fourth Amendment rights against illegal search and seizure. Usually the State must obtain a warrant if it wants to conduct any kind of invasive physical testing. The State appealed the appellate ruling.

The Supreme Court’s majority opinion, written by Justice Kennedy, compared DNA sampling of the arrested to fingerprinting which is legal. The Court overturned the Court of Appeals. Justice Kennedy wrote that states could collect DNA from people arrested for “serious offenses.”

The majority opinion reasoned that Maryland’s law supported the well-established and legitimate governmental interest of identifying people in custody as opposed to solving crimes. The majority also reasoned that a cheek swab is minimally intrusive from a physical perspective.

Justice Scalia, joined by three liberal justices, wrote the dissent. He warned, “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

This ruling impacts all people in states that authorize DNA testing, including Arizona. At present, Arizona’s law enforcement is able to collect DNA from anyone imprisoned for a felony offense, including those on probation. However, Arizona has also passed legislation to allow for the collection of DNA from those who are merely arrested, not convicted, of a serious crime.

This group includes those who are arrested for certain sexual offenses, burglary, prostitution, and other serious, violent or aggravated offenses. Although this group represents a relatively narrow number of criminal defendants now, as Justice Scalia pointed out the Supreme Court’s ruling is broad enough that states could widen the net of people who are required to submit to DNA sampling. As Justice Scalia suggests, in the future, DNA sampling may be part of police booking procedure even in traffic cases.

Additional Resources

DNA Laws Database Mesa Police Department Mesa Municipal Court

If you are arrested, your future may depend on hiring an experienced and knowledgeable criminal defense attorney. Contact the Law Offices of James Novak at (480) 413-1499.

MORE BLOGS

Arizona’s Medical Marijuana Law Stands Ground, Arizona Criminal Defense Attorney Blog, June 4, 2013 Marijuana DUI: The Impact of Montgomery V. Harris in Arizona, Arizona Criminal Defense Attorney Blog, March 13, 2013

On November 9, 2012, the United States Supreme Court agreed to hear a criminal DNA testing case, Maryland v. King (12-207), which could result in nation-wide impacts. The defendant’s DNA samples were collected immediately following his arrest. He was subsequently convicted of rape. King’s Attorney attempted to suppress the DNA evidence, on the grounds that it was taken unconstitutionally. The Maryland Court of Appeals agreed, and overturned King’s conviction. They ruled that suspects under arrest but not convicted, have more rights than convicted felons; and that DNA testing was more invasive than standard finger print evidence. The State of Maryland disagreed, and appealed to the US Supreme Court to hear the case. The case is expected to be heard by the high court in June 2013.

DNA testing has been the subject of much controversy. Objection to the DNA testing of non-convicted suspects is that it is in violation of a person’s 4th Amendment Constitutional Right against unlawful search and seizures.

All states currently use DNA testing as an admissible investigative tool. Currently it is lawful in most states, including Arizona, to collect report and distribute DNA results for convicted felons. However, not all states allow collection, analysis, reporting, distributing, and use of DNA testing as evidence against first time criminal offenders, with no felony convictions.

DNA Testing Laws in Arizona

Arizona allows collection, reporting and distribution of DNA evidence from prison inmates and convicted felons. Criminal DNA samples are maintained by in a forensic data base by authorized Law enforcement agencies, and indexed by the FBI. However, in recent years, Arizona also passed legislation allowing DNA to be collected from suspects who were arrested, but not convicted of a felony in specific situations. Under Arizona Law A.R.S. 13-610 DNA may be collected from a suspect if they were arrested for serious, violent, and dangerous felony offenses on involving a victim.

The law allows for DNA testing in situations where the suspect was arrested for a criminal offense specified by law, even if they were not convicted of the crime. Examples of these offenses include but are not limited to sexual offenses and assault; burglary in the first or second degree; homicide; and other dangerous offenses involving victims.

Criminal Defense for Charges involving DNA cases

Anyone arrested for a serious or dangerous crime, should always consult a criminal defense attorney before pleading guilty. Felony convictions for these types of crimes, will result in years to life in prison, or even expose a defendant to the death penalty. A defendant should always invoke their right to retain qualified legal representation to defend their rights and charges. If DNA evidence was collected unlawfully it may lead to suppression of the evidence in favor of the defendant. If DNA evidence does not lead to a match of the suspect arrested, the charges may be dismissed or lead to a “not-guilty” verdict in a jury trial. The lawfulness or validity of DNA evidence should always be argued by a qualified criminal defense attorney.

Additional Resources:

• Arizona State Legislature

• Arizona State Bar – Jury Instructions for Evidence

• United States Supreme Court – Maryland v. King

• US Supreme Court Orders – Petition Granted Maryland V. King, Alonzo J. (12-207)

If you “Like” this article please let us know with “+1”. Feel Free to subscribe and “Share”!

Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI & Criminal Defense Firm Serving Maricopa County Phoenix-metro, and surrounding East Valley Cities