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Arizona Supreme Court Upholds Warrantless Search on “Implied Consent” Theory

May 18, 2018

May 18, 2018

The Arizona Supreme Court ruled today that police officers acted legally when they stopped motorist Anthony Hernandez—who was driving legally—and arrested him after they smelled marijuana. But in a shockingly extreme opinion, an Arizona appellate court ruled that Hernandez had engaged in “felony flight” because he’d failed to stop the instant police turned on their lights. As we pointed out in our two friend of the court briefs (here and here), it’s perfectly reasonable and legal for drivers not to stop instantaneously, and in fact, police and the AAA recommend that drivers find a safe, well-lit place to pull over. Worse still, the Court of Appeals found that because Hernandez was “fleeing,” police were excused from having to get a warrant. And the court capped it off by ruling that the driveway Hernandez stopped in wasn’t really “curtilage”—a legal term meaning property next to a house that’s considered the same as the house for purposes of search and seizure law.

In our briefs, we argued that the police were not justified in stopping Hernandez when he was driving legally. Allowing such stops encourages biased policing and results in “driving while black” and other discriminatory phenomena. We also argued that there’s no such thing as “sort of” curtilage—there’s just curtilage, and the warrant requirement should apply without exception. We urged the court to follow a 2017 Florida Supreme Court decision that held that police were required to get a warrant even to pursue a suspect that they saw go into a house. “The potential danger that accompanies an officer’s entry into the private dwelling of an individual is not to be taken lightly,” said the Florida justices. “We cannot endorse a standard that would encourage such needless entries, and thus increase the potential for officer injuries or fatalities.”

Although the Arizona Supreme Court today nullified the more extreme portions of the Court of Appeals’ ruling, it unfortunately failed to address these important issues. Instead, it simply concluded that because Hernandez stopped his car in a driveway, he “impliedly consented” to the police entering into the property. That’s not an unreasonable conclusion, but it unfortunately leaves in place the unjustified traffic stop that started the matter.

The problem with decisions like this is that, as former California Supreme Court Justice Janice Brown observed, large parts of the warrant requirement have been essentially erased: “In the pervasively regulatory state, police are authorized to arrest for thousands of petty malum prohibitum ‘crimes’—many too trivial even to be honestly labeled infractions.” Yet all of them are “public offenses for which a violator may be arrested,” and any time you’re arrested, you can be searched.

In a short separate opinion, Justice Clint Bolick urged his colleagues in address in a later case whether the state constitution provides stronger protections against warrantless searches. That would be a wise course. The Arizona Constitution’s protections for privacy are much more strongly worded than the Fourth Amendment’s, and Arizonans should be better protected against warrantless searches than they currently are.

Timothy Sandefur is the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.



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