October 15, 2019
State constitutions typically provide people with stronger legal protections than the federal Constitution—or would, except that many times, courts fail to enforce them. Nowhere is that more true than in the case of the Arizona Constitution’s “Private Affairs” Clause. That’s the provision that says “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The authors of the Arizona Constitution borrowed this language from the Washington State Constitution 1889—and these are the only two Constitutions in the U.S. that contain these words.
But although Washington courts have interpreted the Clause in ways that provide that state’s citizens with some of the strongest protections against warrantless searches in the nation, Arizona courts have not done the same. Instead, the Grand Canyon State’s judges have copied federal cases involving the federal Constitution—ignoring the fact that the federal Constitution uses completely different language, was written at a different time, and was focused on different issues. The Arizona “Private Affairs” Clause, for example, doesn’t use the word “unreasonable,” as the federal Constitution does—and most federal precedent relating to searches and warrants address whether or not certain things are “reasonable.” It makes no sense, therefore, for Arizona courts to copy federal precedent. Yet they do.
In this case, the Arizona Court of Appeals ruled that officers violated the Arizona Constitution by obtaining information about an internet user’s location from an internet service provider without first getting a warrant. But, the court declared, that was okay, because under the “good faith exception,” the evidence could still be used, since officers thought what they were doing was legal.
We filed a brief urging the Arizona Supreme Court to review the case to address both points. Courts have struggled to resolve the constitutionality of obtaining internet location information from third parties—and it’s important for Arizona courts to do so by addressing the state Constitution, not simply copying-and-pasting from federal courts. In fact, Arizona judges should look to Washington state courts for guidance, since that’s the state where the language originally came from—and that state’s courts have addressed these constitutional questions already. Doctrines like the “good faith exception” were created by federal courts to determine what’s “reasonable” or not—and therefore should have no applicability under Arizona law.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He litigates important cases for economic liberty, private property rights, free speech, and other matters in states across the country. Timothy is the author of several books, including Frederick… Read more...
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