On August 7, 2014, the Arizona Supreme Court issued a new ruling regarding
search and seizure that is important news for all gun owners. For years,
honest gun owners that openly told an officer that they were carrying
a firearm have been forced to submit to searches of their body or purses
by overzealous officers all in the name of public safety.
State v. Serna, the Supreme Court put an end to that practice. Officers may not frisk
an individual unless an officer can establish reasonable suspicion that
criminal activity was afoot when a consensual encounter occurs between
an individual and police officers, and the individual informs officers
he has a gun.
Arizona has a deep and longstanding relationship with the 2
nd Amendment. A huge part of the historical culture of Arizona lies in the
Old West. From the days of Wyatt Earp in Tombstone to the times that John
Wayne was filming moving classics in Old Tucson, Arizona has remained
a state where citizens could openly carry loaded firearm.
As times changed and public perception shifted, more gun owners felt compelled
to conceal their firearms under shirttails or inside purses. In 2010,
the state legislature made Arizona one of the few states were anyone over
the age of 21 can carry a firearm in a concealed fashion without needing
any sort of special permit. The decision in the
Serna case shows that the Supreme Court is willing to protect members of our
society that decide to carry a firearm for unreasonable searches and siezures.
Serna case, the officers began talking to Jonathon Serna in a consensual conversation,
in which he was very cooperative. One of the officers noticed a bulge
in Mr. Serna's waistband and asked if Mr. Serna had any firearms.
Mr. Serna said that he did, and the officer immediately ordered him to
place his hands on his head while the officer removed the gun. The Court
found that this action turned the consensual encounter into a seizure
because the order restrained Mr. Serna's freedom to walk away from
After their illegal search, they learned that Mr. Serna had a past felony
conviction and had not filed paperwork with the court to get his civil
rights restored. Mr. Serna was arrested for being a prohibited gun possessor.
Mr. Serna was convicted of this charge after a jury trial, and the Arizona
Court of Appeals agreed with the decision, stating that the officers'
frisk of Mr. Serna was justified for officer safety concerns.
The Arizona Supreme Court discussed the foundational search and seizure case,
Terry v. Ohio, and concluded that the officers did not meet
both parts of the
Terry test that requires the officer to reasonably conclude 1) that criminal
activity may be afoot, and 2) that the persons with whom he is dealing
may be armed and presently dangerous. If both of these conditions are
not met, the officer may not frisk the individual without violating the
Fourth Amendment right against unlawful search and seizure.
The Court found that there was no evidence the police officers had either
probable cause or reasonable suspicion that Mr. Serna was engaged in criminal
activity when they ordered him to put his hands on his head, and that
this action ended the consensual encounter between them. Further, the
officers had no justification for frisking Mr. Serna, so the frisk violated
the Fourth Amendment. The Court reversed Mr. Serna's conviction based
on this violation of his right to be free from unlawful search and seizure.