Police Cannot Frisk Citizens Carrying Guns Without Cause

Court Ruled Reasonable Suspicion Required to Frisk Gun Carriers

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.

In 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's History of Concealed Carry Laws

Arizona has a deep and longstanding relationship with the 2nd 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 seizures.

Previous Laws Allowed Search & Seizure Without Cause

In the 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 the officers.

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.

Two Conditions Necessary for Search & Seizure

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.

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