“In October 2010, police officers saw Johnathon Serna talking to a woman on the street in a ‘gang neighborhood,'” azcentral.com reports. “When the woman walked away, they approached Serna, who they described as ‘very cooperative and polite.'” Roger that. “Then one of the officers noticed a bulge in Serna’s waistband and asked if he had a gun. Serna said he did, and the police told him to put his hands on his head and took the gun. When the police learned that Serna had prior felony convictions, making him a ‘prohibited possessor,’ they arrested him and charged him with misconduct with weapons.” Serna served time for the weapons beef, while his case wended its way though the Copper State’s court system. Eventually, the AZ Supreme Court ruled against the search, despite the fact that . . .
cops saw the bulge. While knowing that Serna was happy to see them, it was not enough to justify the search.
Over the course of the appeals, prosecutors argued that Serna had consented to frisking. The high court wrote that “police interactions with members of the public are inherently fluid, and what begins as a consensual encounter can evolve into a seizure that prompts Fourth Amendment scrutiny.”
According to the ruling, Serna only had to say that he was not going to talk to the police and could have walked away after they told him to put his hands on his head.
The justices did not think it was that easy. “A reasonable person would not have felt free to disregard such a command from a law enforcement officer,” they wrote. And they agreed Serna’s constitutional rights had been violated.
A frisk can only occur under two conditions, they concluded: “officers must reasonably suspect both that criminal activity is afoot and that the suspect is armed and dangerous.”
What’s that you hear? Arizona open carry gun owners thanking the good Lord that they live in America’s most gun-friendly state. And open carry advocates in other states wishing their states would get a knock in their head. Metaphorically speaking. [h/t SN]