AZ Supreme Court: Cops Can’t Frisk Gun Owners Unless They’re “Engaging in Criminal Behavior”

Arizona Supreme Court (courtesy

“In October 2010, police officers saw Johnathon Serna talking to a woman on the street in a ‘gang neighborhood,'” 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]


  1. avatar Skyler says:

    No link to the decision?

      1. avatar Danny Griffin says:

        That coverage of the story states that an officer can, for example, ask for consent to remove a gun for the duration of the encounter, but absent that consent they can’t take it without establishing a reasonable suspicion of criminal activity. Interesting since other courts have ruled otherwise.

    1. avatar Mark Lloyd says:

      It’s not that hard you know. But here, I did the steps for you.
      The first link should take you to a pdf of the decision.

      And the following link takes you to the page with a list of 2014 AZ Supreme Court decisions.
      The top one is the correct one to view.

      1. avatar Danny Griffin says:

        I’d like to read the lower court decision. That’s the interesting one, although it’s probably not published.

        1. avatar Mark Lloyd says:

          The superior court record is probably available if you wanted to go in and get it. The appeals court decision is available. I’m not doing the footwork this time.
          Opinion of the Court of Appeals, Division One
          232 Ariz. 515, 307 P.3d 82 (App. 2013)

        2. avatar Danny Griffin says:

          Yes, I’ve already posted the CoA link and pointed out the interesting dissenting opinion beginning with paragraph 26. Someone else already posted the SC opinion.

  2. avatar Michael B. says:

    Are you guys changing the layout of the site again?


    1. avatar Marcus Aurelius says:

      At least we can reply on what I think is the mobile version now.

      1. avatar Michael B. says:

        Well isn’t that dandy? Meanwhile it looks like Patrick Bateman’s business card.

        1. avatar Dave says:

          That’s bone. And the lettering is something called Silian Rail.

      2. avatar tfunk says:

        Did I just reply to you from the mobile site or desktop version? I can’t tell, either! 🙂

        All I know is ads are coming at me from every which way…

        1. avatar Dirk Diggler says:

          TTAG – make it a pay site. These ads are bullcrap!

    2. avatar Stuart Anderson says:

      Agreed. Jesus christ go back to the mostly sane layout it was 10 minutes ago.

      1. avatar TheBear says:

        I agree. This new format sucks.

        1. avatar Mighty Mo says:

          Same here, I can’t tell what I’m looking at.

        2. avatar Jonathan - Houston says:

          Ditto on the format feedback, and a plus one for good measure.

        3. avatar Danny Griffin says:

          I don’t know, I think the new format looks more professional.

    3. avatar Ken says:

      Glad to know it’s not just me. My computer has been changing things around on its own lately. I thought this might be another one. A heads-up would have been nice.

    4. avatar roger says:

      No kidding. This is hideous. It looked much better before. First the forum goes to shite and now this.

    5. avatar Anonymous says:

      I know. What happened to the site. It was so slow to load. It was almost like an IP redirection to a 286 in some guys basement. I was re-experiencing 1995 picture loads.

      I could get used to the new look.

  3. avatar LarryinTX says:

    I liked yesterday’s format better. What is tomorrow’s going to be like?

  4. avatar Vhyrus says:

    Yeah, we rock. We know.

    1. avatar bob45 says:

      We do don’t we. Freedom happening down here in the AZ.

  5. avatar Tom in Oregon says:

    No surprise in the ruling. It’s been that way here for many moons. Glad to see the right to privacy is spreading.
    So Serna was a bad guy. Oh well. Sometimes the bad guys get away.
    You simply cannot use fruit from a poisonous tree.

    BTW. I’m liking the new layout. Seems fluid.

    1. avatar 2AMexican says:

      There is a saying,”You may beat the rap, but you won’t beat the ride”

      P.S. I very dislike the new layout.

      1. avatar Hannibal says:

        That changes with precedence.

  6. avatar Menger40 says:

    Holy site redesign, Batman!

      1. avatar Jus Bill says:

        Don’t knock it – that was cutting edge once.

        1. avatar Danny Griffin says:

          The Sinclair was never cutting edge. LOL

        2. avatar neiowa says:

          It was in 1982 for consumer PC. Sort of. I’m prettys sure still have one in the original box somewhere. Probably worth a gaizzilion $? I’ll trade for a Barrette M82A1 with Nightforce. Even up.

          Or a Ruger SS 10/22 takedown (found a brick of Remington 22LR at Cabelas this morning).

        3. avatar John in Ohio says:

          I had one when they came out. Someone bought it from the exchange and owed some money… 🙂 This black on white color scheme reminds me of the TS1000. If they can get the screen flicker in there then I’d be back in time.

          Yeah, I don’t think it was every cutting edge.

  7. avatar Dirk Diggler says:

    Oh the horrors. . . . . now Shannon will have to tweet that we are all so much more unsafe now. . . .

    1. avatar Drew says:

      I don’t know, that last name sounded pretty ethnic. If he had run and suffered a scuff in the takedown he would be just another poor innocent yoot.

  8. avatar GWHNick says:

    That’s good to hear since I just cleared escrow on a home in AZ today!!! So long California, I sure as hell will not miss it there.

  9. avatar Dr. Kenneth Noisewater says:

    What’s that you hear? Arizona open carry gun owners thanking the good Lord that they live in America’s most gun-friendly state.

    Friendlier than Vermont? I guess the only way that could be is if AZ had all the same liberties as well as adding suppressors.

  10. avatar Anonymous says:

    I do not consent to any searches!

    And against the chipotle ninja anti’s – always make a recording. Because the cops can simply state that you gave them “consent.”

    1. avatar Gunr says:

      And if they erase your recording?

      1. avatar Drew says:

        Or if you reaching for your recording device gets you ventilated?

  11. avatar John in Ohio says:

    It’s encouraging to read about a court getting this stuff right. The reality is that it’s difficult for a rank and file citizen to just “walk away” from an encounter. One never knows what the officer might cook up as justification for assault. Of course, the other officers are inclined to back up the bogus story; or at least not contradict it.

    1. avatar Fed Up says:

      “Am I being detained”?

      If yes, “what’s your probable cause”? (they can detain and identify you in a Terry Stop with reasonable suspicion, but it’s not my job to tell them that)

      If no, wish them a good day, THEN SHUT UP AND LEAVE. There’s no point in asking if you’re detained, or if you’re free to go, if you don’t intend to actually quit talking to them and GO.

      1. avatar Hannibal says:

        Asking “what’s your probable cause” when you are being detained (as opposed to arrested) is just broadcasting that you have no idea what you’re talking about and are struggling in vain to remember that one class in criminal justice you took as an undergrad.

        You can ask what the reasonable suspicion is but the police officer is under no obligation to tell you… just like you are under no obligation to tell him anything

        1. avatar John in Ohio says:

          True. In Ohio it’s a little trickier though because if the officer was later able to come up with reasonable articulable suspicion then identification was required by law unless identifying could reasonably incriminate the individual. Even though the officer doesn’t have to articulate reasonable suspicion to the person, we take a legal risk when we choose not to identify in Ohio. Beyond identifying if one thinks the officer might have or be able to cook up RAS later, then there’s no further obligation to say anything. AFAIK, it’s wise to briefly state that you are invoking your rights but try not to sound like a paralegal. I ask, “Do you have suspicion of a crime, sir/ma’am/officer?” If there’s no answer or they answer affirmatively my response is something like, “My name is … My date of birth is … I reside at … I am now invoking my rights and will remain silent to questioning. Am I free to go or am I being detained?”

  12. avatar Drew says:

    “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.”

    i’m not sure this works on any policy officer. this only inflames them to exert their authority even more.

    1. avatar Micah Rubin says:

      Unfortunately, I agree. If a cop wants to search you, he’ll think of a reason. If you were to walk away after being told to put your hands on your head? I don’t think I’d want to risk it.

    2. avatar Fed Up says:

      Isn’t it implied that “PUT YOUR HANDS ON YOUR HEAD” carries the threat of “OR I WILL SHOOT YOU”??

      Hard to construe that as a voluntary encounter.

      Trial judge is a copsucker, never happy unless he’s on his knees in front of a LEO with his mouth full.

      1. avatar Danny Griffin says:

        Not apparently to the prosecution. The state argued Serna could have told the cops to FOAD and simply walked away.

    3. avatar Matt in TX says:

      This was also my first thought. Just try to walk away from a cop. Youtube has bloody videos of people trying to walk away.

    4. avatar Hannibal says:

      I don’t think a reasonable person would think they are free to leave when they are told to have their hands on their head. Suggesting otherwise is dangerous, because people will start to unreasonably think they can leave anytime and there will be more uses of force.

  13. avatar Ahil925 says:

    Yay, layout redesigns… Cause everyone loves it when a site they frequent decides out of the blue with no warning or announced test period to change fonts, colors, and layouts. I put up with enough of this crap with Facebook et al, now I got to put up with it from TTAG?

    Why the hell do web developers feel the need to take a sledgehammer to site designs when they add new features?

    1. avatar Dirk Diggler says:

      Because everything looks like a pile of rocks.


  14. avatar Another Robert says:

    Well, my intermittent keyboard function seems to be a bit less intermittent. For the moment. That was pretty abrupt tho…

  15. avatar Dave357 says:

    Arizona is turning purple, we should cherish the good times while they last.

  16. avatar Stu says:

    Rabble, rabble, rabble site format change.

    But really, this isn’t an improvement in any way: it is garish. I enjoyed the previous format where I could read the content and not be distracted

  17. avatar Tom396 says:

    I just wish the page would quit reloading every ten seconds!

  18. avatar Danny Griffin says:

    What? The original court–or maybe even the prosecutor–said that Serna could have walked away after the police told him to put his hands on his head? Right. I’d like to read the original ruling, but it’s probably not “published” and not easily available.

  19. avatar LC Judas says:

    This design does not work well. Clicking on what I think is an article link kept leading me to the housekeeping post.

    That said, there is no safe way to exit an encounter with the cops who ask you to place your hands on your head. They do that for safety and walking away creates perceived exigent circumstances. Which means it can be construed as a possible threat. You only give that command to detain. How would he feel he’s free to walk away?

    Further, letting something stick from an apparent fishing expedition sets the worst precedent. They had no business saying that if he wasn’t a threat to someone or in commission of a crime at that time and due to be detained.

  20. avatar Conan says:

    Arizona the most gun friendly state? Maybe in the lower 48.

    I got pulled over up here in AK the other day and the cop asked “any firearms in the car”.
    I wasn’t positive my wife had taken hers out of the glove compartment so I said “……. I don’t think so”.

    He gave me back my license and said “have a nice day”.

  21. avatar Excedrine says:

    It’s still a win for us, too, ladies n’ germs. Well, at least those of your fortunate enough to live in Arizona and other states that actually have at least some semblance of respect for 4A.

  22. avatar Danny Griffin says:

    Here is the AZ CoA decision affirming lower court conviction. There is a good “discussion” of 4A and officer actions there in the dissenting opinion beginning in paragraph 26.

  23. avatar Jandrews says:

    God did I move to the right state. NC is good, but AZ is gooder.

  24. avatar repeal1968guncontrolact says:

    Once again we are reminded that saying “no comment I don’t consent to any searches” to agents of government is the superior course.

    1. avatar Zed says:

      Cool story Bro…. Because we all know that the Police are going to accept your answer and just walk away. They are going to come up with whatever they dream up that you may not have not or intend to do or look suspicious of and they are going to search you anyway.

  25. avatar Mark says:

    It’s about time! There’s nothing more absurd than the government’s claim in a *constitutional carry* state that *carrying* a gun makes you “suspicious” … Cops don’t have any right to go “fishing” for crimes.

    By the officer’s own statements, the defendant was in a “high crime” area at night. A prudent, law-abiding citizen might be reasonably expected to arm themselves in a dangerous area.

  26. avatar Bill says:

    That’s cool. Now Arizona should attempt to put an end to the unconstitutional “immigration checkpoints” miles away from the border.

    1. avatar Yellow Devil says:

      That ball needs to be hit into the Federal Court.

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