Equal Protection Posted on September 11, 2017 | Op-Ed

Goldwater Institute Urges Arizona Supreme Court to Protect Arizonans’ Right to Privacy

The Goldwater Institute is calling on the Arizona Supreme Court to protect a core element of Americans’ right to privacy: the right not be searched without a warrant.

In a friend of the court brief filed today in the case of State v. Hernandez, the Goldwater Institute argues that law-abiding Arizonans’ rights are in jeopardy due to an expansion of the warrantless search rule. While there are some rare emergencies in which officers cannot wait for a warrant, the general rule is that even if they have good reason to search, the police must get a warrant before searching people. But in this case, courts allowed police officers to stop a driver who had broken no traffic laws on the theory that they were in “hot pursuit”—even though the court admitted that the driver stopped his car “within seconds” of police turning on their lights. If allowed to stand, that rule threatens law-abiding Arizonans with arrest and search when they have committed no crime and when there is no emergency justifying a warrantless search.

The courts in this case held that a driver had ‘fled’ from the police even though he stopped the car within seconds of them signaling for him to stop, because he did not immediately stop and because he stopped in a private driveway instead of the roadside. But that’s not illegal—drivers often choose to stop in a public, well-lit place instead of the instant an officer turns on his lights, even if that takes a few seconds. By expanding the definition of ‘fled,’ the courts are threatening innocent Arizonans with arrest and search.

Much like the definition of “fled,” the courts have also expanded the definition of “hot pursuit”—to the detriment of Arizonans’ rights. The courts held that police did not have to get a warrant to enter the property because they were engaged in “hot pursuit”—a well-known exception to the warrant requirement. But in this case, the police were not in hot pursuit because all involved agree that the driver did not break any law and did not flee the police. The “hot pursuit” rule should only apply where a suspect commits a serious crime and runs from the cops—which did not happen in this case. Expanding the “hot pursuit rule” like this risks allowing police to stop and search Arizonans without good reason.

Expanding the power to search without a warrant runs the risk of encouraging arbitrary and discriminatory action by the police. Research has shown that the consequences fall hardest on members of minority groups, who are more often stopped and more often searched without justification. To achieve equal justice for all Arizonans, our courts should ensure that constitutional protections against warrantless searches are scrupulously followed.


Timothy Sandefur is Vice President for Litigation. Before joining Goldwater, he served 15 years as a litigator at the Pacific Legal Foundation, where he won important victories for economic liberty ... Read

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