Protecting Against Warrantless Searches

While the federal Constitution’s Bill of Rights provides crucial legal protections for individual rights, it’s sometimes forgotten that state constitutions include their own bills of rights—and that these are often more protective than the federal version. Indeed, one reason for our federalist system is that states can adopt rules that secure freedoms more effectively.

Arizona’s Constitution, for example, protects freedom of speech more than the federal First Amendment does. It also includes provisions such as the Gift Clause or the Special Law Clause that have no explicit counterpart in the federal Constitution.

But the Arizona Constitution’s “Private Affairs” Clause is an anomaly. Although it’s often referred to as the state version of the federal Fourth Amendment—which forbids searches without warrants—the Private Affairs Clause is worded very differently from the U.S. Constitution. Instead, when Arizona’s Constitution was written in 1910, its authors copied the wording of the Washington State Constitution, which had been written about 20 years before. The wording they used prohibits unjustified searches of homes, but also forbids the government from intruding into a person’s “private affairs.”

Washington state courts have interpreted this language in ways that provide the strongest protections against warrantless searches in the nation. Yet Arizona courts have largely failed to do so, and have instead followed federal law on the subject—which undermines the strong protections that the state Constitution’s authors intended to provide.

In this case, police officers searched a car without a warrant, using a federal exception to the warrant requirement known as the “inventory exception.” The trial judge ruled that this was improper, and on appeal, we filed a friend of the court brief in support of that ruling. Given that the Arizona Constitution does not use the federal Constitution’s wording, but uses the Washington Constitution’s wording instead, we argue that Arizona courts should follow the lead of Washington courts in interpreting the Private Affairs Clause.