Sep 29, 2014

In August, the Arizona Supreme Court unanimously held that in order to frisk an individual, “officers must reasonably suspect both that criminal activity is afoot and that the suspect is armed and dangerous.”

In 2010, while patrolling a neighborhood known for gang activity, two officers observed Serna and a woman standing in the street talking. When the pair separated and began walking in opposite directions, one of the officers called out to Serna who returned. The officers noticed a bulge in Serna’s waistband and asked him if he had any weapons. Serna admitted to having a gun. The officers then ordered Serna to put his hands on his head, frisked him, and removed the gun from his waistband. In response to some additional questions, Serna admitted to having a prior felony conviction and being a prohibited possessor. He was then arrested.

At trial, Serna’s attorneys argued the gun should be suppressed because the officers had violated Serna’s Fourth Amendment rights. The trial court rejected that argument, finding that the stop was consensual and that the frisk was justified for officer safety reasons. Serna was ultimately convicted and sentenced to two and a half years in prison.

The Arizona Supreme Court reversed Serna’s conviction and sentence. Although Ninth Circuit precedent allows an officer to frisk an individual if there is reasonable suspicion the individual is armed, the court concluded that in Arizona, where citizens are legally permitted to carry both visible and concealed weapons, the mere presence of a gun is insufficient to establish reasonable suspicion that the individual is presently dangerous. Accordingly, to frisk an armed individual, an officer must also have a reasonable suspicion that the individual was engaged or about to engage in criminal activity.