Arizona ruling overturns conviction of felon carrying gun

Michael Kiefer | The Republic | azcentral.com

Can police officers frisk anyone who appears to be carrying a gun?

On Thursday, the Arizona Supreme Court ruled that they cannot unless they think the person is engaging in criminal behavior and is armed and dangerous. As a result, the court overturned the conviction of a felon caught carrying a gun.

According to court records, in October 2010, police officers saw Johnathon Serna talking to a woman on the street in a "gang neighborhood." When the woman walked away, they approached Serna, who they described as "very cooperative and polite."

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.

At trial, Serna's attorneys claimed that Serna's Fourth Amendment rights against illegal search and seizure had been violated, but the judge rejected the claim, and the Arizona Court of Appeals upheld his conviction.

Serna was sentenced to 2 1/2 years in prison. According to Arizona Department of Corrections records, he did the time and was released in December 2013.

But on Thursday, the Arizona Supreme Court threw out his sentence and his conviction.

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."