Arizona Supreme Court Limits Warrantless Home Searches

Police officers are not exempt from search warrant requirements, in order to perform community caretaking duties.

Under the Fourth Amendment of the U.S. Constitution and the Arizona Constitution, you have a right to be free from unreasonable searches and seizures.
This means that in most cases, a warrant is required to search your home, with few exceptions.

The exceptions include situations where “exigent circumstances” exist.

This allows police to make a warrantless entry when they have probable cause to arrest a suspect who has fled, or to stop the imminent destruction of evidence.

Another exception is that the police may make a protective sweep incident to a lawful arrest.

Still another exception is an entry due to an objectively reasonable basis for believing someone within the house needs immediate aid.

Recently, the Arizona Supreme Court limited warrantless searches in connection with the “Community Caretaking Exception,” which is the topic of this discussion.

The Incident

In this case, police officers and paramedics went to the defendant’s residence after receiving calls from neighbors, complaining that the defendant was behaving erratically.

When police and paramedics arrived, the defendant told them that he and his family had been handling up to seven pounds of mercury inside the home, which was being kept in the home in a glass jar.

The paramedics were concerned about contamination, based on the defendant’s statements and called the Fire Department to the scene.

The Fire Department ordered the defendant to be “rinsed off.” The man cooperated and was transported to the hospital for further examination.

After the suspect was taken to the medical facility, the firefighter, and police officer decided to enter he home to gather information about the mercury, with the belief that medical personnel may need this information for the man’s treatment.

The officer also reported that they felt it was necessary to enter in order to find out what they “were actually dealing with.”

After entering the residence, the officer detected an odor of marijuana, which he traced to the utility room. There the officer discovered several marijuana plants.

The officer then left and returned to the home with a valid search warrant.

Upon return, the officer re-entered the home and seized the Marijuana.

The defendant was then charged with production of marijuana and possession of drug paraphernalia.

Even though possession of mercury is not unlawful, no mercury was found.

However, the officer saw “indications” of it in the hallway on the floor, which did not pose a threat. The Fire Department simply concluded just needed to be cleaned up.

Court Proceedings and Opinions

The trial court determined there were “exigent circumstances” for the warrantless search, admitted the marijuana as evidence, and ultimately found the defendant guilty.

The defendant appealed on the grounds that the motion to suppress the evidence should have been granted, and not denied.

The Court of Appeals agreed that the warrantless search was not justified and did not fall within any of the exceptions to a warrantless search of a suspect’s home.

The Appeals court reversed the lower court’s decision and held that no exceptions applied to the incident that justified a warrantless search and seizure into the home.

The State prosecution then asked the Arizona Supreme Court to review the issue of whether the “community caretaking exception” applied.

The AZ Supreme Court held that neither exception of exigent circumstances or emergency aid applied to this case, and the warrantless entry into the home was lawful.

The court explained that although police were concerned about the large quantity of mercury that the suspect claimed was in the house, mercury possession isn’t unlawful.

There was no evidence that the presence of mercury presented an immediate threat.  In order for exigent circumstances to exist, the police would have to have had probable cause that there was criminal activity in the home, not just the possession of mercury.

The Court acknowledged the police officers’ various functions in the community that involve caretaking and civil services.

But that this does not extend the police officers exemptions from the warrant requirement simply because they are engaged in those functions.

The Court differentiated an earlier case in which community caretaking applied as an exception on the grounds that it involved an automobile, rather than a house.

Citing precedent cases involving search and seizure controversies, the Arizona Supreme Court held that there is a greater expectation of privacy in a house than an automobile.  Therefore, the community caretaking exception does not apply to homes.

Specifically, the Court explained that it reached the conclusion it did because the Arizona Constitution Article 2, § 8 more explicitly protects homes than the federal constitution does.

The Court did not explicitly consider the complications presented by A.R.S. 36-603. Under that Arizona law, when a county board of health or local health department in finds it necessary to enter a building in order to prevent or remove a nuisance and is refused entrance, an officer of the department can make a complaint to the justice of the peace.

Under those circumstances, the justice of the peace may then issue a warrant directing the peace officer to destroy or remove the nuisance during daylight hours.

However, based on this ruling, any evidence of criminal activity obtained during such an entry would not be admissible.

Arizona Privacy Rights 

“The Arizona Constitution ensures that persons shall not be disturbed in their private affairs or their home invaded without lawful authority”.

In this case, the Arizona Supreme Court analyzed the language under the Arizona Constitution, specifically those involving Privacy Rights.

Article II section 8 of the Arizona Constitution reads:

“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

The Conclusions of the AZ Supreme Court were that Arizona’s affords more protections in its specific language than the US Constitution.

US Constitution Privacy Rights 

The US Constitution’s Fourth Amendment relating to privacy rights extends the following protections:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.

Whereby, the Federal law limits the protections for persons to be secure in their houses, and against unlawful search and seizures.

In contrast, the Arizona Constitution ensures that persons shall not be disturbed in their private affairs or their home invaded without lawful authority.

Thus, holding that the Arizona Constitution affords greater protections in some circumstances citing Arizona v. Bolt. 

Community Caretaking Doctrine – Why it did not Apply      

The “Community Caretaking Doctrine” is one exception to the search warrant requirement.

It enables officers to conduct warrantless searches of a vehicle under particular circumstances.

This exception to a warrant stems from a Federal Case ruling over 40 years ago.

And although controversial to this day, it has been recognized by many state courts as a valid exception to the US Constitution’s Fourth Amendment related to search and seizures.

The Doctrine stemmed from a case involving a police officer who was arrested for drunk driving.  During the DUI stop the driver fell into a coma.

The officer that stopped him searched the vehicle to find the police officer’s gun to remove it from the vehicle.

During the search the police found blood covered belongs including a towel, floor mat, and night stick.

Charges for first-degree murder were subsequently brought.

The defendant challenged admittance of the evidence in trial because the officer did not have a search warrant and did not provide consent for the vehicle to be searched.

The US Supreme Court held that the search did not require a warrant and was admissible since the investigative officer was performing a community caretaking function.

This after police searched inside the vehicle and trunk to find the impaired police officer’s gun.

The Arizona Supreme Court decided that the State prosecution was not persuasive in arguing that the community caretaking exception should apply to homes as well as vehicles.

The AZ Supreme Court held that the adverse consequence of extending this doctrine to apply to home searches would significantly reduce privacy protections currently afforded by the Arizona Constitution.

The Justices pointed out that this does not prohibit current warrantless exceptions which include exigent circumstances, and emergencies where immediate attention is needed.

The Arizona Supreme Court also held that the community caretaking exception applies to auto searches only and not to homes.

Marijuana Laws in Arizona

Though the Court’s ruling in this case provides a crucial protection in home search and seizure cases, it does not prevent police from obtaining a warrant to search a person’s residence if they have probable cause to do so.

Production and possession of Marijuana is illegal in Arizona, outside of the Medical Marijuana laws.

Violations are taken very seriously, and most Marijuana offenses are classified as felonies.  Penalties for Felonies in Arizona call for prison terms.

If a person is found to be in possession of less than two pounds of marijuana, they will  be exposed to our months to two years in prison and a felony record.

If the police obtained the evidence illegally, however, your attorney may be able to get the charges dismissed.

However, if an exception to the warrant rule does not exist in a criminal case involving the discovery of marijuana in your home, as in the above-described case, your attorney will have strong grounds to ask that the evidence be suppressed.

Criminal Defense Attorney Mesa AZ

It is important in any criminal or DUI case to retain an effective legal advocate who will protect your rights and defend your charges.

If you are charged or arrested for marijuana possession or another drug crime, you should consult with an experienced Phoenix felony defense attorney to discuss your matter and your options for a defense as soon as reasonably possible.

James Novak is a highly skilled former prosecutor who is now a criminal defense attorney. Contact James Novak at 480-413-1499 for a confidential and free initial consultation if you face active criminal charges in Phoenix, Tempe, Mesa, Chandler, Gilbert, Scottsdale, or other surrounding East Valley Cities within Maricopa County.

Additional Resources

Arizona 13-3925

Requirements and Exceptions to Lawful Search Warrants in Arizona

Arizona 13-3912

Other Articles of Interest

Violations of “Search and Seizure” Laws: How they Impact Prosecution, July 23, 2013

U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested, June 9, 2013

Yes, You Have Constitutional Rights At An Arizona Checkpoint, July 5, 2014


Contact Information