What is a Frisk?
A frisk in the context of a law enforcement search is also known as a pat-down.
It is less intrusive than a full body search. The purpose of a frisk is to ensure an officer’s safety by confirming that a suspect encountered by police is not armed and dangerous.
The aftershocks still linger following U.S. Supreme Court Justice Sonia Sotomayor’s eruptive and indignant dissent in this case:
“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong…”
– Justice Sonia Sotomayor, US Supreme Court
The incident began with an unlawful police stop of a man leaving a private residence.
The suspect was arrested after the police officer learned the suspect had an outstanding warrant.
Illegal drugs were found in the suspect’s possession, after the officer searched him.
The search was conducted incidental to the arrest, as a result of the outstanding warrant for a traffic violation.
The U.S. Supreme Court decided that even though the stop was unlawful, it was not flagrant.
So they allowed the drug evidence to be admitted and used against the suspect to prosecute the illegal drug possession charges.
In this article we outline the case, the U.S. Supreme Court decision, and how it impacts your 4th Amendment rights, especially if you have an outstanding warrant for arrest. Continue reading
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.
Impact of Maryland v. King Ruling on Arizona: What it gives and what it takes.
Privacy rights were outweighed by law enforcement interests in the United States Supreme Court’s June 3rd ruling in Maryland v. King. In this case, the Court was divided 5-4 over the question of DNA sample collection. All states and the federal government require convicted felons to submit DNA samples to law enforcement. But this was the first case to look at whether even those who are merely arrested (and assumed innocent until proven guilty) can be required to submit their DNA to law enforcement.
The Supreme Court ruled that states may–without a warrant– routinely collect DNA samples from people arrested for a “serious crime.” This was a highly anticipated ruling because it is the Court’s first on the privacy of genetic information. The ruling focused on Maryland’s law, which requires DNA sampling of those arrested for serious crimes, supposedly for the purpose of identifying them. However, the case’s language was so broad that it opened the floodgates for all states to permit DNA sampling of people arrested, even if they are arrested only on a minor charge.
The case arose from a criminal defendant’s appeal after he was convicted for a felony only because the Maryland police were able to match his DNA in a federal database. After the defendant was arrested for assault, the police swabbed the defendant’s cheek to get a DNA sample and they submitted the sample to a federal DNA database. The swab was not necessary to prove the assault.
The federal database to which the sample was submitted matched the defendant’s DNA to DNA collected from a crime scene six years earlier. Because of the routine cheek swab, the defendant was convicted of the earlier serious crime.
The Maryland Court of Appeals threw out the defendant’s conviction on the grounds that a cheek swab violated Fourth Amendment rights against illegal search and seizure. Usually the State must obtain a warrant if it wants to conduct any kind of invasive physical testing. The State appealed the appellate ruling.
The Supreme Court’s majority opinion, written by Justice Kennedy, compared DNA sampling of the arrested to fingerprinting which is legal. The Court overturned the Court of Appeals. Justice Kennedy wrote that states could collect DNA from people arrested for “serious offenses.”
The majority opinion reasoned that Maryland’s law supported the well-established and legitimate governmental interest of identifying people in custody as opposed to solving crimes. The majority also reasoned that a cheek swab is minimally intrusive from a physical perspective.
Justice Scalia, joined by three liberal justices, wrote the dissent. He warned, “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
This ruling impacts all people in states that authorize DNA testing, including Arizona. At present, Arizona’s law enforcement is able to collect DNA from anyone imprisoned for a felony offense, including those on probation. However, Arizona has also passed legislation to allow for the collection of DNA from those who are merely arrested, not convicted, of a serious crime.
This group includes those who are arrested for certain sexual offenses, burglary, prostitution, and other serious, violent or aggravated offenses. Although this group represents a relatively narrow number of criminal defendants now, as Justice Scalia pointed out the Supreme Court’s ruling is broad enough that states could widen the net of people who are required to submit to DNA sampling. As Justice Scalia suggests, in the future, DNA sampling may be part of police booking procedure even in traffic cases.
Additional Resources
DNA Laws Database
Mesa Police Department
Mesa Municipal Court
The Verdict could have national impact on when law enforcement can collect DNA evidence from suspects.
On November 9, 2012, the United States Supreme Court agreed to hear a criminal DNA testing case, Maryland v. King (12-207), which could result in nation-wide impacts. The defendant’s DNA samples were collected immediately following his arrest. He was subsequently convicted of rape. King’s Attorney attempted to suppress the DNA evidence, on the grounds that it was taken unconstitutionally. The Maryland Court of Appeals agreed, and overturned King’s conviction. They ruled that suspects under arrest but not convicted, have more rights than convicted felons; and that DNA testing was more invasive than standard finger print evidence.
The State of Maryland disagreed, and appealed to the US Supreme Court to hear the case. The case is expected to be heard by the high court in June 2013.
DNA testing has been the subject of much controversy. Objection to the DNA testing of non-convicted suspects is that it is in violation of a person’s 4th Amendment Constitutional Right against unlawful search and seizures.
All states currently use DNA testing as an admissible investigative tool. Currently it is lawful in most states, including Arizona, to collect report and distribute DNA results for convicted felons. However, not all states allow collection, analysis, reporting, distributing, and use of DNA testing as evidence against first time criminal offenders, with no felony convictions.
DNA Testing Laws in Arizona
Arizona allows collection, reporting and distribution of DNA evidence from prison inmates and convicted felons. Criminal DNA samples are maintained by in a forensic data base by authorized Law enforcement agencies, and indexed by the FBI.
However, in recent years, Arizona also passed legislation allowing DNA to be collected from suspects who were arrested, but not convicted of a felony in specific situations.
Under Arizona Law A.R.S. 13-610 DNA may be collected from a suspect if they were arrested for serious, violent, and dangerous felony offenses on involving a victim.
The law allows for DNA testing in situations where the suspect was arrested for a criminal offense specified by law, even if they were not convicted of the crime. Examples of these offenses include but are not limited to sexual offenses and assault; burglary in the first or second degree; homicide; and other dangerous offenses involving victims.
Criminal Defense for Charges involving DNA cases
Anyone arrested for a serious or dangerous crime, should always consult a criminal defense attorney before pleading guilty. Felony convictions for these types of crimes, will result in years to life in prison, or even expose a defendant to the death penalty. A defendant should always invoke their right to retain qualified legal representation to defend their rights and charges. If DNA evidence was collected unlawfully it may lead to suppression of the evidence in favor of the defendant. If DNA evidence does not lead to a match of the suspect arrested, the charges may be dismissed or lead to a “not-guilty” verdict in a jury trial. The lawfulness or validity of DNA evidence should always be argued by a qualified criminal defense attorney.
Additional Resources:
• Arizona State Bar – Jury Instructions for Evidence
• United States Supreme Court – Maryland v. King
• US Supreme Court Orders – Petition Granted Maryland V. King, Alonzo J. (12-207)
Arizona Criminal Defense Attorney Blog