Today, the Goldwater Institute released our new policy report, The Arizona "Private Affairs" Clause: Time for a Second Look? We also filed a brief in an important case involving the Clause, called State v. Mixton, urging the Arizona Supreme Court to review the case and consider the question of whether and to what degree the state constitution provides stronger protections against warrantless seaches than does the federal Constitution.
As it stands, Arizona law includes a truly weird anomaly: the Arizona Constitution's "Private Affairs" Clause was copied from Washington State's Constitution, just as several other clauses were. But although Arizona courts consider Washington State precedent when interpreting those other clauses, it largely ignores Washington State precedent when interpreting the "Private Affairs" Clause--and instead follows federal courts...even though federal courts are following the federal Fourth Amendment...which includes none of the language of the "Private Affairs" Clause. For example, the Fourth Amendment uses the word "unreasonable," with the result that lots of federal search-warrant jurisprudence involves questions about whether a search was reasonable or not. But the Arizona and Washington constitutions don't use the word "reasonable" at all. Instead, they forbid any search "without lawful authority," regardless of how reasonable it might be. Washington courts have emphasized this distinction a lot. But Arizona courts have ignored it, and have copied and pasted federal search and seizure law instead of following the actual language of the state Constitution. In our new policy report (adapted from my more in-depth Arizona State Law Journal article) I explain why that should stop--and why Arizona courts should apply the expansive protections promised in the state's fundamental law.
I talked about this issue not long ago with Amy Peikoff, and you can listen to that interview here for more details.
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