Defendant was in a high crime and gang infested area, and the police encountered him. He was “polite and courteous” and doing nothing wrong. The officers noticed a bulge at his waistband, and they asked if he was armed. He admitted he was, and they told him to put his hands on his head, and he did. They relieved him of a gun in a holster. It turned out he was a felon. The search was reasonable under an Arizona statute that allowed officers to neutralize weapons for their own safety. State v. Serna, 666 Ariz. Adv. Rep. 17, 307 P.3d 82 (App. 2013):
P2 On October 25, 2010, at approximately 10:00 p.m., two police officers were in their patrol car driving on North 28th Avenue in Phoenix. Officers described the area as “high crime,” a “gang neighborhood” where “violence takes place,” and having “numerous drug complaints.” The officers saw Serna and a woman standing in the middle of an intersecting street, Garfield. The officers turned their car onto Garfield and after they did so, Serna and the woman separated. The woman walked north; Serna walked south to a friend’s house. Officers described this as a common stratagem in the area, as persons disperse to avoid contact with law enforcement inquiries into potential criminality.
P3 The officers stopped their car in front of the house and got out. One of the officers called to Serna to get his attention. Serna turned around and walked toward the officers. Serna was “very cooperative and polite.” The officer who called out to Serna asked him if he lived at the house. Serna responded the house belonged to a friend. The officer then observed a bulge on Serna’s waistband and asked him if he had any firearms or illegal drugs. 1 Serna said yes. The officer then ordered Serna to place his hands on top of his head and removed a gun from a holster on Serna’s waistband.
. . .
P23 Here, the officers approached Serna at night in a gang-ridden, dangerous, and violent area of Phoenix. After the officers noticed the “bulge” on Serna’s right side, they asked Serna if he was armed and, when he admitted he was, had him place his hands on his head 7 and removed a gun from a holster that was secured to Serna’s waistband. The officers testified that in dangerous neighborhoods like this one, officers typically do not talk with individuals “when they have a gun on them because it could be hazardous for you.”
P24 Considering these circumstances in light of all the case law, especially Orman and Mimms, we hold that the superior court correctly denied Serna’s motion to suppress the gun. 8 This conclusion is consistent with the public policy of the legislature as to how officers should handle interactions with armed persons. The legislature in 2010 amended the misconduct involving weapons statute to state that “[i]f a law enforcement officer contacts a person who is in possession of a firearm, the law enforcement officer may take temporary custody of the firearm for the duration of that contact.” A.R.S. § 13-3102(K). Our holding gives police enough flexibility to react reasonably to whatever situation confronts them while still safeguarding the Fourth Amendment protections of lawfully armed individuals.
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
