Thursday, May 19, 2011


One of the hallmarks of American justice is that sometimes the guilty go free, even when the court system knows the person is guilty.  This fact often makes prosecutors, judges, and citizens uncomfortable, but our U.S. Constitution demands it.  If police violate the Constitution in the course of their duties, even when the violation was not malicious, the guilty may go free. 

In the case of State v. Fisher, which was decided on May 19, 2011, the Arizona Supreme Court grappled with our pesky Constitution, specifically with the Fourth Amendment that grants citizens "[t]he right of the people to be secure in their persons, houses, papers, and effects, and against unreasonable searches and seizures."  Based on the Fourth Amendment, the courts have ruled that unless there is a recognized exception police must have a warrant to search a home. 

In this case, police were searching for a person suspected of an assault.  In the process of the search, police detained Fisher, and several other people, outside Fisher’s apartment.  Thereafter, the police entered his home without a warrant and found a duffel bag containing marijuana.  The Arizona Supreme Court reasoned that the apartment search was unconstitutional because police lacked reasonable suspicion and probable cause to search a home as the suspects were detained outside the home; accordingly, a warrant was required for the search.  The Arizona Supreme Court decided to exclude evidence found in the illegal search, meaning a jury will never hear of the evidence. 

The court further reasoned as follows: 

We likewise are aware of the high price of suppressing evidence. . . . The principal cost of applying the [exclusionary] rule is, of course, letting guilty and possibly dangerous defendants go free – something that offends basic concepts of the criminal justice system. . . .  But the right to privacy in one’s home is basic to a free society. Thus, specific facts, and not mere conjecture, are required to justify a protective sweep of a residence based on concerns for officer safety.  (Citations and quotations omitted).

The U.S. Constitution is a curious thing.