You can simply walk away when cops tell you to put your hands on your head

[gryphon]

Or so said a lower court in Arizona.  The AZ Supreme Court said a reasonable person would not think it was okay to simply walk away from a police order like that.  I'd like to see the original, lower court argument, but it's probably not (readily) available.  I will probably try to find the AZSC decision, though.

In 2010 a man named Johnathon Serna was told by cops to "put your hands on your head" and they frisked him. The defense argued that the cops violated his 4th Amendment rights, but the prosecution argued that people don't have to obey the cops, and that Serna could have simply refused to put his hands on his head and walked away. The lower court agreed and upheld the arrest saying Serna "voluntarily" obeyed the cops, so it was consensual.

"Serna only had to say that he was not going to talk to the police and could have walked away after they told him to put his hands on his head."

However, the Arizona Supreme Court disagreed and said, "A reasonable person would not have felt free to disregard such a command from a law enforcement officer." They agreed Serna's constitutional rights had been violated and threw out the sentence and conviction.

http://www.azcentral.com/story/news/arizona/politics/2014/08/07/serna-arizona-supreme-court-frisking-felon-gun/13734753/

[CitizensHaveRights]

Hold it, was the search even necessary to arrest him for concealed carry?
They saw a bulge, asked him if he had a gun, and he said yes.
That's not consent to search, but it's an open confession of concealed carry.

The question in my mind would be whether knowledge that a person was CC in AZ in 2010 constituted probable cause.
If AZ was a Constitutional Carry state at the time, they wouldn't even have reasonable suspicion for a Terry Stop.
If AZ was a carry license state, then they could ask him to produce a license, and arrest him for CC if he could not. In the course of the arrest they'd have to take possession of the gun.

I just checked, AZ's Constitutional Carry was signed into law on 4-16-2010 to take effect July 29, and the arrest took place in October. So the only ways to get a conviction would be with an idiot defense attorney or a copsucking judge.

I have a feeling the trial court didn't issue a published opinion, but I can guess what happened.

Defense argues that defendant did not consent to a search.
Persecuting attorney came up with a totally convoluted argument to ascribe 'consent to search' to the defendant's actions.
The trial court ruled against the defense, either simply because the trial judge is a copsucker, or simply because the trial judge didn't want to let an obviously guilty defendant 'off on a technicality'. (I'm thinking the latter, but when you stretch the bounds of reason to excuse LEO actions which invalidate the arrest, that makes you a copsucker anyway)

[gryphon]

I wonder how MI LEOs would behave if they told someone to put their hands on their head and the guy said FOAD and walked away.

This coverage of the story states that an officer can, for example, ask for consent to remove a gun for the duration of the encounter, but absent that consent they can't take it without establishing a reasonable suspicion of criminal activity.  Interesting since other courts have ruled otherwise.

http://www.copamonitor.com/news/around_arizona/article_913efb34-1f32-11e4-a689-0019bb2963f4.html

[CitizensHaveRights]

I always assumed a command like Put your hands on your head! carried the implied threat or I'll shoot you!.

Anybody who looks at it that way could never consider it consensual to put your hands on your head.

[gryphon]

AZ CoA decision affirming lower court conviction.  Good "discussion" of 4A and officer actions there in the dissenting opinion beginning in paragraph 26.

http://statecasefiles.justia.com/documents/arizona/court-of-appeals-division-one-published/1-ca-cr-11-0675.pdf

AZ SC decision overturning lower court and CoA.

http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2014/CR130306PR.pdf

[linux203]

I always assumed a command like Put your hands on your head! carried the implied threat or I'll shoot you!.

Same applies to "Give me your wallet."

[CitizensHaveRights]

Thanks for the cites, Dan.
In reading the CoA decision, I keep thinking "It's OK because the guy was in a neighborhood frequented primarily by racial minorities. If he lived in a gated community we'd allow him more rights."

Judge Norris chewed them a new one from paragraph 26-60, for pretty much the same thing I was thinking. Being stuck in a high crime neighborhood does not make you a criminal. (but I bet I know what color the defendant is)

If they hadn't been in such an all-fired hurry to make the encounter non-consensual (put your hands on your head!), they could have calmly asked him to self-incriminate as follows:

"Do you have a gun or illegal drugs?"
"Yep"
"Which?"
"Gun"
"Do you have any felony convictions?"
"Yep"
"You're under arrest".

Note that all the quotes above actually happened, except for asking him if he was claiming drugs, gun or both. They ascertained that by getting his hands up and grabbing in his pants.
He voluntarily confessed to having a gun, then confessed to having a felony record.
The questioning about a felony record violated Miranda v Arizona in my opinion (funny that he was in Arizona when it happened). He was questioned during involuntary detainment without being offered the chance to remain silent or the chance to consult an attorney.

I'd say they were golden if they hadn't gone nuts over the fact that a friendly nonthreatening talkative guy admitted to CC in a state where any non-prohibited person can lawfully CC. They had the idiot talking, and their next question was going to hang him, so why blow the legality of the encounter right before asking him the prizewinning question???