Right to Privacy

The right to privacy is an interesting notion.  Nowhere in the United States Constitution is it explicitly mentioned.

That has not stopped federal courts from finding a constitutional right implied through several several different mediums.  Social customs are one avenue from which courts have inferred a privacy right.  “We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system.”  Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (holding there is a privacy right in marital relations).  Privacy is also implied through several of the Bill of Rights.   The First Amendment the “vital relationship between freedom to associate and privacy in one’s associations.” NAACP v. Alabama ex. rel Patterson357 U.S. 449, 462 (1958); see also Stanley v. Georgia, 394 U.S. 557, 564 (1969).  The Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion.” Katz v. United States, 389 U.S. 347, 350 (1967).  The Fifth Amendment privilege against self-incrimination reflects right of each individual to a private boundary.  See generally Murphy v Waterfront Comm’n of New York Harbor, 378 U.S. 52 (1964).

Arizona takes a different approach.  Privacy is expressly mentioned in the State Constitution.

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

– Ariz. Const. art. 2, § 8 – The Right to Privacy

The Arizona privacy section seems to reflect at least a similar intent to the Fourth Amendment of the United States Constitution.  See U.S. Const. amend. IV; See also Katz v. United States, 389 U.S. 347, 350 (1967). This section was not intended to give rise to private cause of action between private individuals, but was intended as prohibition on the State and has the same effect as the Fourth Amendment of the Constitution of the United States.”  Cluff v. Farmers Ins. Exchange, 460 P.2d 666, 669 (Ariz. App. Div.1 1969). 

The language is different between the state and federal versions, so there may be differences between the two.  At least at one point, state case law thought there was a difference.  “State constitutional privacy provision is broader than federal Fourth Amendment protection against searches and seizures.” Moule’ By and Through Moule’ v. Paradise Valley Unified School Dist., 863 F.Supp. 1098, (D. Ariz. 1994) (nothing the federal protections apply to persons, houses, papers, and effects and must be fit in one of those categories, while private affairs is a much broader concept) rev’d on other grounds 66 F.3d 335 (9th Cir. 1995) (stating the Arizona right to privacy v. the federal right to privacy was insufficiently briefed, and the subject matter was a state court issue).  The dicta of another federal district court opinion provides some more clarity.

Where state and federal constitutional provisions are not coterminous, courts are directed to attempt to avoid federal constitutional questions by instead resolving the case on state constitutional grounds, if possible. See Ellis v. City of La Mesa, 990 F.2d 1518, 1524 (9th Cir. 1993). Here, because the Arizona Constitution is more protective of the right to be free from searches and seizures than the Fourth Amendment.

Friendly House v. Whiting, 2010 U.S. Dist. LEXIS 145778, 109 n. 11 (D. Ariz. Oct. 8, 2010).

It is quite possible that the Arizona Constitution protects a greater zone of privacy than it’s federal counterpart. The issue has not been litigated much, and when it is litigated the narrower federal standard is first applied, as in the Friendly House case.  If a violation of privacy is found under the federal standard then the courts do not need to proceed.  There remains quite a bit of uncertainty about what particularly is expansive about the Arizona protections.  See e.g. State v. Dean, 76 P.3d 429 (Ariz. 2003) (where only a federal right to privacy was considered and not an additional independent state right).

***There is much more analysis that is owed to this subject.  This page will be periodically updated with more case law and analysis.  This at least can serve as a foundation to start the discussion.

United States Constitution

U.S. Const. amend. IV – Search and Seizure

Arizona Constitution

Ariz. Const. art. 2, § 8 – The Right to Privacy

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A Discussion About the Law in Arizona

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