IN THE SUPREME COURT
STATE OF ARIZONAWILLIAM MIXTON,Supreme Court
No. CR-19-0276-PR

Petitioner,
Court of Appeals
Case No. 2 CA-CR 2017-0217

v.
STATE OF ARIZONA,

Pima County Superior Court
Case No. CR2016038001

Appellee.

BRIEF OF AMICUS CURIAE GOLDWATER INSTITUTE IN SUPPORTOF PETITION FOR REVIEW AND CROSS-PETITION FOR REVIEWFILED WITH CONSENT OF ALL PARTIES

Scharf-Norton Center for
Constitutional Litigation at the
GOLDWATER INSTITUTE
Timothy Sandefur (033670)
500 E. Coronado Rd.
Phoenix, Arizona 85004(602) 462-5000
Litigation@goldwaterinstitute.org
Counsel for Amicus Curiae Goldwater InstituteTABLE OF CONTENTSTABLE OF CONTENTS ........................................................................................ i
TABLE OF AUTHORITIES ................................................................................. ii
IDENTITY AND INTEREST OF AMICI CURIAE ............................................ 1
INTRODUCTION AND SUMMARY OF ARGUMENT .................................... 1
REASONS TO GRANT THE PETITION ............................................................ 4
I. Lower courts need guidance regarding the Private Affairs Clause. ................. 4
II. Washington Private Affairs Clause precedent should guide Arizona courts. ... 9
A. Washington’s superior objective approach .................................................. 9
B. Third Party Doctrine in Washington law.................................................... 11
C. The Good Faith Exception in Washington law .......................................... 13
CONCLUSION .................................................................................................... 16i

TABLE OF AUTHORITIES
Cases
Bailey v. Myers, 206 Ariz. 224 (App. 2003) ..........................................................2, 7
Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) ..................................................6
Carpenter v. United States, 138 S. Ct. 2206 (2018) ......................................... 16, 17
Clouse ex rel. Clouse v. State, 199 Ariz. 196 (2001).................................................2
Desert Waters v. Super. Ct., 91 Ariz. 163 (1962) ......................................................8
Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, 245 Ariz. 397 (2018)................................................................................................................................1
Hurtado v. People of State of Cal., 110 U.S. 516 (1884) ..........................................6
Leach v. Reagan, 245 Ariz. 430 (2018) .....................................................................1
Malmin v. State, 30 Ariz. 258 (1926) ....................................................................7, 8Mass. v. Sheppard, 468 U.S. 981 (1984) .................................................................13
McLean v. Territory, 8 Ariz. 195 (1903) ...................................................................6
Molera v. Reagan, 245 Ariz. 291 (2018) ...................................................................1
Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350 (1989)...................................................................................................................... passim
People v. Caballes, 851 N.E.2d 26 (Ill. 2006) ...........................................................6
People v. Sporleder, 666 P.2d 135 (Colo. 1983) .....................................................11
Smith v. Maryland, 442 U.S. 735 (1979) .............................................................4, 11
State v. Afana, 233 P.3d 879 (Wash. 2010) .................................................. 3, 14, 15
State v. Ault, 150 Ariz. 459 (1986) ............................................................................5ii

State v. Gunwall, 720 P.2d 808 (Wash. 1986) ........................................ 6, 11, 12, 13
State v. Hernandez, 244 Ariz. 1 (2018) .....................................................................1
State v. Hinton, 319 P.3d 9 (Wash. 2014)........................................................ passim
State v. Ingram, 914 N.W.2d 794 (Iowa 2018) .........................................................8
State v. Jean, 243 Ariz. 331, cert. denied, 138 S. Ct. 2626 (2018) .......................1, 6
State v. Johnson, 220 Ariz. 551 (App. 2009) .............................................................6
State v. McNeill, No. 1 CA-CR 18-0911, 2019 WL 4793121 (Ariz. App. Oct. 1,
2019) ...................................................................................................................1, 3
State v. Miles, 156 P.3d 864 (Wash. 2007) ....................................................... 10, 13
State v. Mixton, No. 2 CA-CR 2017-0217, 2019 WL 3406661 (Ariz. App. July 29,2019) .......................................................................................................................4
State v. Myrick, 688 P.2d 151 (Wash. 1984) .......................................................3, 10
State v. Nall, 72 P.3d 200 (Wash. App. 2003) .........................................................14
State v. Peoples, 240 Ariz. 244 (2016) ......................................................................5
State v. Reeder, 365 P.3d 1243 (Wash. 2015) .........................................................12
State v. White, 640 P.2d 1061 (Wash. App. 1982) ..................................................15
United States v. Leon, 468 U.S. 897 (1984) ............................................................13
United States v. Miller, 425 U.S. 435 (1976) ......................................................4, 11
Other Authorities
Joan Greenberg Levenson, The Good Faith Exception, 52 Brook. L. Rev. 799(1986)....................................................................................................................15
Monu Bedi, Facebook and Interpersonal Privacy, 54 B.C. L. Rev. 1 (2013) ..........5iii

Sanford Pitler, The Origin and Development of Washington’s Independent
Exclusionary Rule, 61 Wash. L. Rev. 459 (1986) ................................................14
Timothy Sandefur, The Arizona “Private Affairs” Clause, 51 Ariz. St. L.J. 723(2019)....................................................................................................... 1, 2, 5, 16
Constitutional Provisions
Ariz. Const., art. II § 8 ...............................................................................................2iv

IDENTITY AND INTEREST OF AMICUS CURIAE
The Goldwater Institute is a nonpartisan public policy and researchfoundation dedicated to advancing the principles of limited government andpromoting the faithful enforcement of state constitutional protections. Institutescholars have published important research on the history and interpretation of thePrivate Affairs Clause. See Timothy Sandefur, The Arizona “Private Affairs”
Clause, 51 Ariz. St. L.J. 723 (2019). Through its Scharf-Norton Center for
Constitutional Litigation, the Institute frequently appears as Amicus Curiae in thisCourt, see, e.g., Leach v. Reagan, 245 Ariz. 430 (2018); Hopi Tribe v. Arizona
Snowbowl Resort Limited Partnership, 245 Ariz. 397 (2018); Molera v. Reagan,
245 Ariz. 291 (2018), and it recently filed amicus briefs in State v. Hernandez, 244
Ariz. 1 (2018), and State v. McNeill, No. 1 CA-CR 18-0911, 2019 WL 4793121(Ariz. App. Oct. 1, 2019), to address issues arising under the Clause.
INTRODUCTION AND SUMMARY OF ARGUMENT
Arizona courts have long claimed that the state Constitution protects
individual rights more than the federal Constitution does. Indeed, this Court has
explained that state courts have a duty to “first consult our constitution …
whenever a right that the Arizona Constitution guarantees is in question.”
Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350, 356 (1989)(emphasis added); see also See State v. Jean, 243 Ariz. 331, 353 ¶ 92, cert. denied,1

138 S. Ct. 2626 (2018) (“[W]e frequently may find that our [state] constitution
provides greater protections of individual liberty and constraints on government
power … because we more strictly construe such protections that exist in bothconstitutions.”) (Bolick, J., concurring in part, dissenting in part).
Nowhere is there a stronger basis for doing so than the Private Affairs
Clause, Arizona Constitution, Article II, Section 8. It differs from the Fourth
Amendment in every significant respect. See Sandefur, supra, at 723-47. Its text
is entirely different from that Amendment. It was written a century and a half afterthat Amendment. Its authors had different concerns in mind. There is simply nojustification for following federal Fourth Amendment jurisprudence when applying
the Private Affairs Clause.
In fact, because the Clause was copied from the Washington Constitution,
id. at 723, Arizona courts should consult that state’s interpretations of the Clause.
They already consult Washington jurisprudence to interpret other provisions of the
Arizona Constitution that were modeled on Washington’s. See, e.g., Bailey v.
Myers, 206 Ariz. 224, 229–30 ¶ 22 (App. 2003) (eminent domain); Clouse ex rel.
Clouse v. State, 199 Ariz. 196, 200 ¶ 17, n.9 (2001) (state immunity); Mountain
States Tel. & Tel. Co., 160 Ariz. at 355 (free speech). Yet they have not done sowith regard to the Private Affairs Clause—and have never explained why. They2

have instead virtually always followed federal jurisprudence1—which is arbitrary,
because, among other things, that jurisprudence interprets wholly different
language, such as “unreasonable,” a word that does not appear in the Private
Affairs Clause.
Washington courts, by contrast, have fashioned a robust and effective
Private Affairs jurisprudence, and decided cases that address issues presented here:
the Third Party Doctrine and the Good Faith Exception. See, e.g., State v. Hinton,
319 P.3d 9, 15 ¶ 17 (Wash. 2014) (Third Party), State v. Afana, 233 P.3d 879, 884–
85 ¶ 16 (Wash. 2010) (Good Faith). Washington precedent is superior because it isbased on the actual language of the Private Affairs Clause, and lacks the
subjectivity and mutability of Fourth Amendment doctrine. See State v. Myrick,688 P.2d 151, 154 (Wash. 1984) (Private Affairs jurisprudence “is not confined tothe subjective privacy expectations of modern citizens who, due to well publicizedadvances in surveillance technology, are learning to expect diminished privacy inmany aspects of their lives.”).

1

In its recent decision in State v. McNeill, No. 1 CA-CR 18-0911, 2019 WL
4793121, at *2 n.2 (Ariz. App. Oct. 1, 2019), for example, the Court of Appeals
chose not to address the Arizona constitutional claims the defendant raised,because it resolved the case on federal grounds. This is directly contrary to thisCourt’s instruction that lower courts should “first consult our constitution.”
Mountain States Tel. & Tel. Co., 160 Ariz. at 356 (emphasis added).
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Amicus urges the Court to review this case to place Arizona Private Affairs
jurisprudence on the right track. The court below was right to independently
interpret the Clause. But it erred in not following Washington jurisprudence.
While Washington precedent obviously is not binding, it is more applicable thanfederal jurisprudence, and, without being unduly burdensome on law enforcement,
better protects citizens against warrantless searches.
REASONS TO GRANT PETITION
I.

Lower courts need guidance regarding the Private Affairs Clause.
The disarray in the decision below illustrates the need for this Court’s

guidance. Out three judges, two filed partial dissents—an unusual circumstancethat reveals the necessity of Supreme Court review. Moreover, such review is
warranted because Arizona courts have failed to develop a rational Private Affairs
Clause jurisprudence. The court below was correct that there is increasing need toaddress the scope of that Clause “in the internet era,” State v. Mixton, No. 2 CACR 2017-0217, 2019 WL 3406661, at *9 ¶ 27 (Ariz. App. July 29, 2019), andparticularly to review the Third Party Doctrine and Good Faith Exception underthat Clause.
The Third Party Doctrine, fashioned in the days of rotary telephones (Smith
v. Maryland, 442 U.S. 735 (1979)) and hand-written bank orders (United States v.
Miller, 425 U.S. 435 (1976)), is out of step with an era in which “almost all4communications … including messages over such sites as Facebook [or] Gmail …
are stored for various lengths of time on third party servers or Internet service
providers.” Monu Bedi, Facebook and Interpersonal Privacy, 54 B.C. L. Rev. 1, 2
(2013). As the court below observed, federal Third Party Doctrine appears to give
government “unfettered” power to obtain such information. 2019 WL 3406661 at*10 ¶ 29.
But there is a broader issue. Although this Court has acknowledged that thePrivate Affairs Clause provides greater protections than the Fourth Amendment,see, e.g., State v. Ault, 150 Ariz. 459, 463 (1986), it has not given effect to thatpromise. Instead, it has largely copied federal Fourth Amendment jurisprudence.
See, e.g., State v. Peoples, 240 Ariz. 244, 247–48 ¶ 9 (2016). This is profoundly
wrong. The Arizona Constitution uses entirely different language than the Fourth
Amendment, was written during a different era, and was drafted with the intentionof not simply echoing that Amendment, but instead applying stronger, state-based
protections. Sandefur, supra, at 724–36. It was copied from the Washington
Constitution, id. at 724, and was designed to combine then-existing Fourth
Amendment guarantees with additional, new protections for “private affairs”—aterm that largely referred to records of business transactions between private

5parties. Id. at 729-36.2 The Clause makes no reference to reasonableness, but
focuses solely on the lawfulness of the government’s actions.3
Obviously, when the wording of two constitutions is different, that is bothnecessary and sufficient for interpreting them differently. State v. Gunwall, 720
P.2d 808, 812 (Wash. 1986); People v. Caballes, 851 N.E.2d 26, 31 (Ill. 2006). An
independent Arizona jurisprudence of Private Affairs is also mandated by thisCourt’s duty to effectuate the Arizona Constitution. Mountain States Tel. & Tel.,
160 Ariz. at 356.
Most importantly, the Private Affairs Clause does not include the word
“unreasonable.” The U.S. Constitution does, and, consequently, “reasonableness”
is the touchstone of Fourth Amendment jurisprudence. Brigham City, Utah v.
Stuart, 547 U.S. 398, 403 (2006). But the Arizona Constitution forbids any searchthat lacks lawful authority, regardless of whether it is reasonable. Jean, 243 Ariz.
at 354 ¶ 94 (Bolick, J., concurring).

For this reason, Arizona courts are wrong to say that the Clause’s stronger
protections only apply to home searches. See, e.g., State v. Johnson, 220 Ariz.
551, 557 ¶ 13 (App. 2009). On the contrary, the Clause expressly applies both tothe home and to private affairs.
3
For the same reason, the term “lawful authority” in the Clause must be interpreted
in light of the concept of “lawfulness” that prevailed when the Arizona
Constitution was ratified. At that time, the concept of “lawfulness” was widely
understood to include the protections today referred to as “substantive” as well as“procedural” due process. See generally Hurtado v. People of State of Cal., 110
U.S. 516, 520–37 (1884); McLean v. Territory, 8 Ariz. 195, 201 (1903).
2

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Yet Arizona courts have illogically and arbitrarily failed to respect theseprinciples. In Malmin v. State, 30 Ariz. 258, 261 (1926), this Court admitted thatthe state and federal constitutions use “different … language,” yet it followed
Fourth Amendment precedent anyway, because the two have “the same generaleffect and purpose.” That is simply not adequate justification for disregarding the
textual differences. To interpret different language as though it were identical, justbecause they have the same “general” purpose, would be like interpreting the
Arizona Constitution’s protections for free speech as though they were identical to
the First Amendment, or its eminent domain provisions as though they wereidentical to the Fifth Amendment. Yet Arizona courts do not do that. Both of
those provisions, like the Private Affairs Clause, were copied from the Washington
Constitution—and Arizona courts rightly consult Washington precedent wheninterpreting those clauses. See, e.g., Bailey, 206 Ariz. at 229–30 ¶ 22; Mountain
States Tel. & Tel. Co., 160 Ariz. at 355. There is no justification for failing to do
likewise with regard to the Private Affairs Clause.
Obviously, Washington precedent is not binding, but it is persuasive, and thefact that the text of Washington’s Private Affairs Clause is identical and Arizona’s
text was specifically based on Washington’s, is reason enough to consult
Washington precedent. True, if there were reason to believe that the authors andratifiers of Arizona’s Clause did not mean for it to be interpreted like7

Washington’s, then ignoring Washington precedent would be reasonable. In
Desert Waters v. Super. Ct., 91 Ariz. 163, 168-69 (1962), this Court engaged inthat analysis. But the Court has never performed that analysis with regard to thePrivate Affairs Clause, or given any reason for failing to follow Washington
precedent. And the rationale it has given for following federal jurisprudence—that
the Fourth Amendment and the Private Affairs Clause have “the same generaleffect and purpose,” Malmin, 30 Ariz. at 261—is inadequate. The wording isdifferent; the interpretation should be different.
Arizona’s founders “must have intended the Arizona declaration of rights tobe the main formulation of rights and privileges,” because “Arizona enacted its
declaration of rights before the United States Supreme Court adopted the doctrineof incorporation.” Mountain States Tel. & Tel., 160 Ariz. at 356. What’s more,
copying-and-pasting federal precedent means outsourcing state law to federal
judges who are not accountable to Arizonans and who do not realize that byinterpreting the Fourth Amendment, they are, in effect, fashioning Arizona law.
The consequence of the present approach is to “allow the words of our [Arizona]
Constitution to be ‘balloons to be blown up or deflated every time, and precisely inaccord with the interpretation of the U.S. Supreme Court.’” State v. Ingram, 914
N.W.2d 794, 797 (Iowa 2018) (citation omitted).

8

Failure to interpret the Clause independently results in arbitrariness.
Arizona courts today employ federal doctrines that interpret entirely different
language (such as “unreasonable”), instead of considering what the authors andratifiers of Arizona’s Constitution had in mind. Arizona courts have also failed toconsult the body of well-considered Washington precedent interpreting languagethat is identical, the way they do with regard to other clauses copied from the
Washington Constitution. That is not the right path.
II.

Washington Private Affairs Clause precedent should guide Arizonacourts.
Washington Courts have fashioned a body of precedent that is superior tofederal precedent here, and which this Court should adopt.
A. Washington’s superior objective approach
Because the Fourth Amendment bars “unreasonable” searches, federal
precedent deals largely with reasonableness—both of subjective expectations ofprivacy and of official actions. One problem with this is that privacy expectations
gradually become unreasonable as government surveillance techniques become
more pervasive. Every time a new monitoring technique comes into use, acitizen’s expectation of privacy diminishes—which allows still another new
monitoring technique to come into use. The Private Affairs Clause, by contrast, “isnot confined to the subjective privacy expectations of modern citizens who, due to9well publicized advances in surveillance technology, are learning to expect
diminished privacy in many aspects of their lives.” Myrick, 688 P.2d at 154.
Rather than evaluating the reasonableness of subjective expectations ofprivacy, Washington courts “focus[] on those privacy interests which citizens of
this state have held, and should be entitled to hold, safe from governmental
trespass absent a warrant.” Id. That involves two questions: (1) what has state law
historically protected, and (2) what dangers are presented by the search or
surveillance technique in question? See State v. Miles, 156 P.3d 864, 868 ¶ 12
(Wash. 2007). In Miles, for instance, the Court found that the Clause covers bankrecords , because they have been historically considered private, id. at 868–69 ¶ 15,
and because they can “reveal[] sensitive personal information,” such as “whatpolitical, recreational, and religious organizations a citizen supports,” as well as“where the citizen travels, their affiliations, reading materials, television viewing
habits, financial condition, and more.” Id. at 869 ¶ 17. Accord, Hinton, 319 P.3d
at 13 ¶ 11.
Washington courts have used this objective approach to address thequestions presented in this case: the Third Party Doctrine and the Good Faith
Exception. That superior jurisprudence should guide Arizona courts in applying
the Private Affairs Clause.

10B. Third Party Doctrine in Washington law
Gunwall, supra, refused to adopt the Third Party Doctrine created by federal
courts in Smith and Miller, because those cases were focused on the“reasonableness” of a person’s privacy expectations. Smith and Miller involved
information that suspects conveyed to third parties, and the Court concluded that
nobody “can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation ofprivacy’” in that information. Smith, 442 U.S. at 740. But such reasoning is
inapplicable under the Private Affairs Clause, because that Clause is not concernedwith “reasonableness.”
Gunwall rejected Smith particularly because telephone users do expect the
telephone numbers they dial to be “‘free from governmental intrusion,’” and this is
not changed by the fact that the numbers are transmitted to the phone company.
720 P.2d at 815 (quoting People v. Sporleder, 666 P.2d 135, 141 (Colo. 1983)). A
caller’s “disclosure” of a phone number to the telephone company is “‘necessitated[by] the nature of the instrumentality,’” but it is “‘for a limited business purpose
and not for release to other persons for other reasons.’” Id. at 816 (citation
omitted). The dialing of a phone number cannot, therefore, constitute a waiver ofprivacy expectations.
Hinton, supra, was even clearer. It held that officers violated the Private
Affairs Clause by reading text messages one person sent another. “Given the11realities of modern life,” Hinton said, “the mere fact that an individual sharesinformation with another party and does not control the area from which that
information is accessed does not place it outside the realm of [the Private Affairs
Clause]’s protection.” 319 P.3d at 15 ¶ 17. “[P]ersonal and sensitive” information
does not cease to be a “private affair” simply because it is disclosed to a third
party. Id.
Washington courts appear not to have addressed the precise issue ofobtaining ISP information without a warrant, because it appears that in
Washington, officers regularly get warrants before seeking this information—
which is “not[]…onerous” on law enforcement. See State v. Reeder, 365 P.3d
1243, 1261 ¶ 76 (Wash. 2015) (McCloud, J., dissenting). Yet Gunwall and Hinton
provide helpful starting points for resolving the questions presented here.
In this case, the court of appeals, notwithstanding its refusal to employ
Washington precedent, and its incorrect invocation of the subjective, federal“reasonable expectations” test, 2019 WL 3406661 at *5 ¶ 18, still followed thecorrect approach in substance. It found that the information internet users sharewith internet service providers is essentially like a “personal desk drawer,” and thatletting the government “peek at this information” without a warrant is akin toletting it take “a trip through a home” without lawful authority. Id. at *9 ¶ 27. The
fact that a user “voluntarily” shares this information with the service provider
12changes nothing, because the information is shared “for the limited purpose ofobtaining service,” not so that the provider can “reveal[ ] the user’s identity toauthorities.” Id. at *9 ¶ 28. That conclusion is consistent with the Private Affairs
Clause approach developed in Gunwall, 720 P.2d at 816, and Hinton, 319 P.3d at
15 ¶ 17.
The court also addressed the dangers of permitting the warrantless
acquisition of this information, particularly for those engaged in anonymous
speech. 2019 WL 3406661 at *10 ¶¶ 29, 30. This, too, is compatible with the
Washington approach, which addresses both the historical protection afforded to
private affairs, and “the nature and extent of the information which may beobtained as a result of the governmental conduct.” Miles, 156 P.3d at 868 ¶ 12.
The court of appeals therefore reached the right conclusion on this issue, despite
incorrectly citing federal precedent.
C. The Good Faith Exception in Washington law
The court of appeals reached the incorrect conclusion, however, with regard
to the Good Faith Exception.
That exception is a creature of federal law, adopted by federal courts in
1984. It is based, like so much else in Fourth Amendment jurisprudence, on
reasonableness considerations. See United States v. Leon, 468 U.S. 897, 919(1984), Mass. v. Sheppard, 468 U.S. 981, 987–88 (1984). But the Private Affairs
13Clause is not concerned with reasonableness; it forbids unlawful intrusions into
private affairs, even if reasonable. Therefore, the Good Faith exception cannot
apply. State v. Nall, 72 P.3d 200, 202 (Wash. App. 2003). As the Washington
Supreme Court has explained, “if a police officer has disturbed a person’s ‘private
affairs,’ we do not ask whether the officer’s belief that this disturbance wasjustified was objectively reasonable, but simply whether the officer had therequisite ‘authority of law.’” Afana, 233 P.3d at 884 ¶ 15.
The federal Good Faith Exception was also based on the U.S. Supreme
Court’s cost-benefit analysis—an analysis partly justified by that Court’s concern
with preserving state autonomy as much as possible. But such considerations canhave no weight under the state Private Affairs Clause, the “paramount purpose” ofwhich is “the vindication of the defendant’s rights.” Sanford Pitler, The Origin
and Development of Washington’s Independent Exclusionary Rule, 61 Wash. L.
Rev. 459, 512 (1986). That makes “an empirical measurement … both
inappropriate and impossible.” Id. Indeed, the purported cost-benefit analysis
underlying the Good Faith Exception is illusory, because it fails to include “thebenefit derived from protecting the defendant’s rights,” meaning that it is “merely
a stylish way to write an opinion once a judgment has already been reached on thebasis of individual, subjective values.” Id. at 492 n.176.

14

Washington’s refusal to employ the Good Faith Exception is, again, moreobjective than the ever-evolving federal “reasonableness” approach. The federal
rule’s primary flaw is that it is “speculative and does not disregard illegallyobtained evidence.’” Afana, 233 P.3d at 885 (citation omitted)). Washington’srule, by contrast, avoids speculation, and asks a single, objective question: was theevidence obtained lawfully? This is more protective of citizens and more faithful
to the text of the state Constitution. It is also more helpful to police andprosecutors, who are given the benefit of clear and unambiguous rules to guidethem when conducing searches or introducing evidence in court.
The federal Good Faith Exception has been criticized, rightly, for its
subjectivity and for hollowing out the Fourth Amendment’s guarantees. Federal
Good Faith analysis frequently results in “bypass[ing] entirely” the “thresholdissue of whether the individual’s fourth amendment rights have been violated.”
Joan Greenberg Levenson, The Good Faith Exception, 52 Brook. L. Rev. 799, 801(1986). The exception is so broad that it encourages courts to “evade fourth
amendment issues and proceed directly to a good faith analysis.” Id. at 815. See
also State v. White, 640 P.2d 1061, 1069 (Wash. App. 1982) (good faith rule
“allow[s] the [government] to make an ‘end run’ around the Fourth Amendment.”).
Even federal judges have objected that the federal “reasonableness” theory it is too
subjective and invites courts—in Justice Thomas’s words—to “make judgments
15

about policy, not law.” Carpenter v. United States, 138 S. Ct. 2206, 2236 (2018)(Thomas, J., dissenting); see also id. at 2264 (Gorsuch, J., dissenting)(reasonableness analysis depends on “abstract ‘expectation[s] of privacy’ whose
contours are left to the judicial imagination”).
The Private Affairs Clause has the advantage that, properly interpreted, it
contains no such subjective considerations, but turns instead on an objective
analysis of whether a person’s private affairs have been invaded, and whether thereis lawful authority for that invasion. That objectivity prevents policy-focused
applications of the law, and is therefore less prone to “judicial activism.” See
Sandefur, supra at 746 n.126. It is also less prone to fluctuation with shiftingsocial attitudes.
CONCLUSION
Private Affairs jurisprudence in Arizona presents a true anomaly: although
the Constitution does not use the wording of the Fourth Amendment, and does use
the wording of Washington’s Constitution—on which it was expressly based—
Arizona courts employ federal doctrines instead of Washington precedent. This iscontrary to the text, history, and purpose of the Clause, and clashes with thisCourt’s willingness to consult Washington precedent with regard to otherconstitutional provisions borrowed from that state’s Constitution.

16

The constitutional concerns about obtaining ISP location information fromthird parties without a warrant are matters of increasing importance in the internet
age. The fractured decisions in both Carpenter and this case are proof enough ofthe need to resolve these questions under an independent state jurisprudence rather
than copying-and-pasting inapposite federal precedent. See 138 S. Ct. at 2270
(Gorsuch, J., dissenting) (suggesting that the problem would be better resolved at
the state level).
The Court should grant the petition to set Arizona Private Affairs law on theright track—by interpreting the Clause independently, and consulting Washington
precedent to inform the Court’s analysis.
Respectfully submitted this 15th day of October, 2019 by:/s/ Timothy Sandefur
Timothy Sandefur (033670)
Matthew R. Miller (033951)
Scharf-Norton Center for Constitutional
Litigation at the
GOLDWATER INSTITUTE

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