ALERT! a non-gun related J/PS posting - Cops and your name

[Wickerman]

Anyone wanna talk about the SCOTUS decision yesterday and its implications? Seems slippery slope to me.


http://www.mercurynews.com/mld/mercurynews/news/world/8982001.htm?1c
Court: Police can require name

NEVADA IDENTIFICATION DISCLOSURE CALLED A MODEST INTRUSION ON PRIVACY

By Charles Lane

Washington Post

WASHINGTON - The Supreme Court on Monday upheld a state law that makes it a crime to refuse to tell the police one's name when stopped for suspicious behavior, a ruling that strengthens the ability of law enforcement officers to detain citizens even where they lack enough evidence for a full arrest.

By a vote of 5-4, the court ruled that Larry Dudley Hiibel's constitutional rights to be free of unreasonable arrest and to remain silent were not violated when Deputy Lee Dove arrested him for refusing to give his name after Dove stopped Hiibel and questioned him near Winnemucca, Nev., on May 21, 2000. Hiibel was convicted of violating Nevada's ``stop and identify'' law and fined $250.

Hiibel and his supporters, such as the American Civil Liberties Union, had urged the court to strike down the Nevada statute, arguing that it effectively criminalizes a citizen's silence.
-more-

[iverglas]

1. to the best of my recollection

That's the law here too. Stems from a case some years ago when a cop demanded a bicyclist's name so the cop could charge the bicyclist with breaking a provision of the Highway Safety Act (going through a red light is an offence for a bicyclist as well as a motorist, e.g.).

The cyclist didn't need a driver's licence and wasn't under the Highway Safety Act obligation to produce a licence, so the cop needed a way of identifying him in order to charge him.

I suspect that the issue was that he couldn't arrest the cyclist for a Highway Safety Act violation the way he could have arrested, say, a shoplifter who refused to identify him/herself.

So hmm, maybe that is a slightly different situation: someone who is being charged with a particular kind of offence can be required to identify him/herself. I'll have to look into whether the obligation is as general as your SC has said. Later. But I'm actually pretty sure, off the top of my head, that Canadian law (i.e. the constitution and the courts) wouldn't go along with this.

[iverglas]

3. aha

http://www.ontla.on.ca/documents/Bills/37_Parliament/Session3/b111_e.htm

EXPLANATORY NOTE

The Bill amends the Highway Traffic Act to make it an offence for any person to use a skateboard, a scooter, roller blades or roller skates on a highway <i.e. any public street> without wearing a helmet. Parents and guardians of a person under the age of 16 years are also guilty of an offence if they authorize or knowingly permit the person to contravene that restriction.

A police officer may require a person to provide identification if the police officer finds the person contravening the restriction.

If there were a general obligation (or an obligation under some other law) to "stop and identify" one's self, this legislation would not be necessary. And the legislation still requires that the person required to "stop and identify" have been found committing an offence.

So I guess Canadians aren't required to stop and identify themselves to any cop who might want to know.

[iverglas]

39. just in case anybody's actually interested

Here's what the Supreme Court of Canada had to say about these matters in the specific context of random stops of drivers to check driver's licences and insurance, also in a 5-4 decision, in 1990.

http://www.lexum.umontreal.ca/csc-scc/en/pub/1990/vol1/texte/1990scr1_1257.txt

Per Lamer, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.:

Appellant was detained in violation of s. 9 of the Charter. The police officers assumed control over his movement by a demand or direction and the legal consequences of the detention were significant. The detention was arbitrary in that the decision as to whether the stop should be made lay in the absolute discretion of the police officers.

Sections 7 and 8 of the Charter were not violated. No "seizure" within the meaning of s. 8 occurred here. ...

Section 189a(1) of the Highway Traffic Act was saved by s. 1 of the Charter. <i.e. it was *justified*> The power of a police officer to stop motor vehicles at random is derived from s. 189a(1) of the Highway Traffic Act and is thus prescribed by law. The authority also has been justified by this Court as a prescription of the common law.

The statistics relating to the carnage on the highways substantiate a pressing and substantial concern which the government was properly addressing through the legislation in question and the random stops. A more specific aspect of this concern related to areas where the probability of accidents can be reduced: the mechanical fitness of the vehicle, the possession of a valid licence and proper insurance, and the sobriety of the driver. They are directly pertinent to the question of random stopping.

The means chosen was proportional or appropriate to those pressing concerns. The random stop is rationally connected and carefully designed to achieve safety on the highways and impairs as little as possible the rights of the driver. It does not so severely trench on individual rights that the legislative objective is outweighed by the abridgement of the individual's rights. Indeed, stopping vehicles is the only way of checking a driver's licence and insurance, the mechanical fitness of a vehicle, and the sobriety of the driver.


Per Dickson C.J. and Wilson, La Forest and Sopinka JJ. <dissenting>:

The unlimited right of police officers to stop motor vehicles without any reason cannot be justified under s. 1 of the Charter. ...

The random stop constituted an arbitrary detention. ...

The Crown has not demonstrated that this unrestricted power is a necessary addition to the impressive array of enforcement methods which are available. Random checking at a stationary, predetermined location infringes the right much less than the unlimited right contended for. It is somewhat more carefully designed to serve enforcement, and is less intrusive and not as open to abuse as the unlimited power sought to be justified. The roving random stop, by contrast, would permit any individual officer to stop any vehicle, at any time, at any place. The decision may be based on any whim. The unlimited power has the potential of being much more intrusive and occasioning a greater invasion of privacy.

Note that this case addressed the specific situation of random stops of drivers, and found the requirement that drivers stop and identify themselves to be justified by the nature of that specific situation -- not that anybody anywhere could be required to stop and identify themselves.

I can't imagine the Supreme Court of Canada approving a law that required people generally to identify themselves to police.

[TX-RAT]

2. Failure to identify to law enforcement is a crime in TX

Has been for years. Probably the same in other states. I don't see where that ruling changed anything. The officer still has to have probable cause. In this case the probable cause was when he was dispatched to investigate a domestic disturbance. Traffic violations are probable cause.
Some seem to think this gives LEO the right to check your ID just for shits and giggles.

[Jack_DeLeon]

5. Not if you havent been arrested.

Here is the law.
http://www.bakers-legal-pages.com/pc/3802.htm

Sec. 38.02. FAILURE TO IDENTIFY.

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
~ ~ (1) lawfully arrested the person;
~ ~ (2) lawfully detained the person; or
~ ~ (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
~ (c) Except as provided by Subsection (d), an offense under this section is a Class C misdemeanor.
~ (d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is a Class B misdemeanor.

According to section (a) its a crime to refuse to give your info if you are being arrested.

However if you havent been arrested and are only being detained then you would fall under section (b).

Section (b) doesnt say that you have to give your info, only that its a crime to give false info.

[TX-RAT]

11. You need to read ( Terry vs Ohio )

Commonly called a Terry Stop.
All you need is reasonable suspicion.

[Jack_DeLeon]

13. What does that have to do with Texas's failure to ID law?

Terry stops are when the cops want to search your person for weapons.

[TX-RAT]

17. Not necessarily

Please read Terry vs Ohio. I can pat you down for my safety.

[Jack_DeLeon]

19. what are you going on about?

I never mentioned anything about that.

Sure you can pat me down to make sure I dont have any illegal weapons or whatever.

However in Texas that doesnt mean that I have to identify myself to you.

That would only be legally necessary if I was arrested.

[TX-RAT]

22. wrong

(However in Texas that doesnt mean that I have to identify myself to you)
I pull you over for a traffic violation. You are required to identify
I respond to a domestic disturbance, as in this case. You are required to identify.
It's late at night and i have reasonable suspicion your up to no good. You have to identify.

I see you walking down the street and your doing nothing wrong. I have no right to request your ID.

[Jack_DeLeon]

23. How so?

If its a traffic violation I have to show my drivers license because its part of the deal of having the privliedge to use Texas roads.

Under those other situations why would I have to identify myself?

I already posted the Texas law. Tell me how you are interpreting that?

If I'm not under arrest its only a crime if I give false info, not if I give no info.

[TX-RAT]

25. To give no info is a crime.

Your assuming i stop you for the hell of it. If i stop you i already have either probable cause or reasonable suspicion. Both require you to identify.

[Jack_DeLeon]

26. really? show me the law?

Probably cause or reasonable suspicion alone are insufficient for an arrest.

Under Texas law its only a crime if you refused to identify yourself after you have been lawfully arrested.

[TX-RAT]

28. Probably cause or reasonable suspicion alone are insufficient for an arres

But they are sufficient for you to ID

[Jack_DeLeon]

31. Ugghh, Under what law?

Gee maybe my copy of the Texas Failure to Identify law is out of date, if so let me know and post the updated version, but it doesnt say anywhere that its a crime to refuse to identify youself except for when you are arrested.

Sec. 38.02. FAILURE TO IDENTIFY.

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
~ ~ (1) lawfully arrested the person;
~ ~ (2) lawfully detained the person; or
~ ~ (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
~ (c) Except as provided by Subsection (d), an offense under this section is a Class C misdemeanor.
~ (d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is a Class B misdemeanor.

[TX-RAT]

33. lawfully detained the person; or

[Jack_DeLeon]

34. looks like someone hasnt been reading it correctly.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:


Giving false information is an offense.

No info != false info

Therefore giving no info is not an offense.

[TX-RAT]

36. Keep arguing if you want to

I suggested you read Terry vs Ohio, try it. And also next time your stopped by a officer, tell him you don't have to Identify. I know plenty of bondsmen.

[Jack_DeLeon]

37. Does Terry v Ohio require that suspects identify themselves?

Does it surplant Texas law?

Personally I would probably in most case give the police my name and thats about it, unless I had a reason to talk to them like I'm making a complaint about someone else or something like that.

That being said I read the law, and it doesnt require anyone to ID themselves unless they have been lawfully arrested.

[TX-RAT]

43. ID themselves unless they have been lawfully arrested

They would be under custodial arrest.

[iverglas]

40. TX-RAT, you seem to be off base.

http://www.oyez.org/oyez/resource/case/378/

Terry v. Ohio

392 U.S. 1 (1968)

Docket Number: 67

Abstract

Argued: December 12, 1967
Decided: June 10, 1968

Subjects: Criminal Procedure: Search and Seizure

Facts of the Case

Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail.

Question Presented

Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?

Conclusion

In an 8-to-1 decision, the Court held that the search undertaken by the officer was reasonable under the Fourth Amendment and that the weapons seized could be introduced into evidence against Terry.
-Attempting to focus narrowly on the facts of this particular case, the Court found that the officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted inbelieving was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior." The Court found that the searches undertaken were limited in scope and designed to protect the officer's safety incident to the investigation.

This case plainly has to do with the entitlement of the police to search people and to seize things -- NOT the entitlement of police to require that people identify themselves to the police when asked and when they have *not* been arrested, or the obligation of people to comply with that requirement.

[TX-RAT]

42. Terry had to do with a pat down

Once you have been stopped or being questioned, you fall under custodial arrest. From there you may or may not be charged. But you must identify.

[iverglas]

44. okay ...

Once you have been stopped or being questioned, you fall under custodial arrest.

But no. There are certain very formalistic requirements in order for an "arrest" to have occurred.

A cop saying "stop, I want to ask you some questions!" is *not* an arrest, even if you comply. If you are physically stopped -- prevented from proceeding on your way, or commanded to stop -- yes, you're probably under arrest.

If a cop sees me walking down the street late at night and beckons me over to his/her patrol car to explain what I'm doing, I am *not* under arrest, even if I comply. (Goodness, just think of the opportunities for wrongful arrest lawsuits, if every time a person responded to a beckoning cop, or answered a cop's questions, s/he were under arrest.)

If you are being "patted down", then yes, you would appear to be under arrest -- since I wouldn't think that a cop could search your person unless you *were* under arrest -- or unless the cop had that reasonable belief that you were armed and thus a threat to his/her safety that Terry v. Ohio addresses in making an exception to the right not to be unreasonably searched (or calling it a reasonable search, whatever).

A cop can't just "pat down" somebody on the street unless the person is first placed under arrest *or* the cop reasonably believes that the person is a threat to the cop's safety.

In what circumstances would it be essential to a cop's safety to know the name of the person s/he is speaking to?? I can't think of any.

So the Terry exception to the general rule -- if we can expand it to say "a cop may do something that is a violation of a person's right if the cop reasonably believes that the person is a threat to his/her safety" -- just doesn't apply.

If a cop has grounds to arrest someone, fine. If it turns out that the person arrested is the wrong person -- a case of "mistaken identity", say -- and the cop had reasonable grounds for thinking s/he had got the right person, there's no problem for the cops.

The person's refusal to identify him/herself might even play a role in the cop's reasonable grounds for thinking s/he had got the right person, in that case: where everything else about the person fit the description of the wanted person. Someone who refused to identify him/herself in that situation wouldn't have the makings of a good wrongful arrest lawsuit.

But again, this is not justification for compelling people to identify themselves to the police when the police apparently do not have grounds to arrest them. People can avoid valid reasonable-grounds arrests by identifying themselves if they want to, or they can just remain silent and wait until the mix-up is sorted out by some other means. Their choice.

If people can be required to identify themselves in order to help out in a police investigation, maybe they can be required to tell the police where they were last night for the same reason. Or what their neighbour said about George W. Bush ...

[TX-RAT]

46. A cop saying "stop, I want to ask you some questions!" is *not* an arrest

You are correct.
I have to have probable cause or reasonable suspicion. But if i have one or both and start to question, then you would fall under Custodial arrest. At that point you must identify.

[iverglas]

47. TX-RAT ...

I have to have probable cause or reasonable suspicion. But if i have one or both and start to question, then you would fall under Custodial arrest. At that point you must identify.


Okay. Cool.

The case under consideration *here* -- the one decided by the US Supreme Court -- was one in which the cops apparently DID NOT have grounds for an arrest. The person who was questioned WAS NOT under arrest.

You say "probable cause" but you don't say to do what, and you say "reasonable suspicion" but you don't say of what.

I understand that Terry held that *if* a cop has established, through questioning, that probable cause exists to believe something that would entitle a cop to arrest (or search) the suspect, *then* the suspect may not just walk away.

The case the Court was dealing with, in the decision lunabush reported, was one in which the police chose *not* to take that step, presumably because they did *not* have the necessary grounds. The mere fact that a cop asks you questions does *not* mean that you are under arrest, or that the cop has the necessary grounds to arrest you. And the mere fact that a cop asks you questions does *not* mean that you have to answer them - and the question is why the question "who are you?" should be any different.


There are indeed problematic aspects to denying cops the power to do this (i.e. permitting people to refuse to answer questions like "who are you?"). In the particular case, the cops were investigating a report of violence against a woman, as I understand it so far. It's possible that a woman who is a victim of violence and is sitting in the suspect's pickup truck is not going to speak up and volunteer to tell the cops what was happening, out of fear of the suspect. We need to be able to deal with such situations. Just as, as someone else in this thread said, we need to be able to deal with crack houses. Because individuals and the public are entitled to protection.

But a blanket requirement that people identify themselves to the police, and a law that they may be charged with breaking if they don't -- that goes a bit far.

Specific exceptions, like the Terry rule for when cops feel their safety is threatened, and the Ladouceur case in Canada for traffic safety spot checks -- both of which can be specifically justified -- seem like a much better way to go.

[TX-RAT]

48. Let me try again.

I'm the officer that got that call.
I arrive at the scene and see 2 people and a vehicle, as described by dispatch. At that point both are under custodial arrest until i can figure out whats going on. My first requirement is to find out who I'm dealing with. I start checking IDs
Had i driven up on the same vehicle without prior knowledge of the domestic, the most i could have done was ask if they needed help. If in the process of asking if they needed help i notice she's scared or hurt and i have a reasonable suspicion that a domestic has taken place, he then is under custodial arrest and would need to ID.
Custodial simply means he's not leaving, it doesn't mean charges will be filed.

Had he given the info after any of the 11 request by LEO, he would have walked away.

[iverglas]

49. now let's go back ...

Here's what was posted earlier:

http://www.bakers-legal-pages.com/pc/3802.htm

Sec. 38.02. FAILURE TO IDENTIFY.

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
~ ~ (1) lawfully arrested the person;
~ ~ (2) lawfully detained the person; or ...

I'll assume that what you are calling "custodial arrest" is what the Texas statute calls being "lawfully detained".

If the person has been arrested, s/he can be charged if s/he refuses to state his/her name etc.

If the person has been detained, s/he can be charged if s/he states a false name etc.

S/he may *not* be charged for failing to identify him/herself *unless* s/he has been "arrested", *not* "detained".


My first requirement is to find out who I'm dealing with.

That's your first "requirement" in the sense of what you need in order to do what you want to do. But what a cop wants to do is not always something that s/he is constitutionally permitted to do.

In fact, you may not need to know who someone is at all. If you have grounds for arresting the person, you can just go ahead and do it without having a clue who s/he is, if you find him/her committing a crime or are told by reliable people present that s/he has just committed a crime. (Depending on what the warrantless arrest requirements are where you are.)

If the crime the person has apparently committed was not seen by you and is not one for which a warrantless arrest may be made, and if you do have reasonable grounds etc. to believe that s/he committed the crime (i.e. you want to issue a summons), then I assume that at *that* point you could arrest a person who refused to self-identify, for obstruction.

[iverglas]

35. I just don't read it that way.

I pull you over for a traffic violation. You are required to identify

Yes -- the requirement that a person operating a motor vehicle identify him/herself when required by a police officer to do so *is* regarded as a justified exception to the general rule that one is entitled *not* to identify one's self to the police (or to anyone else).

That general rule derives from, probably, a combination of several constitutional rights, but it's certainly a right that has long been held to exist, in the US and Canada and elsewhere. Individuals simply are not required to identify themselves to anyone, as long as they are going about their business and not engaged in some activity for which there is a justified exception to the rule.

Likewise, the requirement that a person who has been arrested identify him/herself to the police has also been held to be a justified exeption to that general rule in the US, it seems.

I respond to a domestic disturbance, as in this case. You are required to identify.
It's late at night and i have reasonable suspicion your up to no good. You have to identify.

But no, I don't see where either of these is a justification for an exception to the rule, or where such an exception has actually been made in Texas. You, a peace officer, probably routinely ask or even demand that people identify themselves. But you could not charge them with failing to do so if they refused, under the Texas law that was quoted.

Of course, under this Supreme Court decision, Texas could now go ahead and make a law saying that you could, it seems.


Basically, no one is required to identify him/herself to the police or to anyone else. There are certain limited situations in which there is such a requirement, in some places and in some circumstances.

- in Texas: when the person has been arrested.
- in Ontario: when the person is found committing a Highway Traffic Act offence.
- at the border: when a person is claiming to be a citizen and seeking to re-enter the country.
- in daily life: when employed (required to provide social security / social insurance number).
etc.

But requiring a person to identify him/herself to police simply to make the police's job of investigating complaints easier, where the police do not have sufficient grounds for making an arrest, has never before been held (in the US, and I believe in Canada) to be justified.

[Wickerman]

6. I was hoping for your input

I guess my question was do they still have to have probable cause. And yes, the decision says they do need PC, but isn't that just another court battle.

[TX-RAT]

12. Terry vs Ohio says reasonable suspicion

I see a car driving down alleys at 3:00 am, that qualifies as reasonable.
Probable cause is always an argument. Nobody thinks the officer had a reason to stop them.

[Wickerman]

14. Yep, and the town I live in a car out at 3 AM

that the cop doesn't know and deviates from the two thru streets is gonna get stopped. Its all relative.

[iverglas]

18. yup

And yes, the decision says they do need PC, but isn't that just another court battle.

It is indeed. They get to arrest you for refusing to identify yourself when, they assert, they had probable cause for demanding that you identify yourself. Then you get to challenge their probable cause in defending yourself against the charge of refusing to identify yourself.

If they don't just catch and release you, of course.

I'm still confused about what the accused did in this case, because it doesn't look like what that Nevada statute quoted in this thread makes an offence. Specifically, he had *not* been arrested (and he did not offer false information).

-- edit: oops, my mistake: the law quoted was from *Texas*, indicating that "stop and identify" is *not* the law in Texas; the Nevada law is presumably different on precisely that point: a person who has *not* been arrested is required to stop and identify him/herself.


From the Yahoo report linked in this thread:

The deputy tried to get Hiibel to give his name. Hiibel refused, and at one point put his hands behind his back and told the officer to arrest him and take him to jail. Hiibel, who owns a small ranch outside of Winnemucca, Nev., said he believed he had done nothing wrong and that there was no reason to reveal his identity. Hiibel was convicted of willfully obstructing an officer and was fined.

Civil libertarians and groups representing the homeless were among those siding with Hiibel. They argued that individuals should be allowed to remain silent and noted the plight of homeless people, who are less likely to avoid the police and could be subject to greater privacy intrusions than many others.

But the court's majority said that laws such as Nevada's could benefit individuals and police.

"Knowledge of identity may inform an officer that a suspect is wanted ...," Kennedy wrote, and also "help clear a suspect and allow the police to concentrate their efforts elsewhere."

Well, could benefit individuals ... who otherwise, i.e. absent this police power, would be free simply to go along their merry way if the police did not have some grounds for arresting them. Hmm, big benefit, that.

Certainly the benefit to the public of imposing a minor inconvenience on an individual can result in it being perfectly constitutional to require the individual to suffer the minor inconvenience.

But when the minor inconvenience results from interference with the exercise of a very important right, which this very arguably is, something more than just making the police's job easier is generally called for. (Call it "liberty", call it "privacy", call it the right against self-crimination or unreasonable search or arbitrary arrest and detention, the right in issue in this case is pretty fundamental no matter how you look at it.)

[CO Liberal]

4. Does Anyone Know Which Justices Voted In Favor Of This????

:shrug:

[Wickerman]

7. guess

Kennedy was joined by Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. Dissenting were John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

http://news.yahoo.com/news?tmpl=story&u=/usatoday/20040622/pl_usatoday/supremecourtkeepingnameprivatecanbeacrime

[CO Liberal]

9. So Kennedy & O'Connor Sided With The Three Stooges.....

Hmmm......

[Dolomite]

21. "Does Anyone Know Which Justices Voted In Favor Of This????"

As far as how they voted:

Well, well…

A Bush and 3 Reagan’s went the way of the Gestapo…

And…

2 Clinton’s, a Ford and a Bush actually try to do the right thing.

[CO Liberal]

30. Yet Another Reason to Vote for Kerry

We can't afford to let the RepubliKKKans put anyone else on that Court.

[RoeBear]

50. You seem to be against this ruling...

...it seems everyone, everywhere is against this ruling.

http://thehighroad.org/showthread.php?s=&threadid=87981

[CO Liberal]

51. At First Glance....

...it looks like Billy Rehnquist & The Supremes are making it easier for martial law to be administered.

[iverglas]

52. perhaps not quite everyone

From that thread, e.g.:

I'm required as a police officer to identify myself when making contact with citizens But if in the course of an investigation I ask for somebody's ID why should they be able to ignore me or tell me to take a flying leap? I've already told them what I'm doing. If they're not involved why are they displaying this behavior? Perhaps they do have something to hide - like an outstanding warrant.

Right. A cop has to identify him/herself to the public, so why shouldn't the public have to identify itself to the cops? A cop has to be polite to the public, so why shouldn't the public have to be polite to the cops? Good lord.

According to the case documents the officer (Nevada Highway Patrol) informed the guy that he was investigating a report of a fight and then asked for his ID. The defendent refused several times and was finally arrested for resisting and obstructing. Just show the ID, have a brief conversation with the officer and then he/she will be on their way and you will be able to continue with your business. I don't see the big deal.

Amazingly, some people (and I'm one of them) do generally consider their business to be their business, and not the cops'. Being unfortunate enough to resemble someone in whom the cops have an interest, or be in a situation in which the cops have an interest, doesn't necessarily mean that my business becomes the cops' business.


And hey, I like how they talk about me there: "that nasty Canadian Iverglas who writes pages of legal jargan" ... even if they can't spell.

[FeebMaster]

53. Just about everyone but the police, apparently. (nt)

editted: typo

[FatSlob]

8. I'm not sure on this one.

It doesn't sit right, but I can't think of any constitutional reason that one should be able to not provide a name.

[iverglas]

10. good bloody grief

It doesn't sit right, but I can't think of any constitutional reason that one should be able to not provide a name.

Yeah, and I've never been able to think of a constitutional reason why one should be able to eat pizza for breakfast.


It is AN OFFENCE not to provide a name, in the case of this statute.

If one is liable to prosecution and punishment for doing (not doing) something, then for that reason alone the requirement that one not do (do) it is an interference with liberty.

It may be a *justified* interference with liberty, it may not.


I'm confused about this particular case, and don't have time to go looking for it; I have to devote some time just now to reading a Supreme Court of Canada case instead. ;) (Okay, I tried cursorily to find it, but w/o luck.)

Does the individual have to identify him/herself *only* after being arrested? Or at any time when the police assert that they have probable cause for ... what? Requiring that a person stop and identify him/herself??

[OpSomBlood]

15. Failure to identify to LE is a crime in Florida, too.

In fact, if you are an adult you can be arrested for not carrying a state-issued ID on your person if you are suspected of a crime.

[Jack_DeLeon]

16. wow thats bad.

Do you know what the full law is? Can you post it, I'm curious.

[OpSomBlood]

24. I don't know where to find the law itself...

...but when I used to work in a department store, shoplifters would be arrested all the time for failure to provide identification to the police.

[slackmaster]

29. I thought SCOTUS ruled that unconstitutional

There was a black Rastafarian who lived in the affluent suburb of La Jolla, California who got rousted repeatedly by police because they thought he looked suspicious. (Actually the guy was independently wealthy and just walked a lot.) A City of San Diego ordinance requiring people to carry ID was stricken by the Supremes.

[T Town Jake]

20. I could be wrong, but...

...I think the underlying question in the case boiled down to this: can a person "incriminate" themselves by being compelled, upon threat of arrest for non-compliance, to state their own name to an LEO? The obvious answer is yes - if that name happens to be attached to an arrest warrant in some criminal database somewhere. I've already heard a deluge of commentary to the effect that "well, an innocent person doesn't have to worry about that anyway, so what's the problem?" The "problem," of course is that you could say the same thing about any number of constitutional protections provided us: why would an innocent person need to be protected against warrantless searchs of their homes and property? Why would someone not guilty of a crime need the right to an attorney, or an opportunity to compel witnesses for their defense, or a speedy trial for that matter?
I think I hear Paul & Art warming up in the background: "slip slidin' awaaay..." This decision doesn't sit well with me. A case better than the "what's the problem?" one I made above could be made for the other side, but it's still a close call, IMHO. And I think in "close" calls the law should always err on the side of presumption of innocence and protection of privacy. They didn't - or at least five of them didn't - in this case.

[slackmaster]

27. Like other rights, the right to remain silent is not absolute

Or so the Court says.

It makes sense to me from a social contract perspective. We've created the civil police (rather, the British did and we copied their model), giving them them certain powers and paying them money in exchange for them enforcing laws and protecting society as a whole from crime. Someone who recalcitrantly refuses to identify himself or herself is wasting police time and therefore public money. If they really want to, the police are going to figure out who you are sooner or later.

The purpose of the right to remain silent is to allow a person who is accused of a crime to avoid unconstitutional self-incrimination. In order to do their job efficiently police need to be able to ascertain whether or not you are such a person. Once you have been identified and arrested the RTRS kicks in.

This reminds me of an old Far Side cartoon. Tough-looking police officers have a grizzled suspect under a bright light. The senior LEO says to the one doing the interrogation to get a clue: "His name ain't Puddin Tame!"

[GiovanniC]

38. "to allow a person who is accused of a crime..."

Well, if they refuse to identify themselves, they are accused of the crime of failure to identify themselves, and therefore shouldn't be compelled to identify themselves, since they have the right to remain silent and the subject of their identity is the direct subject of the crime they're being accused of.

[slackmaster]

54. Sounds like a circular argument to me

Anyone who refuses to give his or her name to a police officer on request is asking for trouble.

You have the right to ask the police officer for his or her name and badge number. Wouldn't it seem unreasonable for a law enforcemnt officer, a public servant working on your dime, to refuse to identify himself or herself?

Goose/gander.

[GiovanniC]

55. It's Extremely Circular

That's the point.

And as a citizen, you have lots of rights that the police officer doesn't have. The right to remain silent happens to be one of them. The fifth amendment of the constitution specifically gives people the right to not incriminate themselves in a crime, whether they're guilty or otherwise. Since even the simple act of identifying yourself may be enough to incriminate yourself (and there are a variety of ways in which that act may do so), you have the right to remain SILENT. Not "the right to remain silent EXCEPT..."

[iverglas]

56. goose/gander??

You have the right to ask the police officer for his or her name and badge number. Wouldn't it seem unreasonable for a law enforcemnt officer, a public servant working on your dime, to refuse to identify himself or herself?

Those weird analogies ... this one, of course, was made over at roadrage, as I quoted earlier.

You did put the important bit in there: a public servant working on your dime.

That's not how I think of myself when I'm strolling down the street going about my own business and am accosted by that public servant working on my dime.

So what exactly is it that makes me the goose to his/her gander?

I.e.: there is a reason that the cop is required to identify him/herself to me in his/her dealings with me. That reason is wholly inapplicable to me in my dealings with cops. The reason why some people think that I should be required to identify myself to a cop is completely, entirely, 100% different from the reason why the cop is required to identify him/herself to me.

Doctors are required to give me anaesthetic. Am I required to give doctors anaesthetic? Teachers are required to mark my term papers. Am I required to mark teachers' term papers? Bus drivers are required to get me from here to there. Am I required to get bus drivers from here to there?

Another bad analogy bites the dust. The two things being likened are dissimilar on the very point in issue.

[iverglas]

41. rights are absolute, but there will always be justified violations

Someone who recalcitrantly refuses to identify himself or herself is wasting police time and therefore public money.

Of course, the police are entirely free simply to walk away and stop wasting their *own* time.

If they don't have grounds for arresting someone, they're just on a fishing expedition.


If they really want to, the police are going to figure out who you are sooner or later.

The question is: do they really need to? The reason they would need to would be that they wish to lay a charge against you, and they can do that by arresting you.


The purpose of the right to remain silent is to allow a person who is accused of a crime to avoid unconstitutional self-incrimination.

Absolutely. In fact, in your Constitution, it reads like this:

Amendment V

No person shall ... be compelled in any criminal case to be a witness against himself ... .

One is not a witness unless one is in court. (Whence why I find the decision that a convicted felon cannot be required to answer the question as to whether s/he is a convicted felon when purchasing a firearm so outrageously ridiculous.)


Once you have been identified and arrested the RTRS kicks in.

Actually, it doesn't kick in until you are in court. The right to silence before then is quite different, and has quite a different history. It originated in the Judges' Rules of the English common law courts, which applied to the admissibility of out-of-court confessions. The original rationale for excluding them was that they simply were not reliable: who knows what people might say if beaten hard enough, or promised enough money?

The thing is that the statements one makes out of court cannot be used to incriminate one in court unless one has been advised of one's right not to speak. It is the admission of those statements in evidence that violates the right against self-crimination, not the taking of the statements itself.


In order to do their job efficiently police need to be able to ascertain whether or not you are such a person.

Yes, but there are lots and lots of things that would make police work more efficient. A video camera in your bathroom, for instance.


Gotta balance those individual rights against the collective interest, applying the proper tests to determine whether the violation of an individual right is *justified*.

[-..__...]

32. The slippery slope has already started.

I wonder what kind of impact the decision will have on the situation described in the following article?

Both the decision and Globe story allude to "suspicious" or "suspicious behavior". Suspicion of a crime, civil infraction or detention prior to an arrest is not part of the criteria in being demanded to produce ID.

****************************************************************

"MBTA set to begin passenger ID stops Effort part of national rail security program

MBTA transit police confirmed yesterday they will begin stopping passengers for identification checks at various T locations, apparently as part of new national rail security measures following the deadly terrorist train bombings in Spain.

Although officials would release few details about the initiative, the identity checks will mark the first time local rail and subway passengers will be asked to produce identification and be questioned about their activities.

Officers have been training for the security checks since May 11, transit officials said. MBTA Police Deputy Chief John Martino confirmed via e-mail yesterday that officers have been training with State Police at South Station this week.

T spokesman Joe Pesaturo said the State Police involved in the training were from Troop F at Logan International Airport, where such identification checks have been taking place since about a year after the Sept. 11, 2001, terrorist attacks.

Pesaturo wouldn't say where or when the identification stops would take place, or how long they would last".

More...

[Dolomite]

45. Found some pertaining WI law...

As stated before, a shit load of States supposedly already have laws like this in effect – including Wisconsin. So I did a little reading in the 2003 State Statute Chapter 968, “COMMENCEMENT OF CRIMINAL PROCEEDINGS”, and I really don’t see how they can arrest you for not providing your papers if you’re just walking down the street minding your own business. If anything – they have to give you a valid reason for requesting your identification.

I would say that if I’m out standing on a corner at 1:30 in the morning – and an officer says something like, “We’ve arrested people selling drugs on this corner several times, I want your identification.” I don’t see why I’m required to provide it since I’m not doing anything criminal (now if I was seen walking up to stopped cars and exchanging items with the occupants – that’s obviously a different story).

I have however personally been pulled over by cops in an adjoining neighborhood (one known to have street drug activity), and told “Good afternoon sir, we’re conducting a neighborhood safety awareness program, ensuring people are wearing their seat belts and such, may I see your driver’s license?” They were pulling over EVERYBODY and I knew it was bullshit - but I surrendered my DL anyway. The cop saw that I was obviously on my way home, and he gave it back and told me to have a nice day. Was it wrong for me to comply? No, since I support the practice of harassing crack houses near my ZIP code – I was glad to see them harassing people – and that makes me part of the problem does it not?

Anyway, of interest:

968.24 Temporary questioning without arrest.
After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

But…

968.24 - ANNOT.
This section authorizes officers to demand identification only when a person is suspected of committing a crime, but does not govern the lawfulness of requests for identification in other circumstances. State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72.


And…

968.24 - ANNOT.
The Terry rule applies once a person becomes a valid suspect even though the encounter was initially consensual; if circumstances show investigation is not complete, the suspect does not have the right to terminate it. State v. Goyer, 157 Wis. 2d 532, 460 N.W.2d 424 (Ct. App. 1990).

And…

968.24 - ANNOT.
That the defendant is detained in a temporary Terry stop does not automatically mean Miranda warnings are not required. Whether the warnings are required depends on whether a reasonable person in the defendant's position would have considered himself or herself to be in custody. State v. Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998).

And (this is really scary)…

968.24 - ANNOT.
A police officer performing a Terry stop and requesting identification could perform a limited search for identifying papers when: 1) the information received by the officer was not confirmed by police records; 2) the intrusion on the suspect was minimal; 3) the officer observed that the suspect's pockets were bulging; and 4) the officer had experience with persons who claimed to have no identification when in fact they did. State v. Black, 2000 WI App 175, 238 Wis. 2d 203, 617 N.W.2d 210.

And so is this:

968.25 - ANNOT.
An investigatory stop-and-frisk for the sole purpose of discovering a suspect's identity was lawful under the facts of the case. State v. Flynn, 92 Wis. 2d 427, 285 N.W.2d 710 (1979).