A question for the Law experts here (might be off topic)

T

TR

New member
This might be off topic, and if it is, let me know, and I'll delete it, but I need to aske someone about this, and there seems to be some small wealth of "expert" opinion here.

Ten years ago (maybe more) my wife and I were living in Wisconsin. Back when we were poorer and recently wed, and still learning how to live with one another. This process sometimes got very loud. Anyway, we rented a duplex and the landlord lived in the other half. One night we are having a doozy of an argument, the argument went to the usual crescendo and climaxed and then all was quiet. That is until the Police showed up.

Of course we know the landlord called them. couldn't prove it, and the LEOs weren't going to tell us. but they came into the house (can't remember if they asked to come in or not) and demanded to see my wife, who by this time was breast feeding my daughter in the bedroom. Of course, trying to be the accomidating person, innocent of all wrongdoing except being loud in my own home, I attempted to have her stop and come out. She refused (Wisely, I now know) on the grounds that she wasn't "decent" yet they persisted. After about the third time of them hearing her protest that she didn't want to come out, the gave up. All this time they remained in the front room.

But before they left they took our names. "standard procedure" I was told. Two weeks later they were back to arrest me for a bounced check (I had taken care of it, but somehow the merchant hadn't notified the DA).

My question (of LEOs and other legal beagles) is, was it legal for them to take my information and run it through thier computers to see about any warrants? And would I have been within my rights to refuse to give them my name?

The events surrounding this have puzzled me for years, and I still have no real answers as to what I would have been able to do legally. I admit that back then I was quite naieve when it came to things legal. However, I have since begun educating myself as to my rights, and I think this would be an interesting example to get some feedback on. Any thoughts would be appreciated.

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I know not what course others may take, but as for me, give me liberty or give me death! - RKBA!
 
Sorry TR - Sounds like they were legal there.
It is SOP to allow a NCIC check on anyone they ID. And a police officer in Wisconsin is allowed to check anyone they want. Even if your just walking down the sidewalk wistling a little ditty about jack and diane...

I am glad you got the check cleared up - cause then that case should get tossed out pretty quick.

It would have looked a lot better to the police and relieved worry and suspicion if your wife had come out. The LEOs would have felt a lot better if they could have seen her... and saw she had no black eye or paw print across the face. Thats for her protection - you might just argue verbally but some jackasses argue with there hands.

Next time you start getting worked up in a heated verbal exchange - and you can see them coming... Tell her you love her and appreciate her - give her a hug before continuing to discuss, maybe over a dinner or even just a chocolate bar, the issue at hand.

A halmark card saying "Sorry we got loud" to the landlord next door will pay for its self should it happen again.

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"A fear of weapons is a sign of retarded sexual and emotional maturity." - Sigmund Freud
RAGE AGAINST THE MACHINE
 
Ok, at the risk of appearing stupid, what the heck is an NCIC?

I just felt that at least one of my rights and one of her rights would have been violated had she done what they wanted.

Yes the check had already been cleared up, but I had to get a lawyer to get the legalities straightened out.

See them coming? this was after dark, as we were attempting to get to bed, and we weren't watching out the window.

As for the hallmark card, I wanted to have Kosinsky send them a "hallmark card", they were such a bunch of busy bodies. In fact, two weeks later we were at thier place (after paying the rent, I couldn't stand to be there a minute longer than I needed to) talking with them about the incident, and they basically denied calling the police, when the cops arrived looking for me.

Well, that was 10 or 12 years ago ... yeah it still pisses me off ... it was simply the way it was handled. I was more upset with the landlord than the police (they were just trying to do thier job) altho, if what you say is true, it simply points to another erosion of our rights. And I do understand some idiots argue with thier wives using thier fists, but as I mentioned above, it seems a little unseemly ... I wasn't going to pull my wife, in her nightgown, while breast feeding out in front of another guy - cop or not.

And not to worry, we finally learned how to fight a bit less loudly. It only took us about 6 years (I swear, I must have some Italian blood in me, but mom and dad say Im all German), but we managed to do so... it's amazing how a child being around can calm one down in a hurry - that and a job that pays a reasonable wage :)

[This message has been edited by TR (edited October 23, 1999).]
 
TR,
NCIC, I've used the letters for so long I can't remember exactly what they stand for, what it is, is a National Computer where Arrest Warrants, stolen items, and missing persons are listed. I don't even have to ask that a check be made. If I run your information, like your plates, and Driver's License at a traffic stop it is automaticly checked to see if you are wanted or reported missing or the vehicle you are driving is stolen. And No it isn't always current, but the record is pretty good.

For future (hopefully unneeded) referance, ask if the case has been turned over to the authorities before you pay for a bad check. If they have turned to over, then go to the DA and take care of the check there.

As to the Police wanting to see your wife. They should not have left until they had seen her, and spoke to her in person. I would not have. Nursing? A towel will cover her chest, and the baby.

Fact is my friend, at that time, I'm more concerned with her welfare, than your rights at that point.

As to the Neighbors, think of it this way. If it was your Daughter, and that New "worthless" husband of hers ( :) Good Grief, sounds like I have a late teens Daughter or something) You wouldn't be nearly as upset at them.

I'm happy and proud to hear that your fights stayed verbal (on both sides I hope) just remember that we Cops get to see the aftermath of the ones that don't stay verbal. And Yes, I have taken women to jail for assaulting their husbands.


[This message has been edited by Raymond VanDerLinden (edited October 23, 1999).]
 
National Criminal Information Computer? I've been out of the law dog game to long to remember. It's something like that anyway.

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Ne Conjuge Nobiscum
"If there be treachery, let there be jehad!"
 
NCIC means National Crime Information Center and it is a computer system which purports to record all (or nearly all) arrests and the subsequent disposition of the charge. It is in general for LEO's only, but there are instances when it can be accessed by others.

Did the cops have a right to check your name on it. Yes, no doubt about it.

The more interesting question is did you have a right to decline to give them your name. Of course, as a practical matter, they could go next door in your fact scenario and say something like "What's the guy's name, look at the lease, or a check?"

But what if the facts did not include a next door neighbor with the info and you respond to "Who are you?" with something elegantly simple like: "I am a citizen of the United States." PERIOD.

It's a little hard for somebody to claim that this is giving the cop lip. Hey, you ARE a citizen of the USA, and that simple statement sort of contains a blanket assertion all rights appertaining thereto (as we lawyers are wont to say).

Like the right to privacy in our own homes. The right to property (which by implication means the right to exclude uninvited persons). "Officer, if you have no warrant for search or arrest, I am going to respectfully request that you remove yourself to public property and continue any inquiry you desire from that position."

One part of your fact pattern that might alter this is the fact that the cops were investigating what they may have suspected was a domestic abuse crime.

They might plausibly argue that they needed to obtain your name in order to determine if there were outstanding warrants for d.v. which would affect the degree that they might credit your statement to the effect that "everything's OK here."

In short, it increases the basis for their claim to need to know the information, but frankly if you say: "Jake, I aint tellin ya" (or the more polite version of this statement which appears above) I don't know what they can do about it.

Assuming they hauled your butt to the pokey, when the desk clerk says what'd he do, these guys look at each other and give an elongated version of "Duh."

And if they get past the desk clerk, they still have to drag you before a magistrate or justice of the peace at some point and the question then is what did he do? Of course, from this point forward you would have a "State v. John Doe" docket and probably be finger printed and, if you're in the system, John Doe would then shift to your name.

But, again, you have a right to shut up, especially in your own home, and the government cannot arrest you, in my judgment, solely for refusal to produce ID (unless you're driving and are lawfully required to show a drivers license, or entering the country and lawfully required to produce a passport)

(and unless you are in circumstances that might justify a so-called "Terry Stop" i.e., you are in a public area where criminal activity appears to be afoot and the cops want to frisk you for weapons and id even if they don't have probable cause for arrest).

In your specific situation it is also possible/probable that the cops would have gotten a warrant to search the residence of "John Doe" to determine if a person there was injured, and they may in fact have been upheld in searching if their probable cause to believe violence was taking place was substantial.

You've got rights, including the right to privacy in your own home. Asserting them is a process that requires some balance and remember it's going to be a swearing contest before the jury or J.P. as to who did/said what. That's why it is important to only stand on limbs likely to withstand a pretty good wind.

But all caveats aside, frankly, I like the sentence: "I am a citizen of the United States."
 
If you fail to identify yourself to a LEO when you are involved in a criminal investigation, possible Domestic abuse, You can be held until we can Identify you. Your claim of Privacy, no matter how polite, isn't going to hold. But You will be held.

As to asking me to leave or get a warrant, well if I'm alone I'll claim (rightly so) exigent circumstance. If there like in the incident mentioned two LEOs then one of us will stand there hold you in the living room while the other goes and gets the Warrant. A 2 + hour process.

While I agree that an LEO can't demand identifcation if you are not a part of a Possible criminal act. He does not have to explain the ins and outs of the case to you at that time.

I'd suggest you choose your battles well, and carefully. Remember lawyers get paid to fight these battles. Remember, its you, who is going to be paying the lawyer.
 
Interesting discussion! Years ago we had a similar situation-the neighbors called the PD. By the time they arrived things were bacl to normal and we both were pretty much asleep. I didnt open the door. I talked to then through the door. They wanted to see my wife too, I said she was asleep and after a while they left.
To be realistic about it, on the basis of a complaint involving a fight,I suspect they should have seen both of us to insure that neither was injured. However I presume the call was for noise and they observed no noise.

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Better days to be,

Ed
 
Yes, I'm assuming the reason they showed up was a call about domestic violence (some people just don't like loud arguments).

I do have an additional question, Raymond. Now, your partner is holding me in the livingroom of my house. I'ts now 11:00 pm because you guys have been there 45 minutes trying to get my wife to come out and show herself. He's going to stay there until 1:00 am or later so you can get a warrant? And when you do get the warrant, and force my sleeping wife awake at 1:00 am (or later) and find no evidence of abuse, same for my child (I'd assume the warrant would cover everyone in the house) aren't you going to be a bit concerned about lawyers and such? Especially when I did call to my wife (I didn't leave the living room) that the officers wanted her to come out and it was she that refused? with no evidence of my coercing her into that answer?

Now I really do understand the position of the officers concerning D.V. cases, and that they want to be sure that all parties are not getting the snot beat out of them. But, Good Lord, when we have given up our rights to privacy to the point where someone can, under no duress, be coerced by a police officer to show themselves within their own home! It would simply have been easier for the Officers to make a note to have someone come over during the middle of the day (when I presumably would have been at work) and knock on the door. It would have been answer by my wife, and they would have seen her at that time. A little extra work? Sure. A tiny bit deceitful? Yes. Less intrusive and insulting? Absolutely.

As for choosing battles and how expensive they can get. I was uneducated in most of my rights at this time, but a few years later, I was fortunate that I was wise enough to choose my battles well.

We had come to Kali for a long weekend, and my daughter, about 4 or 5 at that time, fell on a sidewalk while running from a clown (she doesn't like them) and broke her elbow. I was cross examined by the doctor, the nurse, a social worker (I think) and the doctor again in the emergency room before they would do anything to help my daughter. We had insurance (HMO) so they didn't need to worry about getting paid, but they were trying to pin this on me as a case of child abuse ... I'm certain of it. this went on for about 4 or 5 hours, none of us had eaten, and I was beginning to get upset. I think if someone had asked me one more time "what happened, exactly" I would have popped. But through my anger, I noticed what was happening and realized that loosing my temper at this point wasn't going to help.

This society is broken, and is in need of some drastic fixes. To assume that someone is guilty of a crime simply because a kid got hurt.

I must apologize for the ramble. My wife is off visiting her mother (This will be trouble when she returns) and isn't here to take my mind off of some of these things. I think I need to go shooting... yeah, that'll help... :)
 
TR,
You must provide your name if asked. The Supreme Court ruled on that just a few years ago. Failure to do so could have gotten you arrested for Obstruction of Justice here in Illinois. Providing a false name surely would have.

The officers shouldn't have left until they ascertained that your wife was indeed okay. In many states they could have entered the room to check on her welfare without a warrant. I personnally would not have left until I saw she was uninjured. The possibility of civil action against me and the department would have been too great.

Some places are passing laws requiring an arrest be made anytime officers are called on a domestic case.

Jeff
 
This scares me, Jeff. Basically what you have told me is that if I want to, simply because I was in a bad mood and you cheerfully greeted me that morning, I could call the police, tell them you were fighting with your wife, and I feared for someone's safety at your house, and they'd come and arrest you or your wife? Just another reason I don't want to move back to Illinois - Land of my forefathers... BTW, what part do you living in?

I know there are some really idiotic laws on the books, and I also know there are some fairly good reasons (on an occasional basis) for why those laws exist. But sometimes I think this society has gone way overboard with the idea that government must protect people from each other.
 
The Supreme Court has NOT upheld the right of a cop to demand your identity. In Kolender v. Lawson, 461 U.S. 352(1983) the Court struck down a loitering statute in California which required a person stopped on the street to produce credible evidence of identity.

In footnote 9, the Court stated "To the extent that [the loitering statute] criminalizes a suspect's failure to answer such questions put to him by police officers, Fifth Amendment concerns are implicated. It is a "settled principle that while police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer." Davis v. Mississippi, 394 U.S. 721, 727, n. 6, 89 S.Ct. 1394, 1397, n. 6, 22 L.Ed.2d 676 (1969)
103 S.Ct. 1855

Footnote 10 recites that the Court left unanswered the question "Whether the individual has a legitimate expectation of privacy in his identity when he is detained lawfully under Terry, whether the requirement that an individual identify himself during a Terry stop violates the Fifth Amendment protection against compelled testimony."

These statements were made in the context of a stop on the street, an area where cops are going to have a lot more latitude than in your home. It is even more unlikely that the Supreme Court would uphold any claim of obstruction of justice because you decline to identify yourself at your home.

The cops have a right to ask you anything, and you have a right to decline to answer -- anything.

The right to shut up does not include the right to deceive. At the federal level a false statement to a federal officer is punishable by 18 USC 1001 up to 18 years, and you can't stop others from giving info to the cops.

But your right to remain silent is pretty strong, particularly in the privacy of your home.



[This message has been edited by abruzzi (edited October 24, 1999).]
 
abruzzi,
I'll get the reference that was posted at the PD and see what it cites. IIRC the case delt with the requirement to demand ID from all the occupants in a vehicle, not just the driver. I do know that we have succesfully prosecuted people on obstruction of justice for refusing to identify themselves. I will post the memo tomorrow. This concerns me as we have been maybe wrongly applying the law.

TR,
I'm in Southern Illinois and while there is no state statute requiring an arrest yet, the Illinois State Police have a new policy that requires them to judge who the primary aggressor is and make an arrest at every domestic call they respond to.

You are right that we are carrying things way to far and we are clogging up the courts with family disagreements. Nothing is usually solved, people still continue to live in abusive relationships. It seems to me that they will no matter what our "benevolent" government does to "protect" them. The number of couples that only want orders of protection enforced when they are fighting etc. would just blow your mind. Just like the "drug war" we are giving up more and more of our liberties so we are protected from the threat of domestic violence. A cottage industry of government and quasi-government agencies has grown up to deal with the problem. We pay for them and provide employment for all of these psychologists and social workers who staff these agencies with our tax money. It seems that the road to slavery is paved with the good intentions of the people who would solve all of our problems for us.

I don't condone violent arguements or physical violence in any relationship, but all the laws on the books don't stop these couples from fighting. Until you have seen a battered spouse waiting at the jail to bond the other one out, by the time you get there, you won't understand what I mean.
Jeff
 
Guys, I ain't a lawyer or an LEO, but following this discussion it looks to me like all are somehow missing the obvious. If the officers involved responded to your home, they already KNEW the name of the resident. They had been called to the scene of a disturbance and were attempting to ascertain that TR was, in fact, that resident.

There is in fact such a thing as home invasions. One thug in the living room refusing to give his name, three more thugs in the bedroom with the residents with guns at their heads, directing the answers described. If I were the responding officer that is exactly how I would describe my concerns to the unidentified individual who answered the door. And I certainly hope that in a similar situation the responding officer refuses to leave until he has seen my bride and myself safe. Considering that a violation of my rights seems rather extreme to me.

A couple months back I wanted the bride to stop at the store on the way home, dialed her cell phone number and got a big surprise. The cell prefix is "914", and I guess I had a runaway finger or something because I got "911". Explained my error quickly and got off, by which time the wife was already in the driveway.

I told her not to get comfortable, and sure enough it was less than 5 minutes before a patrol car rolled into the driveway, so we went down together and chatted for a few minutes and thanked the officer for checking. That was his job, he did it well, and my rights did not enter into it.
 
Sure Larry, but I'll let you in on a little secret. I never even heard of "home invasions" until I moved to Kali from Chicago!

Now, I'm wasn't completely ignorant of what was going on in the world but at that time (the move was about 6 or 7 years ago) Home invasions were something that happend in LA. After moving to San DIego, we never heard of one here until more than a year and a half after we arrived! So 12 years ago, in a small Wisconsin town (pop, maybe 40,000 people) there were burglaries, not home invasions.

And the responding officers don't have to have the name of the person that lives there. Someone called it in, perhaps said "my neighbors are fighting awful loud, and here is the address ... Name? no, I don't know thier name.<click>"

And Jeff, you are correct, it doesn't make sense, yet I have seen people do it. Sometimes, even because the threat exists that if she isn't there, ready to post his bond, she'll be in a world of hurt when he does get out (which will still be posted by her - or him if it's the other way around).

I'd like to thank all of you that have made this such an interesting thread (at least for me) and I'd like to reiterate that I am not nearly as frustrated or upset with the conduct of the officers (they were simply trying to sort out a call they received) as I am with the idiot Landlord. This was not the first time nor the last that they had pushed thier nose into our business, and they bragged about how they interfered in other peoples business, too. Finally the incedences became to great and they attempted to force us into a new lease, at which time we gave notice and moved.

I was just curious, now that I know a little bit more than I did back then, exactly what parts of my knowledge would have put me in good stead and which parts might have landed me in the clink sooner :)

Thanks all

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I know not what course others may take, but as for me, give me liberty or give me death! - RKBA!
 
TR,
In my mind thought would cross, that she might be refusing to show her shelf for the same reason, she would bail you out. There is a manditory arrest law in Iowa of Domestic Abuse. And I am Charged by this law to investigate all Domestic Calls and if signs of abuse are found I must Arrest the Primary Aggressor.

As to the Warrant Issue case law states that, and I think Abruzzi would have to aggree, even if I am wrong, I am imune from damages so long as my actions were reasonable in light of the facts known to me, at the time of my actions.

Example, (extreme for clarity) A friend of your robs a store, and kills the teller. He was using your car at the time. I have the plate number and discription of the car, and a general discription of the Alleged robber/murder. You get your car back and minding your own buisness are driving to the school to pick up your child.

Suddenly you are stopped Ordered out of your car at gun point, forced to lay down in the Street, searched, handcuffed, arrested, and generally treated like a criminal. It maybe hours, maybe days, before the SNAFU is cleared up. Expecially if you invoke your Right to noncooperation.

Were the LEOs right to treat you like a Murder Suspect? NO! You may have poor choice in Friends, but you broke no law.

Were they Reasonable?

Abruzzi,
The High Court, struck down the lottering law, therefor the Demanding of ID became Fruit of the Poison Tree. The Demanding of a person to Identify themselves did not make the law Unconstitutional, it was the The Unconstitutional law, made the Demand for ID an Unconstitutional intrution for both the 4th and 5th amendments.

Even so with the facts that the LEOs had at the time they demanded ID it was Resonable.

Jeff I would say you Court Ruling has not made it to the US Supreme Court as of yet, but I will wait to hear from you.

BTW I find it interesting that Abruzzi made no mention of the 1st Amendment in the Striking Down of the Lottering law. (Right to Peacably Assemble)
 
Raymond: I'm just a little curious: You come to a domestic violence call, and find both husband AND wife injured. How exactly do you decide who's the Primary Aggressor? Flip a coin? Just assume it's the guy? According to some research I've seen, women are about as likely to start the physical violence as men, it's just that we guys tend on average to be a bit stronger than them, take less damage, and dish more out.

If you've GOT to arrest somebody, and it's not transparently clear who started it, what do you do, arrest BOTH of them?

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Sic semper tyranus!
 
Brett,
If it looks like mutual combat, or Assualt/ end to assault, and then retailiatory assault by the other. They both go to Jail. I think I'm the only LEO in the state that does that, and Social Services hates me for it. :)

And yes if the Woman is the primary aggressor then she goes to jail, even if she is marked too. The DEFENSIVE injuries (marks) on the aggresser are easy to see, and not easy to fake.

Social services hates me for that too! :)

Seems most, (not all) Social Services people, think only a man can be guilty of Domestic abuse. I even had one Social Services lady State, "If the man gets beat, he deserved it!!!"

Ain't Equality of the sexes Grand.

[This message has been edited by Raymond VanDerLinden (edited October 24, 1999).]

[This message has been edited by Raymond VanDerLinden (edited October 24, 1999).]
 
Raymond, you are someone that I know I wounldn't mind having as an officer in my community. You sound like you attempt to apply as much common sense to the idiot laws as you possibly can, and I know some of the officers out there are simply following the absolute letter of the law, the heck with what was indended.

So I hope that you haven't taken anything I said here personally. I just think what Jeff said about the amount of interference in our personal lives by the gov't is true. There is just too much of it.

If it weren't for some of the other intrusions into my life by the gov't, this one wouldn't have me quite so defensive, even after 12 years or so.


[This message has been edited by TR (edited October 24, 1999).]
 
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