Police can demand ID, high court rules

[Ben Swenson]

Frank,

At least if you've identified the guy during the Terry stop, you have somewhere to start when you find out that he was indeed the hold-up man you were looking for after all.

I understand how this could be useful to the police, just as I understand how abolishing the 4th amendment and allowing police to search homes without a warrant could be useful in apprehending bad guys. What I'm saying is that where this law forces innocent people to give their identification it's useless, but constitutional. Where it forces guilty people to give their identification, it's useful, but unconstitutional because it forces someone to incriminate themselves.
So, in my eyes it's either unconstitutional, or pointless.

You have no reasonable expectation of privacy with regard to your physical characteristics. For instance, the police really don't need a search warrant to take your blood in a drunk driving case. Nor do they need a warrant to take your picture if they're not detaining you. Most places get one anyway for blood, but I don't believe it's necessary constitutionally. I would argue that your identity fits the same bill.

Physical characteristics are externally observable. You don't have to force someone to tell you what they look like. You can take a picture. Blood tests are a slightly different, more questionable issue - which is why, I'm sure, most areas go ahead and get the warrant.
Forcing someone to reveal their name, address, phone number, social security number, and so forth through threat of prosecution goes beyond that. It's not externally observable unless they've got some hardcopy form of identification that you can see.

I don't think requireing people to ID themselves at a Terry stop, with the new ruling, is any more a violation of the 5th amendment than requiring them to ID themselves while being booked after their actions rise to the level of probable cause instead of reasonable suspicion.

Could be. What happens if you arrest someone for a crime you've seen them commit, and when you arrest them they take "You have the right to remain silent" to heart?

 

[FrankDrebin]

Where it forces guilty people to give their identification, it's useful, but unconstitutional because it forces someone to incriminate themselves.

It's constitutional. The Supreme Court says so.

What happens if you arrest someone for a crime you've seen them commit, and when you arrest them they take "You have the right to remain silent" to heart?

You charge them with a misdemeanor for obstructing, or hampering the booking procedure. You don't have the right to not identify yourself after having been arrested.

When you're arrested on a warrant, the probable cause determination has already been made. How does the police knowing your name incriminate you in the crime for which you're named in the warrant?

Blood tests are a slightly different, more questionable issue

It's not any more questionable at all, the court already ruled on it. The police often go above and beyond what they have to do to secure evidence. The purpose is so that they don't have to waste time in court. Just because evidence is constitutionally siezed doesn't mean that the seizure won't be argued. Getting a warrant just gets us out of court quicker.

 

[Ben Swenson]

It's constitutional. The Supreme Court says so.

*sigh*

You charge them with a misdemeanor for obstructing, or hampering the booking procedure. You don't have the right to not identify yourself after having been arrested.

So they don't have the right to remain silent?

When you're arrested on a warrant, the probable cause determination has already been made. How does the police knowing your name incriminate you in the crime for which you're named in the warrant?

To answer this, I'll quote from Steven's dissenting opinion.

It has "long been settled that [the Fifth Amendment's] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence." United States v. Hubbell, 530 U. S. 27, 37 (2000). By "incriminating" we have meant disclosures that "could be used in a criminal prosecution or could lead to other evidence that might be so used," Kastigar v. United States, 406 U. S. 441, 445 (1972)--communications, in other words, that "would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime," Hoffman v. United States, 341 U. S. 479, 486 (1951). Thus, "[c]ompelled testimony that communicates information that may 'lead to incriminating evidence' is privileged even if the information itself is not inculpatory." Hubbell, 530 U. S., at 38 (citing Doe, 487 U. S., at 208, n. 6).

Given a proper understanding of the category of "incriminating" communications that fall within the Fifth Amendment privilege, it is clear that the disclosure of petitioner's identity is protected. The Court reasons that we should not assume that the disclosure of petitioner's name would be used to incriminate him or that it would furnish a link in a chain of evidence needed to prosecute him. Ante, at 12-13. But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances "reasonably indicate that the person has committed, is committing or is about to commit a crime"? If the Court is correct, then petitioner's refusal to cooperate did not impede the police investigation. Indeed, if we accept the predicate for the Court's holding, the statute requires nothing more than a useless invasion of privacy. I think that, on the contrary, the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands.

A person's identity obviously bears informational and incriminating worth, "even if the [name] itself is not inculpatory." Hubbell, 530 U. S., at 38. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person's identity provides a link in the chain to incriminating evidence "only in unusual circumstances." Ante, at 12.

(Bold emphasis mine)

 

[Ben Swenson]

From Breyer's dissenting opinion:

[In the Terry case, the Court includes] what has become known as the "reasonable suspicion" standard. 392 U. S., at 20-22. Justice White, in a separate concurring opinion, set forth further conditions. Justice White wrote: "Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation." Id., at 34.

Then, five years later, the Court wrote that an "officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond." Berkemer v. McCarty, 468 U. S. 420, 439 (1984) (emphasis added). See also Kolender v. Lawson, 461 U. S. 352, 365 (1983) (Brennan, J., concurring) (Terry suspect "must be free to . . . decline to answer the questions put to him"); Illinois v. Wardlow, 528 U. S. 119, 125 (2000) (stating that allowing officers to stop and question a fleeing person "is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning").

Can a State, in addition to requiring a stopped individual to answer "What's your name?" also require an answer to "What's your license number?" or "Where do you live?" Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances.

Indeed, as the majority points out, a name itself--even if it is not "Killer Bill" or "Rough 'em up Harry"--will sometimes provide the police with "a link in the chain of evidence needed to convict the individual of a separate offense." Ante, at 12-13. The majority reserves judgment about whether compulsion is permissible in such instances. Ante, at 13. How then is a police officer in the midst of a Terry stop to distinguish between the majority's ordinary case and this special case where the majority reserves judgment?

 

[tyme]

If a cop can't come up with reasonable suspicion after picking someone to investigate, I don't think that cop is very good. Reasonable suspicion is an extremely low hurdle. It all hinges on what a cop writes in the incident report and what s/he says when testifying. The slightest stretching of the truth can generate reasonable suspicion. Sometimes no stretching is necessary. Should I be subject to stop-and-identify procedure if I want to go jogging at midnight? I can assure you that jogging at midnight is enough for reasonable suspicion.

Thanks for the dissent quotes. I hadn't gotten around to reading Breyer's dissent, but I will now. I like Breyer, at least with regard to his 1A, 4A, and 5A views.

 

[FrankDrebin]

If a cop can't come up with reasonable suspicion after picking someone to investigate, I don't think that cop is very good. Reasonable suspicion is an extremely low hurdle. It all hinges on what a cop writes in the incident report and what s/he says when testifying.

Care to give us some examples?

To answer this, I'll quote from Steven's dissenting opinion.

Let me know how it works out when you go to court and use the dissenting opinions to support your argument.

So they don't have the right to remain silent?

Under certain circumstances, no. And when being booked, you have to give your name.

 

[arl]

If you don't want a police officer to know your name is it ok, after you refuse to give it, for the officer to assume you are a person wanted for a crime based on your physical appearance alone?

Lady: I was robbed by a big blue guy named Bill. He ran around the corner.

Officer runs around corner and sees a big blue guy.

Officer: "What is your name?"

Big Blue Guy: "I don't have to answer that."

Officer: "OK you are under arrest for robbery."

All of that aside, I think it is important to know who is being delt with. If the government has a reason to deal with a citizen then it has a reason to know exactly who it is dealing with.

 

[Any .45]

Just more ramifications of the goverment wanting and getting more power than they already have. Look at the PATRIOT Act.

 

[FrankDrebin]

If you don't want a police officer to know your name is it ok, after you refuse to give it, for the officer to assume you are a person wanted for a crime based on your physical appearance alone?

Lady: I was robbed by a big blue guy named Bill. He ran around the corner.

Officer runs around corner and sees a big blue guy.

Officer: "What is your name?"

Big Blue Guy: "I don't have to answer that."

Officer: "OK you are under arrest for robbery."

All of that aside, I think it is important to know who is being delt with. If the government has a reason to deal with a citizen then it has a reason to know exactly who it is dealing with.

Depends on the totality of the circumstances. In this case, I would say that this scenario equals probable cause with or without the name. Especially considering how many big blue guys one would be likely to find around the corner just after a robbery. You're not arresting him for robbery based on his refusal to give his name. You're either arresting him based on the description, or on a charge of refusing to give his name.

 

[Ben Swenson]

Let me know how it works out when you go to court and use the dissenting opinions to support your argument.

Heh ... I don't plan on arguing this in court. I don't have the cojones or the money to get arrested for this sort of thing just to fight it. If the time comes that I'm traveling in a state that has such a "stop and identify" law, and am approached by an officer who asks for my papers and I'm feeling particularly charitable towards lawyers, who knows? Until that day, I'll stick to hypothetical debates.

Still, the ruling is - in my opinion - wrong. That the merest majority of the Supreme Court ruled that it is okay doesn't influence me. I've read all of their opinions and many of the supporting cases and think that the 5 who voted to uphold the law failed to do their job. It's wrong for a variety of reasons, but it's unconstitutional because in any instance that it is useful in identifying a criminal, it violates the fifth amendment. In any other case where the law is applied, it is simply an intrusion into an innocent and obviously very private person's life. Hiibel's 5th amendment rights weren't violated, but he was an innocent person unnecessarily fined $250. Had he been guilty of a real crime, and had he been arrested based on the identification he gave to the police, he might well have been able to get off on this technicality. Instead he's innocent, so he's guilty. *sigh* But it seems many LEOs applaud this, probably because it makes their job easier. I can understand that.

I say again, I have no problem with an officer asking for identification, or asking someone's name. I have a problem with people being convicted of a crime for not doing furnishing the information.

 

[alan]

“Obtaining a suspect’s name in the course of a Terry stop serves important government interests,” Kennedy wrote.

Exactly what might these "important government interests" be?

 

[Scott Conklin]

It's constitutional. The Supreme Court says so.

Yep, that's the kind of "logic" that has taken us so far down the road to hell. it's constitutional because a politically appointed and motivated body says so...for now...until replaced by another politically motivated group... So, flat out, Drebin, ANYTHING is constitutional if the SCOTUS says so as far as you are concerned? Anything?

 

[FrankDrebin]

But it seems many LEOs applaud this, probably because it makes their job easier. I can understand that.

We wouldn't want the job of apprehending criminals and convicting them to be any easier than it has to be, would we? What is unreasonable about requiring someone to identify themselves when the police have reasonable suspicion to believe they are, have or are about to commit a crime?

As to the 5th amendment:

Hiibel's contention that his conviction violates the Fifth Amendment's prohibition on self-incrimination fails because disclosure of his name and identity presented no reasonable danger of incrimination. The Fifth Amendment prohibits only compelled testimony that is incriminating, see Brown v. Walker, 161 U. S. 591, 598, and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used, Kastigar v. United States, 406 U. S. 441, 445. Hiibel's refusal to disclose was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish evidence needed to prosecute him. Hoffman v. United States, 341 U. S. 479, 486. It appears he refused to identify himself only because he thought his name was none of the officer's business. While the Court recognizes his strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature's judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him. Answering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances. See, e.g., Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549, 555. If a case arises where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense, the court can then consider whether the Fifth Amendment privilege applies, whether it has been violated, and what remedy must follow. Those questions need not be resolved here. 10-13.

So, flat out, Drebin, ANYTHING is constitutional if the SCOTUS says so as far as you are concerned? Anything?

Anthing a majority of the SC says is constitutional is constitutional until they say otherwise, or until a constitutional amendment is passed saying otherwise. That's the way the system works. It wasn't that long ago that they implied that slavery was constitutional. Or barring certain people from voting. Doesn't make it right, just constitutional. Also, states routinely operate with laws that are unconstitutional. For instance, some states have laws that say certain items of evidence will not be excluded at trial, even if they are seized unlawfully.

 

[Ben Swenson]

Frank,
Please reread my previous post.

Hiibel's 5th amendment rights weren't violated, but he was an innocent person unnecessarily fined $250. Had he been guilty of a real crime, and had he been arrested based on the identification he gave to the police, he might well have been able to get off on this technicality. Instead he's innocent, so he's guilty.

Also, as the dissenting opinions pointed out, "Answering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances." is demonstrably incorrect.

edit:

We wouldn't want the job of apprehending criminals and convicting them to be any easier than it has to be, would we?

Frankly, no. The job isn't supposed to be easy. It's supposed to be hard. The harder it is, the fewer innocents are punished. The easier it is, the more innocents are punished.
It's not supposed to be impossible, but it must be difficult. This is one of the things that separates us from police states.

What is unreasonable about requiring someone to identify themselves when the police have reasonable suspicion to believe they are, have or are about to commit a crime?

That depends on the totality of the circumstances, doesn't it?

 

[FrankDrebin]

Frank,
Please reread my previous post.

I understood your meaning the first time.

Also, as the dissenting opinions pointed out, "Answering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances." is demonstrably incorrect.

The majority didn't agree.

Frankly, no. The job isn't supposed to be easy. It's supposed to be hard. The harder it is, the fewer innocents are punished. The easier it is, the more innocents are punished.

Which court said that? I always thought that one of the jobs of the court was to balance the rights of the few to be free from unreasonable searches and seizures, among other things, against the right of the many to be free from criminal victimization. In other words, to decide what is reasonable.

What is unreasonable about requiring someone to identify themselves when the police have reasonable suspicion to believe they are, have or are about to commit a crime?

That depends on the totality of the circumstances, doesn't it?

Care to give me an example of when it wouldn't be reasonable to require someone who is detained with reasonable suspicion to identify themselves?

 

[Quartus]

Anthing a majority of the SC says is constitutional is constitutional until they say otherwise, or until a constitutional amendment is passed saying otherwise.

By your system, if SCOTUS rules that police have a right use torture of near relatives - say, infant daughters - to extract confessions, that's perfectly Constitutional.

Which court said that?

The higher court of the Constitution itself, Frank. That Court that is ABOVE the mere opinions of the current SCOTUS. That's how the system is SUPPOSED to work. Yes, I know it doesn't work that way. People like you are part of the reason its broken.

I always thought that one of the jobs of the court was to balance the rights of the few to be free from unreasonable searches and seizures, among other things, against the right of the many to be free from criminal victimization. In other words, to decide what is reasonable.

You thought wrong. The job of the Supreme Court is to uphold the Constitution. Interpreting the Constititution is NOT the job of SCOTUS. There is not a shred of support for this in the Constitution, and the FF wrote of their fear of that becoming the practice. Jefferson in particular wrote of his dismay at a Federal Judiciary that was already - in his day - usurping that power.

Frank, you really ought to aquaint yourself with the principles on which this country was founded. You appear to be completely ignorant of the political philosophy of our Founding Fathers, and the moral principles and history which formed that philosophy.

 

[FrankDrebin]

The job of the Supreme Court is to uphold the Constitution.

Which part of the constitution says that? In here somewhere?

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution....."

What does that mean? That the Supreme Court can't decide what's constitutional?

Here's the 4th. amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Who decides what a reasonable search or seizure is? You? Or the court whose judicial power extends to all cases in law and equity arising under the constitution?

and the FF wrote of their fear of that becoming the practice.

In the constitution? Where?

Here's the 5th amendment:

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Where does it explain that "be a witness against himself" means that the police can't use anything he says while in custody without waiving his 5th amendment rights, against him? How do we know that "witness" doesn't mean "a guy who is sworn in under oath in a courtroom"? Does it explain that in the constitution, or did someone "interpret" that? Was it you? Some other Joe Blow? Congress?

By your system, if SCOTUS rules that police have a right use torture of near relatives - say, infant daughters - to extract confessions, that's perfectly Constitutional.

Where in the constitution does it say that torture isn't reasonable under certain circumstances? Slavery was legal until the 13th amendment. In the absence of specific language to the contrary, why wouldn't torture be legal until an amendment says otherwise?

 

[Quartus]

Frank, have you ever read ANYTHING of the Founding Fathers?

 

[FrankDrebin]

Frank, have you ever read ANYTHING of the Founding Fathers?

Why would I have to do that? Didn't they make the constitution pretty plain and easy to understand? Did they draw it up with the idea that we'd have to "interpret" it by studying their lives, but with the understanding that the Supreme Court would not have the authority to interpret it? Does it say that in there somewhere? Or is it implied?

Tell me this: I arrest you for carrying contraband. We go to court and you say the search was unreasonable. I say it wasn't. Who decides?

Here's the 4th Amendment right here:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

You say I didn't have a warrant. I say I didn't need one because the 4th amendment doesn't say I need one. It only says that the search can't be unreasonable and that I can't get a warrant withough probable cause. I say the search was reasonable because you were a dangerous felon who was about to kill someone, and would have if I wouldn't have seized and searched you. You say that doesn't matter and that the search was unreasonable because I didn't have a warrant. Who decides who is right?

 

[jimpeel]

iso1

Well, I have to view this as a good thing, as long as it's not abused. Then, of course, it would be a problem.

Simply name one law or SCOTUS ruling that has not been abused or taken to its farthest extreme subsequent to its implementation.