Thursday, July 24, 2014

Legal Talk - When can a cop ask you for identification?

Cops love to overstep their bounds and trample on your rights.  Some people choose to just do what they are told and let the cops tell them what to do.  Some people choose to "go along to get along."  If that isn't you, if you want to exercise your rights when confronted by "the man," then this article is for you.  The "go along to get along" folks may say,

Well why are you doing that?  Why are you being difficult? You haven't done anything why don't you just do what the cops ask? They are just doing their job, stop being so difficult.

To the "go along to get along" folks.

The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men. -Samuel Adams

For the people that are tired of the intrusion, who are tired of the people who weren't cool in high school and are are now in a uniform wielding the sliver of power they have over everyone. Here is what you can do. Exercise the rights you have.

When you have an interaction with a police officer and they ask you to identify yourself, here are your legal rights. Remember, there is a point that we need to clarify before we get started.  Producing 
identification and identifying one’s self are two different things.  To clarify, producing identification means providing a law enforcement officer with a physical object that identifies who you are.  Identifying yourself can be a simple communication of your first and last name.

When do you have to give your license to a police officer?

You are only required to produce your actual physical driver’s license in two separate scenarios.

1.         You are the driver in a motor vehicle that is pulled over in a checkpoint that comports with Brown v Texas  443 U.S. 47 (1979) and more specifically State vs Deskins,  234 Kan. 529 (Kan. 1983) 

(Remember the police have to stop everyone not just random stops of individuals)

The applicable test:
[A] weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U.S. at 50–51, 99 S.Ct. at 2640–2641.

The factors that are considered in determining if a specific instance is satisfied by the test.
Numerous conditions and factors must be considered in determining whether a DUI roadblock meets the balancing test in favor of the state. Among the factors which should be considered are:

(1) The degree of discretion, if any, left to the officer in the field;
(2) the location designated for the roadblock;
(3) the time and duration of the roadblock;
(4) standards set by superior officers;
(5) advance notice to the public at large;
(6) advance warning to the individual approaching motorist;
(7) maintenance of safety conditions;
(8) degree of fear or anxiety generated by the mode of operation;
(9) average length of time each motorist is detained;
(10) physical factors surrounding the location, type and method of operation;
(11) the availability of less intrusive methods for combating the problem;
(12) the degree of effectiveness of the procedure; and
(13) any other relevant circumstances which might bear upon the test. 

Not all of the factors need to be favorable to the state but all which are applicable to a given roadblock should be considered.  State v. Deskins, 234 Kan. 529, 541, 673 P.2d 1174, 1185 (1983)

2.         If you are driving a motor vehicle and you are pulled over by a law enforcement officer and there is at least articulable and reasonable suspicion to believe that the driver or a passenger in the motor vehicle was engaged or had engaged in criminal conduct. Brown v Texas  443 U.S. 47 (1979)  This instance is better explained in Delaware vs. Prouse  99 S. Ct 1391. (1979)

“Except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.Delaware vs. Prouse  99 S. Ct 1391. (1979)

*Note: This rule may be expanded slightly in US vs. Hensley 469 US. 221. (1985).  Only if the stop originated from a stop and inquiry in reference to wanted person in which the officer believes that the occupant of a vehicle was a person depicted on wanted poster. 

When do you have to tell an officer your name?

It depends on the circumstances.  An officer can always ask you your name.  But just because they ask doesn’t mean that you have to answer, you are only obligated in certain scenarios.  Additionally, in some instances even if he/she does have the right to ask and the requirements are met that would require you to answer the state may have no mechanism to prosecute you even if you refuse to identify yourself.

Complicated right?  This is the only time you are obligated to identify yourself other than the two scenarios listed above in which you must provide a physical identifying document.

You only have to identify yourself when the officer is stopping you because he or she has reasonable suspicion that you may be involved in criminal activity. Hiibel vs. Nevada, 124 S. Ct 2451. (2004)   You also can still refuse if you have a reasonable belief that identifying yourself will incriminate you in a crime.

Now that being said, there is some wiggle room here.  To date 23 states have passed “stop and identify” laws. These laws allow an officer to stop anyone and ask them to identify themselves.  The other 27 or so have not passed a similar law.  However, The Hiibel ruling overrides any of the text in the stop and identify laws, so they all have that qualification.  As to the other 27 states, even if you meet the Hiibel requirements and would otherwise be required to identify yourself, but still refuse, the state might not have a way to prosecute you.  But I’ll leave that up to the prosecutors to figure out.  My guess is they would charge a person whom refused with obstruction or a like or similar charge.

If you have made it this far you have figured out that the most important questions to answer in determining if you have to identify yourself is…

“What is Reasonable suspicion?” And..

“How will I know if an officer has reasonable suspicion to believe that I may involved in criminal activity?”
Well that isn’t exactly clear.  The Supreme Court has tried to give guidance as to what “reasonable suspicion” means.  The guidance they give is limited, essentially, they say it’s a case by case basis.  Here is the quote.

"Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are commonsense, non-technical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. As such, the standards are not readily, or even usefully, reduced to a neat set of legal rules." Ornelas v. U.S., 517 U.S. 690. (1996)

So how do you know if an officer has reasonable suspicion to believe that you may involved in criminal activity, and thus you are required to identify yourself?  That’s easy.  Ask the officer if you are free to leave.  An officer can only detain you if they have reasonable suspicion based on objective facts, that you are involved in criminal activity. Brown v. Texas, 443 U.S. 47. (1979)  If they don’t have reasonable suspicion then you are free to leave and thus don’t have to identify yourself.
 If an officer says you are free to leave you have won the battle.  Leave.  Let them bother the "go along to get along" folks.

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