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Bedlam
Was the guy under arrest,
Bedlam
or just detained for a traffic stop or some sort of half-assed Terry?
§ 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 Subsections (d) and (e), an
offense under this section is:
(1) a Class C misdemeanor if the offense is committed
under Subsection (a); or
(2) a Class B misdemeanor if the offense is committed
under Subsection (b).
(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:
(1) a Class B misdemeanor if the offense is committed
under Subsection (a); or
(2) a Class A misdemeanor if the offense is committed
under Subsection (b).
(e) If conduct that constitutes an offense under this
section also constitutes an offense under Section 106.07, Alcoholic
Beverage Code, the actor may be prosecuted only under Section
106.07.
Bedlam
In Texas the LEO cannot charge for failure to identify during a temporary detention or a Terry.
(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.
Bedlam
A few Supreme Court judges disagree with you...the minority opinion during Hiibel:
Xcathdra
Bedlam
Was the guy under arrest,
He was lawfully detained given the circumstances.
A terry frisk can be performed on persons as well as a vehicle. The officer has to specify the reasons for the frisk - which can include a person behavior, physical or verbal or both.
As for traffic stop - The vehicle was on the shoulder prior to law enforcement contact from what I saw in the video. By definition it was not a traffic stop. What occurred would fall into the category of -
Those factors, in addition to the drivers behavior, created reasonable suspicion that something illegal might be occurring (Domestic Violence / kidnapping / etc), allowing the officers to further investigate the contact.
Lawful detention established -
The above info would allow the officers to require an ID, regardless if he is driving or not. The officers will investigate to see if all is ok, and if so all could go on their way. The person refused to provide a state issued ID and only gave verbal information.
§ 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.
Im not sure what your background is so if you know how to read a law (Im not wording that correctly so I apologize if its come off as rude or condescending).
When looking at a law / statute you will almost always see the following words -
* OR
* AND
(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.
If a statute lists a bunch of elements for a criminal act, and that list uses the word AND, it means all elements of that statute must be broken to be in violation of the law.
Actually under Texas Law you can -
(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.
As for a Terry Frisk an officer must articulate the reason. In this case the guys words / actions, refusal to provide an ID, wanting to argue on the side of the road etc would meet the criteria to terry frisk for weapons / contraband as a matter of officer safety.
A minority ruling has no impact on the law. Only the Majority opinion is applicable.
Secondly, and I don't know if you noticed this, but your information cited deals with stop and identify laws, not failure to identify.
Bedlam
Right, trying to establish that he was not under arrest at that point. You seem to agree - a traffic stop is not an arrest.
Bedlam
But under Terry, the detainee need not reply to your questions. Including a request for identification, unless that is criminalized by the state in a properly constructed stop and identify statute, which IIRC has to be approved by the court. Texas is not one of those states.
Bedlam
Again, state that it was not an arrest at that point. I agree.
Bedlam
That's where you go into the alfalfa. Missouri has such a requirement, Texas does not. I didn't stop to check Missouri, in many states with stop and identify, you cannot under Hiibel require a state issued ID. Just a name. Unless, of course, you are performing a state licensed function such as driving. I bet if you go look, Missouri cannot and does not require you to carry identification at all times. I don't know of a state that does.
Sec. 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND; CRIMINAL PENALTY.
(a) A person required to hold a license under Section 521.021 shall:
(1) have in the person's possession while operating a motor vehicle the class of driver's license appropriate for the type of vehicle operated; and
(2) display the license on the demand of a magistrate, court officer, or peace officer.
(b) A peace officer may stop and detain a person operating a motor vehicle to determine if the person has a driver's license as required by this section.
(c) A person who violates this section commits an offense. An offense under this subsection is a misdemeanor punishable by a fine not to exceed $200, except that:
(1) for a second conviction within one year after the date of the first conviction, the offense is a misdemeanor punishable by a fine of not less than $25 or more than $200;
(2) for a third or subsequent conviction within one year after the date of the second conviction the offense is a misdemeanor punishable by:
(A) a fine of not less than $25 or more than $500;
(B) confinement in the county jail for not less than 72 hours or more than six months; or
(C) both the fine and confinement; and
(3) if it is shown on the trial of the offense that at the time of the offense the person was operating the motor vehicle in violation of Section 601.191 and caused or was at fault in a motor vehicle accident that resulted in serious bodily injury to or the death of another person, an offense under this section is a Class A misdemeanor.
(d) It is a defense to prosecution under this section if the person charged produces in court a driver's license:
(1) issued to that person;
(2) appropriate for the type of vehicle operated; and
(3) valid at the time of the arrest for the offense.
(e) The judge of each court shall report promptly to the department each conviction obtained in the court under this section.
(f) The court may assess a defendant an administrative fee not to exceed $10 if a charge under this section is dismissed because of the defense listed under Subsection (d).
Bedlam
Well, actually I do know how. Under clause a, the officer can require ID if the person has been arrested. I think we both agree he was not under arrest. Under arrest, you DO have to provide such information. That's not unusual, a quick perusal of other state laws seem about the same.
Bedlam
Now, if you moved 2 and 3 up to clause 1, you'd have a stop and identify statute, which Texas does not have.
Bedlam
If a statute has a definitive clause such as "intentionally provides a false name", then the subsequent qualifiers only pertain if that clause is violated. In this case, nothing in (b) is valid unless that occurs.
Therefore clause a only pertains if the person is arrested. Clause b only pertains if the person lies to the officer. They are not conditions of each other.
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.
Bedlam
Nope. Only if he intentionally gives a false or fictitious name et al.
Bedlam
And during a Terry stop, you need not provide pedigree info unless you are in a stop and identify state, which Texas is not. Hiibel vs Nevada, IIRC.
Bedlam
Roll back to the actual post. You stated "Requesting pedigree information is not a violation of anyone's civil rights.
There are situations where an ID can be required, and this case is one of them.
Requesting / requiring Id has no incrimination attachment. Could you please clarify / explain how you arrived at this conclusion? (respectfully asking)"
To which I replied that four of nine Supreme Court justices feel that it DOES have an aspect of incrimination. I'd say they were pretty well versed in the law. So, yes, people who actually are the top of the heap in legal issues feel that it does. So, I don't think that it's crazy, out-of-line or uninformed to think as they do. Respectfully replying.edit on 9-3-2014 by Bedlam because: (no reason given)
bigfatfurrytexan
reply to post by Bedlam
This is correct. In Texas you do not have to provide an ID. They will ask you if you know your DL number, which they will run. If you don't know it, then they will ask you your name, and cross check/verify some other stuff (address, etc). It is also the law tha tyou have to update your address when you move. I think you get 2 weeks, if i recall. I typically ignore that one. I think its stupid.
It is easy to give a name of someone else. I have know a few folks who have had "bad" cousins give their name int he past. One girl was a black chick with green eyes. The traffic ticket noted brown eyes, not green. She had it dismissed, and they went to get her cousin instead.
Xcathdra
reply to post by diggindirt
Sorry I misunderstood your request -
A traffic stop being a technical seizure under the 4th Amendment -
Cornell Law - BRENDLIN v. CALIFORNIA 2007
Restrictions placed on speech is cited in my last response. In those rulings an obstruction charge can be permissible under state law (per Federal appeals ruling with no further challeneg), when specific, when language moves from protected to non protected speech. The Hill decision is geared towards a 3rd party. The Supreme Court has ruled an officer's peace cannot be disturbed, removing that argument (restricting law enforcement's use of that statute). Hence Obstruction.
The info below is the Wikipedia breakdown.
Brendlin v. California, 551 U.S. 249 (2007)
was a decision by the Supreme Court of the United States that held that all occupants of a car are "seized" for purposes of the Fourth Amendment during a traffic stop, not just the driver.
Opinion of the Court
A person is "seized" for purposes of the Fourth Amendment when physical force or a show of authority terminates or restrains his freedom of movement. If the police's intent to restrain an individual is unclear, or if an individual's submission to a show of authority takes the form of passive acquiescence, a seizure does not occur unless a reasonable person would not feel free to leave in light of all the circumstances. If, however, the person has no desire to leave for reasons unrelated to the traffic stop, there is no seizure.
Before the Court's decision in this case, the law was clear that a traffic stop seized the driver of the car. The Court had also repeatedly suggested—but never formally held—that a traffic stop in fact seizes everyone in the vehicle. With its decision in this case, the Court expressly so held. "We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission."
A traffic stop necessarily curtails the freedom of movement of all within the vehicle, and a reasonable person riding in a stopped vehicle would know that some wrongdoing led the police to stop the vehicle. At the same time, any occupant of the vehicle cannot be sure of the reason for the stop. "If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no reasonable passenger would feel free to leave in the first place." Moreover, no passenger could expect an officer to allow him to move around in ways that might jeopardize the officer's safety.
The California Supreme Court went astray by making three assumptions with which the Court disagreed. First, it reasoned that Brendlin was not the initial focus of the police's investigation, being concerned as they were with verifying the registration of the car, which Brendlin did not own. But the Court pointed out that this reasoning ignores the focus of the Fourth Amendment on what a reasonable person would believe, not the subjective intentions of the officers. Second, the California court reasoned that Brendlin was not in a position to submit to the officers' show of authority because only the driver of the car could do so. But the acts that constitute submission to a show of authority depend on what the person was doing beforehand. As a passenger in a vehicle, Brendlin could not affirmatively submit until the vehicle was stopped on the side of the road. Third, the California Supreme Court resisted the conclusion the Court drew because it feared that occupants of cars merely stuck in traffic would also be "seized" under a contrary holding. But the Court noted that "incidental restrictions on freedom of movement would not tend to affect an individual's sense of security and privacy in traveling in an automobile." Indeed, the California court's holding was a kind of incentive for the police to conduct "roving patrols" that would violate the Fourth Amendment rights of drivers.
ETA (Not trying to be disrespectful / condescending so if you are familiar with my comment here just disregard) - US Supreme Court rulings will apply to all states and commonwealths / territories of the US unless otherwise noted. As an example, in Tennessee vs. Garner The US Supreme Court ruled that law enforcement could not shoot a fleeing felon in the back unless that felon posed an immediate risk to the public at large.
That ruling applied to the state of MO (my state). However, under MO law the criteria established for use of deadly force was any felony. Which means if a person tries to write a bad check, they are technically committing a felony, and MO law would allow deadly force to be used.
With that being said, in MO blue book (state statutes issued to law enforcement / any one who wants one) it specifically noted the Supreme Court ruling and noted MO law was in violation of it. So its possible to have legal definitions being different from state to state. The US Supreme Court is the law of the land, so it over rules MO law.
Another example is the federal HIPAA Law (medical). While it is a Federal law, it is defined by state laws.edit on 5-3-2014 by Xcathdra because: (no reason given)
diggindirt
Now that was a lot of reading and some of it I admit to not being clear in my mind. (It is cases like this that make me miss my law professor so much.) However, it does say that a passenger is seized when the traffic stop occurred.
"When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop."
But your assertion that a seizure automatically seizes the rights under the 1st and 4th isn't supported by this case. In fact it is just the opposite. In this case a car was stopped without probable cause and the passenger was subsequently arrested for an outstanding warrant.
diggindirt
Rather it says that because he was seized without probable cause---the cop admitted that he did not know the suspect was in the vehicle---it would follow that any search or seizure of evidence would be inadmissible because the original stop was without cause.
That fact caused the SCOTUS to vacate and remand the case to the state to reconsider if suppression hinged on something other than an illegal seizure.
"Brendlin was seized from the moment Simeroth’s car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest. It will be for the state courts to consider in the first instance whether suppression turns on any other issue. The judgment of the Supreme Court of California is vacated, and the case is remanded for further proceedings not inconsistent with this opinion."
Yes, they did say a seizure occurs but there is nothing to indicate that the "seizure" included seizure of the passenger's 1st and 4th Amendment rights. Rather they did say that he has rights under the 4th to challenge the proceedings from the time the illegal stop commenced.
diggindirt
The court relies on what a reasonable person would believe. In the posted video, a reason person would believe that the cops were telling the truth when they said they were just making sure everything was okay.
diggindirt
The civilian in the video cooperated to the best of his ability by giving them the info they requested.
diggindirt
They developed an attitude problem when he objected to their illegal search of the vehicle.
diggindirt
When the civilian objected, the officer was halfway inside the vehicle and yet stated that he wasn't searching the vehicle. Seriously? That's the first lie by the police officer to the detainees. How would a reasonable person react to observing a police officer opening the door of the vehicle and sticking half of his body into the van? I believe that a reasonable person would see a search being conducted and would point out that he had not given permission to search.
diggindirt
It was the police officers who developed an attitude and accused the civilian of "coming out with attitude that you don't need to take" or words to that effect. It was the police officers who used vulgar language with the civilian even though he had not threatened or demeaned them in any way that I can see.
diggindirt
When he exposes the abject ignorance of the officer in regard to "jackboots, Nazis and Gestapo" the cop gets the attitude about what anyone can say to him. Calling a cop a name he doesn't like is not illegal. Especially when the name fits as it does in this case. These guys were acting exactly like Gestapo. The only difference between these guys and Gestapo is that Gestapo had the law on their side and these guys don't; they are simply acting as though they do as they perform an illegal search on a vehicle. Then they go on to "make up" law and write him citations for crimes he has not committed.
diggindirt
Your reasoning about the manner that the vehicle is parked is moot since at no time did the officers even mention the position of the vehicle nor were the citations given having anything to do with the position of the vehicle. Not applicable at all in this situation. These officers far exceeded their authority and were obnoxious in doing so.
diggindirt
You say that court is the place to argue this but why should courts continue to be clogged up with innocent people who have to take time off from work to attend the court proceedings just because an officer has an attitude about people who know their rights and are not afraid to assert them? Please explain how justice is achieved in this case. The guy was completely innocent of wrong-doing and yet he is cited into court because two jackboots found him offensive, meaning that he has to spend probably at the very least, half a day sitting in a courtroom waiting for his case to be heard or sitting waiting for someone to address his concerns. Is that justice?
diggindirt
I sat in a courtroom last summer in our small town (16k+) and watched at least two dozen cases get dismissed because citations had been issued when no citation was required. I have spoken with both the judge and the DA about this situation and they are quite perturbed about it but they turn your argument the other way---we're not the police and we can't stop them from writing citations, even if those citations are the result of the officer being upset with the civilian.
diggindirt
You say to work with the legislature. I did and I am. I am currently attempting to bring law enforcement in Kentucky into the cyberage.
diggindirt
So now we must go back and adjust the statute once more, this time to make AVIS the primary source of valid information and in some
....sniped for room.....,
no foul---right? No, absolutely not. Those people had to take time from their lives, in this case a couple of students missed classes they had paid to attend just because a cop didn't like their looks. There is nothing just or right about that.
diggindirt
The reason we have a set of laws by which to live is generally believed to be that we can find justice through the application of the laws. How does one find justice in the case of the civilian in the video? Are the police pursuing law and order in society by violating laws and wrongfully sending people to the court system?
diggindirt
The cops in the video threatened to take the guy to jail because he had an attitude---yet there is no statute in Texas or any other state of which I'm aware that says having a "attitude" is illegal, much less an offense deserving of jail.
diggindirt
The most this situation could have produced was some sort of improper "stop" or "parking on a highway" but that issue was never mentioned.
diggindirt
I also worked with legislators on the law under which I was stopped on Thursday as I related in my earlier post. I knew the law because I was in contact with legislators each and every time the bill moved in the legislature so I know the exact wording and intent. It isn't unclear at all. It applies only to vehicles manufactured after 1981, therefore it cannot apply to a vehicle manufactured in the 1970s. And yet the young man who wrote me the ticket told me he would take me to jail if I didn't comply with his illegal demand for my license, registration and proof of insurance. He stood in the street and simply made up law despite the fact that I had handed him a true copy of the statute and requested that he check it for accuracy. It is my intent to see that he is made aware of the error of his thinking in the most effective manner available to me. He won't be the first to find out that some civilians know their rights and cops can be disciplined for their unethical and illegal behaviors.
diggindirt
Sorry, didn't mean to write an entire brief...but you got me thinking and that's a good thing---even if we disagree.
Xcathdra
Sorry I meant to state the Majority opinion is whats used.
I stated minority so my mistake - apologies.
Xcathdra
In reference to Supreme Court rulings and minority / majority opinions and their application -
If minority opinions were valid, we would not have Obama care and we would still have campaign finance reform bills in place (although if wishing made it so..... but we put our dreams away..)
Bedlam
Xcathdra
Sorry I meant to state the Majority opinion is whats used.
I stated minority so my mistake - apologies.
However, we're not talking about court decisions on this one. To paraphrase you "I can't understand why you feel giving your name and address implicates you, can you explain why", to which my answer was "even Supreme Court justices felt so, and they are better on law than either of us, so it's not an unreasonable thing to think"
Bedlam
If you'd read the reply for understanding, you'd have seen I made it clear I was replying to your request for some explanation of why we unwashed masses didn't leap to give you personal info. I understand about majority opinions. Really, I do. But if you ask for my opinion of why I feel that way, and I give you an example of Supreme Court justices who agree with me, it's a corroboration of my opinion you asked for, not a confusion on my part.
Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt.[1] It is the opposite of inculpatory evidence, which tends to prove guilt.
In many countries, including the United States, police and prosecutors are required to disclose to the defendant exculpatory evidence they possess before the defendant enters a plea (guilty or not guilty).[2]
Per the Brady v. Maryland decision, prosecutors have a duty to disclose exculpatory evidence even if not requested to do so. While the prosecution is not required to search for exculpatory evidence and must disclose only the evidence in its possession, custody, or control, the prosecution's duty is to disclose all information known to any member of its team, e.g., police, investigators, crime labs, et cetera. In Brady v. Maryland, the U.S. Supreme Court held that such a requirement follows from constitutional due process and is consistent with the prosecutor's duty to seek justice.[3]
Bedlam
I think you got it on two posts above. The statement wasn't intended as an extension of the stop and identify thing just a reply to "why does this bother you".
Bedlam
I agree with one of the SC judges who said the question implies that you are investigating me and are trying to get info to that end. That was the only reason for bringing it up.
Bedlam
And a lot of times you guys ask that info for intimidation purposes to be honest, at least in my experience.
Xcathdra
The assertion is valid because a traffic stop does not require probable cause. A traffic stop only requires reasonable suspicion that a crime occurred (whether it be speed / lane violation / DWI / etc). In the case of the op a few posts up is my response dealing with Texas specifics and supreme Court rulings on actions taken by those 2 officers. Their contact was valid / lawful and the request for ID was valid under supreme court rulings and Texas state law.
Xcathdra
TX Penal Code 521.05 Link Sec. 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND; CRIMINAL PENALTY.
(a) A person required to hold a license under Section 521.021 shall:
(1) have in the person's possession while operating a motor vehicle the class of driver's license appropriate for the type of vehicle operated; and
(2) display the license on the demand of a magistrate, court officer, or peace officer.
(b) A peace officer may stop and detain a person operating a motor vehicle to determine if the person has a driver's license as required by this section.
Approaching an individual in a parked car is the same as approaching an individual on a public street; Police may ask questions without implicating the 4th amendments protections.
The roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute "custodial interrogation" for the purpose of Miranda.
Sec. 521.025. LICENSE TO BE CARRIED AND EXHIBITED ON DEMAND; CRIMINAL PENALTY.
(a) A person required to hold a license under Section 521.021 shall:
(1) have in the person's possession while operating a motor vehicle the class of driver's license appropriate for the type of vehicle operated; and
(2) display the license on the demand of a magistrate, court officer, or peace officer.
(c) A person who violates this section commits an offense. An offense under this subsection is a misdemeanor punishable by a fine not to exceed $200, except that: ..........
(d) It is a defense to prosecution under this section if the person charged produces in court a driver's license:
(1) issued to that person;
(2) appropriate for the type of vehicle operated; and
(3) valid at the time of the arrest for the offense.
Xcathdra
sean
Forced to have ID, Forced to hand it over. The state and police already has that info in the computer. So the officer preemptively forces you into agreement to incriminate yourself, for breaking some law that you don't even know you broke.
Requesting pedigree information is not a violation of anyone's civil rights.
There are situations where an ID can be required, and this case is one of them.
Requesting / requiring Id has no incrimination attachment. Could you please clarify / explain how you arrived at this conclusion? (respectfully asking)
As for the last comment -
I think it is safe to say that the guy in the video should know the law if he is going to start citing it - yes? no?
edit on 9-3-2014 by Xcathdra because: (no reason given)