Archive for the ‘Criminal Law’ category

Must You Identify Yourself to Police?

August 4th, 2016


In the wake of the recent (August 2016) shooting death of Korryn Gaines, a number of people have posed questions to me about 1) the “sovereign citizens” movement, and 2) whether you are required, by law, to identify yourself to the police.

As to the sovereign citizens question, I’ll point you here, as it’s a very broad topic, and there are lots of takes on it, but this one I find to be very insightful:

A number of websites address the question of “Must you identify?”, and several of them, not surprisingly, are posted by sovereign groups, their adherents, or related folks who propound various “philosophies.”

A lot if it’s blather, pseudo law.  For example, from one, regarding police cars:  “Their car lights and sirens are to only go on if there is an investigation.  Therefore they must identify to you the investigation, and your part in it.”  In fact, their lights and sirens have nothing to do with an investigation; they’re there for safety reasons, and when they can – and when they must – turn them on is governed by state law, so it varies by state.  (E.g., some states require them when they exceed the speed limit, if they’re going against traffic lights, etc.)

Some of the case law they are citing is outdated and has been superseded or modified by subsequent cases.  Some of it is just people reading the law to say what they want it to say.  Most importantly, though, much of the law they are citing is taken completely out of context.  That’s the whole reason we lawyers have to give the citation when we quote the law – so others can review that we’re using it correctly.

While you are not required under federal law to show identification to an officer – because by law, a citizen isn’t required to have any “papers” – you are required to identify yourself.  (You can be required to carry relevant ID when driving or when traveling on a commercial airline.)  If you have no ID, they’re generally supposed to take you at your word unless they have an “articulable suspicion” (probable cause) for not doing so.  The Constitutional questions implicate the Fourth (Search & Seizure), Fifth (Self-Incrimination), and Fourteenth (Equal Protection and Due Process) Amendments.

As an example of taking the law out of context (or perhaps, just not knowing how to read and understand it), one site attempts to address the question of whether you can be arrested for “failure to identify.”  The key point of what they claim is this, which they claim summarizes a Supreme Court case:

Kolender v. Lawson (461 U.S. 352, 1983) in which the United States Supreme Court ruled that a police officer could not arrest a citizen merely for refusing to present identification.

What the Supreme Court actually said in Kolender was related only to a specific law in one state, California:

Appellants stress the need for strengthened law enforcement tools to combat the epidemic of crime that plagues our Nation.  The concern of our citizens with curbing criminal activity is certainly a matter requiring the attention of all branches of government.  As weighty as this concern is, however, it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity.  See Lanzetta v. New Jersey, 306 U.S. 451 (1939). Section 647(e), as presently construed, requires that “suspicious” persons satisfy some undefined identification requirement, or face criminal punishment.  Although due process does not require “impossible standards” of clarity, see United States v. Petrillo, 332 U.S. 1 (1947), this is not a case where further precision in the statutory language is either impossible or impractical.

We conclude § 647(e) is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.  Accordingly, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

Kolender v. Lawson, 461 U.S. 352 (1983) (emphasis added).

So, the Court does not make a ruling at all on whether someone can be required to identify.  Instead, it is a question about whether a California law, as it was written, was unconstitutional.  Anything else they say in the discussion is “dicta” – side chatter.

What they’re taking out of context is references to a landmark case (which is still our touchstone and guideline case for stops and searches), Terry v. Ohio, 392 U.S. 1, 1968.  Terry is actually still the basic rule, regarding searches and “stop and frisk.”  Recent cases, however, have “trimmed” the protections provided by Terry.  [My software says that other courts have referred to Terry 38,856 times, reaffirming it 6,619 times, and pointing out its limitations or differences from other rules 368 times, but otherwise just pointing to it to say, “This is the rule.”]

You can read the whole case in your spare time:  Kolender on Google Scholar

Generally speaking, though, the Supreme Court has upheld state laws requiring ID, so long as they are Constitutional.  In Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004) [a case out of Nevada originally, where a man was asked 11 times for his name, and refused 11 times], the Court said:

The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop.  The reasonableness  of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.”  Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979).  The Nevada statute satisfies that standard.  The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop.  The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity.  On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration, Place, supra, at 709, 77 L. Ed. 2d 110, 103 S. Ct. 2637, or its location, Dunaway, supra, at 212, 60 L. Ed. 824, 99 S. Ct. 2248.  A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.

While we recognize petitioner’s 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.Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004)

For more:  Hiibel on Google Scholar

So, it’s important to know the specific rule(s) in the state where you are.

Finally, with regard to the discussion above about the Fifth Amendment and the right against self-incrimination, it is important to recognize that the Court has recently ruled that to maintain your right against self-incrimination – that is, the right to not answer questions – under the Fifth Amendment to the U.S. Constitution, you must affirmatively state that you are exercising that right.  Therefore, if you do not wish to answer questions, in order to stop the questions and prevent your refusal from being interpreted as an implication of guilt, you should state, “I am exercising my Fifth Amendment right not to answer questions at this time.”  See Salinas v. Texas, 133 U.S. 2174 (2012).

For more:  Salinas on Google Scholar

It’s also important to understand that the Hiibel case was decided 5-4, which means if heard today, it would have been a tie, and whatever the lower court had decided would have remained the rule.

When You Come To Court

October 28th, 2013

I don’t do much criminal defense anymore, but when I was just starting out, I worked as a court-appointed attorney for a few years. The following is from a handout I prepared for new clients.  Most of it applies equally to plaintiffs in civil court, but we usually have more time to prepare those clients.

Every day in court, there are hundreds of examples of people who obviously do not take court seriously.  Whether or not you take court seriously, the judge does, and I do.  In the worst cases, the judge may actually tell someone to wear different clothes the next time they come if they want to be taken seriously.  So that you’re not embarrassed by having the judge tell you to go home and change, and in order to do everything you can to help your case, please follow these suggestions.  They really can make a difference.

Be on Time

Calendar call begins at 9:00.  The deputies begin giving instructions at 9:00 or before 9:00.  If the District Attorney calls your name and you’re not there, he or she will generally not call you again until the end of the morning, and sometimes not until the end of the day.  Also, if you are there a little early, it will give us a chance to review your case before court, since sometimes I do not have a chance to meet a client face-to-face until court day.  Sometimes, I have to be in two or three courtrooms on the same day, so I may not be there to answer up for you when your name is called.

Dress Appropriately

The judge usually wears a robe, or sometimes a suit.  Attorneys wear suits.  We do this out of respect for the courts, much the same as you dress nicely for church on Sunday, out of respect.  As a general rule, dressing for church would be a good guideline for what to wear to court, but you don’t need to dress real fancy, even if you dress up for church.  In any case, you should look more like you’re on the way to church than on the way to a barbecue or the club.

I realize not everyone has a big wardrobe, and you have to make do with what you have.  However, there are several things you should not wear to court, if at all possible:

  • No Hats.  No do-rags or other headgear.  The deputies will make you take off hats, do‑rags, even sunglasses on your head.  It’s easiest just to leave them home or in the car.
  • No Shorts.  Wear long trousers, or for ladies, trousers or a skirt.  If you wear a skirt, it should not be one that attracts attention.  Yes, it can get hot in the courtroom, but looking respectable can make a difference in whether the judge believes you.
  • Don’t Say More Than You Mean To.  Avoid clothes that have messages on them, whether it’s a sports jersey with a team name, a T-shirt with a marijuana leaf, or a shirt you thought was funny.  Court is not the place for making those statements.  What do you think the judge will think if you’re wearing a red T-shirt that says “My Common Sense Took The Day Off”?
  • No Underwear.  T-shirts are underwear, even if people often wear them out, and boxers hanging out may be street, but it doesn’t buy you credibility in the courtroom.
  • Put It Together.  Tuck in your shirt.  If you have a tie, wear it.  Pull up your trousers.  Big, dangly jewelry, key chains, or wallet chains move when you walk.  Movement draws attention.  All of that may work to get you attention on the street or in the club, but you want the judge to notice and remember as little about you as possible.  You may be sitting in court for several hours, so wear comfortable clothes that are neither baggy nor too tight.
  • Be Respectful.  You may not like the judge.  You may think the officer who arrested you is a jerk.  You may be mad at the person who charged you with trespassing.  In the courtroom is not the place to share that.  If you treat the judge respectfully, you’re more likely to be treated with respect in return.  If the person testifying against you is angry or rude, you’ll look even better by comparison.
    • The judge is “Your Honor,” “Judge,” “Ma’am,” or “Sir.”
    • The DA is “Madam District Attorney” or “Mister District Attorney.”
    • There may be “cops” in your neighborhood, but in court, they’re “police officers.”
    • Even if you’ve never called the man you got in a fight with anything but “Billy Bob,” in court, he’s “Mister Jones.”

“E.T., Phone Home”

We take them with us everywhere now, we call people all the time, and we take calls all the time.  In court, cell phones must be turned off.  You can usually just turn the ringer off, but unless you’re expecting an emergency call, I recommend turning off cell phones, pagers, Blackberries, and so forth completely.  If it rings in court, the deputy will definitely take it away.  Some of the deputies will take them away if they see you texting in court.

Little Things

Whether or not you realize it, people notice little things.  They may not even realize they notice them, but they affect how people see you.  After all, if people didn’t notice, why would you wear them?  Here are a few little things that you’re better off leaving home:

  • Pot Leaf Earrings.  It doesn’t matter how many diamonds are in there.  It sends the message “I do drugs” (whether you do or not).
  • Grilles.  Judges, on the whole, are boring people.  They’re not impressed by “cool.”  In fact, if you’re flashing a lot of gold when you explain how you need extra time to pay court costs, you may find the judge doesn’t have a lot of sympathy.
  • Tattoos.  Tattoos are very personal.  They may be in memory of a friend or family member.  They may show your loyalty to a fraternity or club.  Some of the big, beautiful ones are expensive art.  In court, where you can, it’s best to keep them personal, because not everyone considers them “respectable.”  You can’t leave them at home, so keep them in mind when you dress.  It doesn’t mean you’re ashamed of them or embarrassed, it just means that you don’t want them to be a silent part of the conversation you’re having with the judge.
  • Anything you’d have to explain to your grandmother.  Many judges are older, and were lawyers for many years.  They grew up in a different world.  Think about what your grandmother would understand and approve of.  Play it safe, and be conservative.