Washington case brings "stop and identify" laws into focus
A Clark County man's convictions are dropped due to an illegal request for identification
The Columbian reported on August 5th about a Clark County man whose criminal convictions were thrown out by the state Supreme Court. Byron Brown was a passenger in a car stopped in January 2002, and he was asked for his identification. He was subsequently searched and arrested for having a fraudulent credit card, and later was convicted of 22 felony counts relating to identity theft.
Because police had no reason, and therefore no right to ask Brown for his identification, the convictions have been dropped. Brown was not a suspect in an investigation, or otherwise involved in an investigation, which means there was no reason to ask for his identification.
A 2004 court case in Washington, State of Washington v. James B. Rankin, the state Supreme Court ruled that police can't request identification from vehicle passengers "for investigative purposes, absent an independent basis for making the request."
If this applies to vehicle passengers, surely it applies to anyone else who comes into contact with police, who isn't the subject of an investigation. The Columbian article points out that other states besides Washington, such as Minnesota, New Jersey, and New Mexico have similar laws which equate the request for identification with unlawful seizure. But 20 states allow police to demand identification, and in June 2004, the U.S. Supreme Court upheld a Nevada law, (by that famous 5-4 vote), that makes it a crime to refuse to give the police your name when stopped for suspicious behavior. Suspicious behavior could be interpreted as just about anything, and "stopped" in this case doesn't only refer to being pulled over in a car, but any police-initiated confrontation.
In that case, Hiibel v. Sixth Judicial District Court of Nevada, the focus was on whether or not it's illegal to refuse to tell the police your name. Larry Hiibel was standing next to his truck when a Nevada policeman asked him what his name was. He refused to give his name, and was arrested and convicted for violating Nevada's "stop and identify" law. He was fined $250. It's hard to tell what the suspicious behavior was in that case, but the Supreme Court ruled that Hiibel's constitutional rights, such as the right to remain silent, were not violated when he was arrested.
It's still up to states to determine whether or not it's legal to refuse to identify oneself to police. In the Washington case, it's assumed that the failure to identify means first of all failure to give one's name, and that it's perfectly legal to refuse to tell an officer your name, or say anything. That means there's a big difference between the Washington and Nevada laws. The Columbian article isn't too clear on that point however—whether a request for identification means asking for a name, or proof of identification, such as a driver's license. I'm assuming that it refers to both.
I read the Columbian article with particular interest, because on February 17th of this year I was confronted by two Vancouver policemen outside my apartment, and was asked for identification.
It was nighttime, and I was coming home, walking along a sidewalk that leads to my apartment. One of the officers was in front of my apartment, and as I was getting close, he came closer to me and shined his flashlight on me. He asked me if I was the guy he was looking for, who turned out to be a guy that hadn't lived in my apartment for nearly a year. I said no, I wasn't the guy. He then asked me if I lived there, motioning to my apartment, which I was getting closer to. I said yes, I lived there. His partner then came around to the front of the apartment, apparently from the side of the apartment. It appeared that he was either over there looking for this guy in the bushes, or taking a look into the bedroom window on that side of the apartment.
The first officer asked the second one if I was the guy they were looking for. The second officer apparently knew what the subject looked like. He said no, I wasn't the guy. I then explained that I knew who the guy was that they were looking for, and that he didn't live there anymore. One of the officers told me that my apartment was the guy's last given address, (though he hadn't lived there for nearly a year). I had the impression that the guy they were looking for was in a lot of trouble, and so they were checking out any places where they thought he might be. This impression added some gravity to the situation, from my perspective. I also happened to be surprised by the appearance of two policemen in front of my apartment in the first place.
The first officer then asked, "You got some ID on you?" He knew that I wasn't the guy he was looking for, so this request for identification is really puzzling. I have to assume that it was just to see if I would obey the request or not. At the time though, I was too surprised to consider that I didn't have to give identification or even say anything. I obediently handed over my driver's license, and while the first officer ran my name and license number through dispatch, the second officer asked me, redundantly it seemed, if I had any warrants for my arrest, etc...
There was some more back and forth, and then I was told that I was free to go into my apartment and sit down. Right away I felt foolish for blindly obeying the request for identification. Not only was it foolish, but probably irresponsible. I later found out that the guy the police were looking for was wanted on an arrest warrant stemming from a DUI conviction—that's why they were looking for him. That didn't exactly seem like the crime of the century. The mystery was why it mattered at all to police who I was.
After that incident, I thought about the 2004 Supreme Court ruling, and considered that maybe it was illegal now to not hand over identification, and that maybe I could have been arrested that night if I hadn't obeyed. But after reading the Columbian article, I realized that Washington's law isn't as strict as, say, Nevada's, and that these laws differ from state to state.
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