portland independent media center  
images audio video
newswire article reporting portland metro

police / legal

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.
Satisfy 08.Aug.2005 14:23

Cliff Notes

I've always found it interesting that, in our 'free' society
one can be compelled by law to utter words (your name or anything else)
to the government against your will.

From what I understand, in Oregon, one must identify himself
to a police officer if asked. The officer can use any legal means
to identify you "to his/her satisfaction". Stating your name and DOB
may satisfy some cops. Other officers may not be "satisfied", and transport
you to their ID unit for positive identification, or call your mommy,
or your boss, or do anything else they may think up.

Seems kind of like the US 5th amendment would cover this:
...nor shall be compelled in any criminal case to be a witness against himself...

But then a "stop & ID" is not a criminal case (at least yet).

Of course there are several instances where the US Supreme Court
closes it's eyes, i.e. Refusing the breathylizer test is not OK. Even
though you obviously are being compelled to give evidence against yourself.

Don't forget, you must submit to a search at the airport, even though
they have absolutely no probable cause to beleive you are a wrong-doer.

The list goes on and on.

Dear Cliff, 08.Aug.2005 15:49

not a lawyer

I'm not a lawyer, but it appears you aren't, either. Having to take a breath test is called implied consent, and every state has an implied consent law. Basically, when you get your driver's license one of the things you agree to do is to take a test to determine your level of sobriety if a police officer asks you to. The Oregon Motorist Implied Consent Law is in ORS Chapter 813 if you want to consult the text.

As far as the airport screening goes, one of the conditions to entry to the terminal portion of the airport is that you undergo a search. Certain places have certain requirements that must be met for you to gain entry there. A good example is a club downtown. Different clubs have different conditions, but two common ones are a cover charge and a dress code. If you don't pay the cover and aren't dressed appropriately, then you don't get in. In much the same way, if you don't agree to be searched, you will not be admitted to the airport.

I'm sure, for you, the list goes on and on. I am also confident that for each example of a seemingly unconstitutional search you would care to post I could tell you, in layman's terms, why it is lawful.

Private is Private; Public is Public - the Codified Right to Travel in Public. 08.Aug.2005 22:06

xyster

The private club may require shirt and tie, just like I may ask someone entering my home to take his or her shoes off. Neither can compel either however, so if you don't like ties, or really have a thing for wearing shoes all the time, the door swings both ways, and you haven't lost much not entering the fancy restaurant, and you're probably much better off not entering my home anyway :-)
Unfettered transportation through our nation should be a constitutional right, though apparently it's been codified in case law and our nation's other formative articles.
In the 1980s I remember our country's concern over USSR internal police state policy "your papers please..."
Now, we aren't far from the dissolved USSR's "your papers please" policy as normal operating procedure in our country - that's very sad.

Albeit often in the name of safety, I agree with Ben Franklin's statement:
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
 http://www.ushistory.org/franklin/quotable/quote04.htm
 http://en.wikiquote.org/wiki/Benjamin_Franklinonly

 http://www.usconstitution.net/constnot.html#travel
"In U.S. v Guest, the Court noted, "It is a right that has been firmly established and repeatedly recognized." In fact, in Shapiro v Thomson, Justice Stewart noted in a concurring opinion that "it is a right broadly assertable against private interference as well as governmental action. Like the right of association, ... it is a virtually unconditional personal right, guaranteed by the Constitution to us all." It is interesting to note that the Articles of Confederation had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights."

Dangerous and naive democratic ideals are aiding & abetting Bin Laden!!! 09.Aug.2005 11:52

Fauxlosopher fauxlosopher@yahoo.ca

All that naive democracy and freedom stuff has become dangerously antiquated after 911.Nowadays if you don't quickly submit and comply with the Gov.;Homeland Security;the police;the republicians etc. then you're a "pro-terrorist" sympathiser who is aiding and abetting Bin Laden!

identification 09.Aug.2005 20:40

karl roenfanz ( rosey )

i answere the cops with the same amount of respect they question me with, i identify my self the same way i do here, if ya'll don't like that , tough.

1306 john evansville. ind. 47714

Thanks for posting this... 10.Aug.2005 13:42

Drew Hendricks

Olympia Copwatch 360-870-3127

I've used this loophole in WA state law several times myself. The things to remember:

If you're under arrest or suspected of a crime, they get the ID.
If you're not under arrest and you're not driving a car or buying liquor, they don't get the ID.

Stay calm, use your 'I know what I am doing' tone at all times, and be polite, but firm.

Give your first name; it humanizes you and lets them refer to you as something other than 'boy' or 'hey you.' When they ask for your full name restate your first name and let it hang there in the air. Wait for them to ask the next question.

If they ask for the ID, gently remind them that you are not operating a motor vehicle or buying alcohol. Do NOT say "No, pig, fuck you." Do NOT say "I don't have to." State it in a way that shows that you understand the law, and let the withdrawal of consent be stated by your actions.

If you feel uncertain of how to say this, just keep your mouth shut. Tell them that you have the right to be silent, and that you have the right to leave unless they are detaining or arresting you. Then leave, if you don't want to face them.

Never ask permission; say "I am going to leave" not "Can I leave?" If you're not free to go, she will let you know that immediately.

NEVER TOUCH THE OFFICER OR TRY TO SHAKE THEIR HAND. (they can bite without warning.)

Remember that the police officer's job is to fool you into compliance, and your job is to assert your rights to be free of interference. This is especially important when you are videotaping police behavior, or documenting an event. Keep the camera on the action, if the action should be the focus.
Train it on the police officer only long enough to document who is interfering with your role.

Stay safe, play scenarios with your friends to practice your lines, and stay within your competence zone. KNOW YOUR ROLE*

*(Why are you there? What is the officer trying to accomplish? Are they distracting you from some documentary work you're trying to do? etc)

Thank you 10.Aug.2005 15:25

JR

Thanks for not shitting all over my article. I work as a janitor, so this has a double meaning.