Having gone through a pretty lengthy discussion of this the other day on my original diary on Daniela Watts detainment, my understanding is considerably improved - and this is simply a read out of that understanding - but as before, if any practicing attorneys see something I've said that's wrong, feel free to chime in. I'll fix it.

Firstly on Hiibel, yes, the court upheld the right of an Officer to obtain personal ID during the course of investigating of a possible crime, but they also ruled that this decision was dependent on that state having a "Papers Please" ID law on the books.

Notice that the Protective League press release says that Hiibel was a case against the "Sixth Judicial District of Humbolt County". They left something out there. It was the Sixth Judicial District of Humbolt County, Nevada - not Humbolt County, California, and that makes a difference because they, again, were ruling on the Constitutionality of a "Papers Please/ID Law" - and California doesn't have one of those anymore.

Such a law might be Constitutional if we had one in California (or Minnesota), but we don't so in many respects Hiibel is a moot point here. It doesn't apply in this state.

Furthermore unless an officer is detaining you or arresting you, you do not have to provide them any information at all, although you can if you choose to, consensually.



At any time, police may approach a person and ask questions. The objective may simply be a friendly conversation; however, the police also may suspect involvement in a crime, but lack "specific and articulable facts"[4] that would justify a detention or arrest, and hope to obtain these facts from the questioning. The person approached is not required to identify himself or answer any other questions, and may leave at any time.[5] Police are not usually required to tell a person that he is free to decline to answer questions and go about his business;[6] however, a person can usually determine whether the interaction is consensual by asking, "Am I free to go?"

Police may briefly detain a person if they have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Many state laws explicitly grant this authority. In Terry v. Ohio, the U.S. Supreme Court established that police may conduct a limited search for weapons (known as a "frisk") if they reasonably suspect that the person to be detained may be armed and dangerous. Police may question a person detained in a Terry stop, but in general, the detainee is not required to answer.[10] However, many states have "stop and identify" laws that explicitly require a person detained under the conditions of Terry to identify himself to police, and in some cases, provide additional information.

Using the construction of the California appellate court in Solomon, the Court held that the law was unconstitutionally vague because it gave excessive discretion to the police (in the absence of probable cause to arrest) whether to stop and interrogate a suspect or leave him alone.[3] The Court hinted that the California statute compromised the constitutional right to freedom of movement.[

In Brown v. Texas, 443 U.S. 47 (1979), the Court struck down Texas’s stop-and-identify law as violating the Fourth Amendment because it allowed police officers to stop individuals without “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity.”

If a person is being detained because they are under "reasonable suspicion" of being involved in a crime, a police officer may ask for your ID, but whether you're required to provide it isn't so simple.As I said above California doesn't have a "stop and identify" law, but it used to and that law was California Penal Code 647(e) which required that persons suspected of committing the misdemeanor of "loitering" were required to provide "valid ID" was struck down by the Supreme Court under Kolender v Lawson for being vague.Besidesthe Supreme Court also struck down a Texas ID law as similarly vague and granting police too much power inBasically the court upheld Nevada's "stop and identify law", after striking down both Texas and California's as granting the police "too much power". So we seem to have a conflict. One decision says Police can compel ID, two others another says they can't. Nowandboth predateso that later case should prevail. Except that essentially this is about whether these laws themselves areand as of right now, California has no law requiring people to submit their ID to police while under suspicion of committing a crime.

The simple fact that Nevada has a "Papers Please" law doesn't mean that Californians are bound to abide by it. You may have to provide your ID in Nevada, but not in California contrary to what LA Police Chief Charlie Beck said yesterday there is no state law requiring it currently on the books In fact, after CPC 647(e) was effectively struck down by Kolender, it was later repealed on request of the Los Angeles Sherriffs Department.

Hiibel which answers the question of whether Nevada's ID law was Constitutional simply does not apply in California because we don't have that law, or a similar one in place anymore.

The Press Release of course, ignores all of this.

And to support their contention, absent Hiibel, they claim that the California Appellate Courts have ruled in support of their position. Only the link they provide to bolster this point doesn't go to a California Appellate Court decision. It goes to a Newsletter PDF from the Alameda County Prosecutors Office.

http://le.alcoda.org/...

Sorry but they're not an Appellate Court. Alameda County says in the Newsletter that you are required to provide ID and that if you don't you can be arrested for obstruction.



REFUSAL TO ID: If a detainee will not identify himself, there are several things that officers may do. For one thing, they may prolong the detention for a reasonable time to pursue the matter. As the Court of Appeal observed, “To accept the contention that the officer can stop the suspect and request identification, but that the suspect can turn right around and refuse to provide it, would reduce the authority of the officer to identify a person lawfully stopped by him to a mere fiction.”109 Officers may also arrest the detainee for willfully delaying or obstructing an officer in his performance of his duties if he refuses to state his name or if he admits to having ID in his possession but refuses to permit officers to inspect it.

I particularly like the line about the authority of the officer being a "mere fiction", if someone has the temerity to not answer a question, because it seems to me that the 5th Amendment is apparently ain the minds of the Alameda Country Prosecutors Office. Lovely.

The claim that officers may arrest someone for failing to comply with an order to show ID, also seems to run directly opposite to the language of Hiibel.



Under those principles, an officer may not arrest a suspect for failure to identify himself if the identification request is not reasonably related to the circumstances justifying the stop.

148. (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

LAPD seems to be trying to slide by this portion ofin order to threaten arrest to force compliance, and since their isn't a California ID law their doing it under Penal Code 148(a)(1). The Protective League refers toas justification, which isn't valid in to this jurisdiction, then quotes from an County Prosecutor that directly contradictson whether people can be punitively arrested for asserting their rights. This view also contradictswhich requires that the request for ID have some specific grounds of "reasonable suspicion" related to a current investigation.

That they had to go all the way to Alameda County to get this opinion struck me as strange. And also that they tried to pawn it off as an Appellate Court Opinion when it isn't. The reason for this became clearer as further in the release they reference the Appellate Court again, and this time get the link right.

https://www.courtlistener.com/...

They also just happen to use the exact same quote that I mention above when referencing the link, at which point I then came to realize was taken from People V Long (same case as their valid Appellate Link), a decision by the 6th District California Court of Appeals. That's an appellate court that is located in San Jose, and includes a jurisdictional area around the South East San Francisco Bay - right next door to Alameda.

Apparently they linked to the Newsletter because it contained a quote from the Appeals Court, then later just linked right to the Appeals court decision that the quote came from in the first place. Pure Gen-i-us.

Anyhoo.

Despite what the Protective League says, there are other authorities on this matter besides them and Prosecutors - such as the ACLU.



“The LAPD says. 'If we are investigating a crime, you have to show us your identification.' To put it bluntly, that is not true." When Watts refused to produce her ID, said Bibring [director of police practices for the ACLU of Southern California], the officer had a decision to make. Since the alleged lewd act was no longer in progress, he could either let her go or continue to investigate it, which would involve asking the person who complained to come forward to make a complaint — technically, a citizen’s arrest. If the complainant declined (Neiman told me that, in his 28 years of policing, he has never seen anyone make a citizens arrest over consensual sex), he can’t detain her for simply refusing to produce her ID. “In California,” said Bibring, “an officer cannot arrest someone for refusing to provide identification, even if you are being investigated for a crime.”

The final question I have right now is: How does that San Jose Court's decision apply to LA? Are all the California courts bound to abide by their decision?

Well... No! [Updated to "Kinda" Below!]

As it stands right now California Appellate Courts are in fact split on this issue.

Via Shanikka.



The California appellate courts are split: 1/2 of them follow the CA Supreme Court decision post-Kolender, People v. Long, which said that the fruit of a search that followed a person's failure to identify himself or herself to a law enforcement officer did not have to be suppressed. The other 1/2 of the state appellate courts say that Long does not apply at all because in that case, the issue was suppression of evidence, and not the straightforward question of whether it is a crime in California in and of itself to refuse to identify yourself to a police officer when you are not being accused of a crime.

[I'm still researching on which side of this split the 2nd District Appellate Court - which is in Los Angeles - Stands. More to come on this point! What I can say now, thanks to shanikka again, is that lower Courts within each District will tend to follow the ruling of their local Appellate, even if they don't technically have to. Courtsthat District can follow the same ruling, if it's brought up in trial or a judges decides to cite it, or others if they choose. So if you wantmight apply in LA, or it might not.]

In Long, (which took place back in 1987, before Kolender and 17 years before Hiibel and is therefore superseded by them both) the situation was that a Police Officer noticed a person in a bar he thought was intoxicated on something besides alcohol. He requested ID, but the person didn't refuse on any Constitutional Basis. He said he didn't have any ID. So the Officer asked to see his wallet figuring their was probably an ID document in it, but the person said there wasn't. After a bit of a scuffle the officer gained access to the wallet and found that it did have ID in it, it also had several packets of methamphetamine. As a result I can see why some of the appellate courts don't think this case really should apply as a stand in for the "show ID" law we don't have anymore. This was about someone lying to try and keep the Officer from finding incriminating evidence, and then trying to suppress that evidence, it wasn't about him protecting his right of privacy.

I think, as some attorney's like shanikka have said, the presumptions made by LAPD over Long are ripe to be directly challenged to resolve the Appellate Conflict in the California Supreme Court. The fact that Police are using an Obstruction charge in lieu of having an ID Law, as a means to create a de facto ID Law after the one we used to have was struck down by Kolender, then repealed, is troubling. They seem to be directly defying not just the will of the Supreme Court, but of the people as well.

In the effort to aid public safety, we should have some clarity on this issue. People should know where their rights end, and the powers and responsibilities of the police begin. Unfortunately this document by the LAPD Police Protective League, really doesn't do a decent job of providing that service.

Vyan



H/T to Paolo Antico for providing me the Protective League Document.

As I said I was asking for corrections: Here are some.



Contrary to what your diary seems to suggest, neither Brown nor Kolender address this issue, although stop and identify statutes were involved in those cases. Brown is a case about detention. It says that cops need reasonable suspicion to detain and the Constitution says that a law cannot make you identify yourself when not legally detained. Kolender is about vagueness. Laws cannot be so vague that a person doesn't know what is necessary to comply and a police officer is left to determine this. Hiibel ruled that non vague stop and identify statutes that require identification upon lawful detention are constitutional. Dicta (not binding authority) in the case suggests that absent a stop and identify statute, identification is not required. Long and Loudermilk are two california cases (from the eighties, so quite stale) that suggest that you can be lawfully arrested for not identifying yourself, once lawfully detained. In California, unlike the federal system, it makes no difference whatsoever which appellate district the decision comes from, the decisions are equally binding across the state. There are no splits of opinion in California appellate courts (contrary to what Shanikka says without citing any case that disagrees with Ling or Loudermilk). The most recent appellate case supersedes a prior one from any district if the facts are not distinguishable. Your inquiry re: San Jose vs. Los Angeles is misguided for that reason.

It is a common misconception that the Fifth Amendment protects your right to remain silent. The Supreme Court has ruled over and over that it only protects your right to not incriminate yourself and that identification is not incriminating, except under a hypothetical situation where your name itself is evidence that you are guilty of a crime.

As I said, in practice, you will normally be arrested (for a 148), fingerprinted, and eventually identified (or given an alias) if you fail to identify yourself to an officer while detained. While no appellate court has ruled in either direction on whether this actually constitutes a 148, in practice, police (and trial courts) act as if it does.

I knew thatwas about vagueness and said so. I noticed the detention issue inbut didn't elaborate. Shanikka did describe the jurisdiction issues the way you do, I was probably unclear because I was trying to figure out if their might be a different rule for LA County. There isn't, but apparently it could go either way particularly if one argues that[just like Kolender & Brown] is irrelevant since it was a case concerning evidence suppression rather than ID per se.Well that's thoroughly a downer. It seems to me, we need a test case to challenge and straighten all this out, particularly at the appellate level. The world has changed, particular with ongoing NSA surveillance and completely non-illegal information being fed from people's private email, and personal web traffic into fusion centers which can be accessed by the JTTF. You can give you name, and how are you to know that someone with that name isn'tThat's what happened to the guy the Ferguson cops beat up while handcuffed then charged him with "property damage" for bleeding on their uniforms. More and more giving your name actuallypotentially incriminating, even if the SCOTUS hasn't yet realized it.

And then again there's this which was posted in response to the above.



Did your research include the case of People v Quiroga 16 CA 4th 961 which holds specifically that until you reach the booking stage refusal to give your name can not be charged under penal code section 148 in California? That case holds that prior to detention, upon detention, after arrest in the car on the way to the police station, it is not resisting or obstruction to refuse to give your name. If you are on parole or probation the rules are different, but there is still a little bit of america left here in the state of California even if police manuals say different.

This sounds like the other appellate case that Shanikka indicated has split the California courts. [Was looking for this] So - I think - if your in a case and the prosecutor asserts, you or your attorney should bring up. That should make for some interesting fireworks.

And also this in response to the Alameda County Prosecutor's view and seems to be closing a significant loophole.



41. The California Peace Officers Legal Sourcebook ("CPOLS") [note: text not available online] written by the office of the California Attorney General) maintains that failure to identify oneself does not constitute a violation of California Penal Code §148(a)(1), resisting, delaying, or obstructing a peace officer: Unlike Nevada and 20 other states, California does not have a statute mandating that a detainee identify himself, and that obligation cannot be read into Penal Code Section 148. (Rev. 1/08, p. 2.14a)

This may not matter, but I believe that as holder of a State-wide Office that what the California Attorney General has to say should take precedence of what the Alameda County Prosecutor says, particularly if you aren't in Alameda County at the time.

Ok, I took a moment to take in all the various comments, as well as the 600 comments from my previous diary on this and I think we can just about square the circle.

Police are essentially alleging they have the authority to demand ID when "reasonable suspicion" exists on the basis of Hiibel at the Federal level and Long and the State Appellate level. The first counter argument is that Hillbel is inappropriate because it was a question of the Constitutionality of Nevada's "Papers Please" law when California own Papers Please Law had already been rendered moot by Kolender. Prosecutors could argue that Kolender doesn't apply because the issue there was vagueness, but that case did invalidate CPC 647(e), so Police have gone from using a vague law to trying to stretch 148(a)(1) to do what the original 647(e) can no longer do. The argument that Long allows them to make this stretch is undercut by the fact that that case wasn't really about being required to provide ID, but instead was really about an attempt lie in order to suppress evidence and the fact that Quiroga from the 4th District specifically does address the issue of whether 148(a)(i) can be stretched to recreate a phantom version of the repealed 647(e) and directly states that It Can't. In addition this final view over stretching 148(a)(i) has been endorsed and verified by the California Attorney General in the Peace Officers Source Book.

Now, does this give someone like Daniele Watts an actionable case based on what she experienced? Again, IANAL (yet), but I think not. Officers did not cross the line drawn by Quiroga and charge her with obstruction or interference under 148(a)(i) for her initial refusal to provide ID. They might not have done that because her boyfriend eventually provided the ID, but be that as it may they did not in this case cross a Constitutional Line. They ran up and did a River Dance on the line with their passive aggressive humiliation and intimidation tactics, but they didn't technically cross it.

In my non-expert opinion, Daniele may have a better case not on the ID issue, but on the detention issue. She verbally made it clear that she intended to leave and Sgt Parker didn't make it clear that she was being detained as part of an investigation and was required to stay. He LET he walk away and then simply called other Officers in to retrieve her. As I've said before, Passive Aggressive, and ultimately abusive when he starts asking her "Who put yourself in handcuffs?" And then later "I have the power here". These are diametrically opposed. If she's the one responsible for getting herself put in handcuffs, then She's the One with the power to direct events, but if he's the one with the power it really doesn't much matter what she does, now does it?



Last point, TMZ now has pictures that they say confirm that Daniele was having sex in public. I think this changes nothing. If these people, who were so brave as to sell their voyeur pictures to TMZ - who make their living on being voyeurs - had instead provided this information to police in the first place, the question of requiring Daniele's ID would have changed nothing in terms of the "investigation" of this incident. Who she is, has no bearing on what she did or didn't do. LAPD's continued insistence that they need information that isn't relevant to any real investigation, and their reliance on the threat of obstruction to compel compliance is really a problem. It's a bad pattern and it's not getting any better.