Talk:Stop and Identify statutes

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[edit] Sources for section 'How to satisfy the minimum required duties'

This section has been marked as needing sources by User:198.239.71.118. It is merely a legal-analysis extrapolation based on the information provided previously in the article and should require no additional sources. Jkatzen 03:48, 15 June 2006 (UTC)

Maybe so, but where are the sources for that? [Note:Different person] 68.39.174.238 03:55, 16 August 2006 (UTC)

[edit] List

Don't forget Texas. 205.240.146.58 21:51, 21 July 2007 (UTC)

So ... what about Texas should not be forgotten? JeffConrad 22:17, 21 July 2007 (UTC)
It too has this kind of thing, only its called "Failure to ID", a criminal offense. 205.240.146.58 03:12, 22 July 2007 (UTC)
Texas Statutes, Penal Code, §38.02(a) (2003) applies only to a person who has been “lawfully arrested”, so it isn’t really a “stop-and-identify” law in the sense of the others. The law once applied to anyone who refused to identify himself “... to a peace officer who has lawfully stopped him and requested the information.”; I assume it was revised in response to Brown v. Texas, 443 U.S. 47 (1979). The current version probably would be a good example for the Arrest section, however. JeffConrad 05:41, 22 July 2007 (UTC)

[edit] On the "How to satisfy the minimum required duties"

As helpful as this section is for someone not familiar with the law, I do not believe that it belongs in an encyclopedia. If someone feels the same way, please remove this section (or rephrase it). As mentioned above, Wikipedia should not be in the business of advising people on the law. It should only state facts which can be cited. Now, if you could find a reliable source for this information, and you rephrased it so that it wasn't directly advice on how to give the cops the least information possible, then I would be OK with it.Njerseyguy 05:52, 24 August 2006 (UTC)

You are totally right. Even though it pretends not to be so, this section is legal advice, and therefore amounts to an illegal practice of law. Even if it weren't it doesn't add anything that a sensible person cannot figure out from the first part of the article. I deleted it. --151.203.239.219 07:29, 11 December 2006 (UTC)
I disagree. I would characterize it as a more detailed explanation of what the law involves and how it operates. I feel like the first questions any reader will have when seeing the initial information is, "How does this work in practice, what rights are triggered, and what does it entail?" Jkatzen 08:48, 12 December 2006 (UTC)

Regardless of the merits of leaving this section intact, at least one piece of information is factually incorrect: "If the person is under arrest, that will likely be very obvious, and the suspect will be read his Miranda rights." Police are NOT legally required to read the Miranda warnings to a suspect after an arrest. They are ONLY required to read the warnings to an arrested individual before the the arrestee is questioned. See Miranda v. Arizona, 384 U.S. 436 (1966), at 467: "At the outset, if a person in custody is to be subjected to interrogation, he must first be informed..." (emphasis added). Miranda and subsequent decisions do NOT require all arrestees to be informed of their Miranda rights (only arrestees who will be interrogated), nor do the cases require the reading of the Miranda rights immediately after arrest (only before the beginning of interrogation).

[edit] Edits of 18–22 May 2007

I've tried to clean things up a bit. A few specific comments:

  • I added numerous direct citations of sources; accordingly, I removed the unsourced tag. If anything, the Notes now seem excessive.
  • I tried to rewrite the Obligations section so that it gives less appearance of legal advice. The links to the ACLU publications provide advice from legal professionals. I added the last paragraph in the section because asking a cop about the state's "stop-and-identify" law during a stop seems a bit unrealistic; if someone thinks this is too blatant, remove it.
  • I tried to convey that the implications of Hiibel are not quite as simple as the listing of states with "stop-and-identify" statutes in the opinion might suggest.
  • I eliminated the section Determine stop status because it seemed redundant in light of the section describing types of police interactions with the public.
  • I left the subsection Arrest, but I question whether it's really relevant. In light of Hiibel's holding that stating one's name is not incriminating, I could see no point in the paragraph that began "Some have argued ...", so I removed it.
  • Is there a reason the article title is "Stop and Identify statutes" rather than "Stop and identify statutes" or "Stop-and-identify statutes" (it is a compound adjective)? It seems to me that the page should be moved to one of the latter two.

JeffConrad 17:28, 18 May 2007 (UTC)

I've removed a number of words that didn't really provide much additional information. I still think there are far more than necessary. If you insist on putting the words back, I'm not going to quibble, but I think Strunk's advice that "every word tell" is as valid as ever. The leaner and meaner the prose, the more readable the article. A few specifics:

  • "Consensual" was mentioned just a few sentences earlier; is it really necessary to repeat? "Consensual" even seems a bit of a stretch in many cases, especially when initiated by the police.
  • A contact is not a stop.
  • That "stop-and-identify" laws apply only to detentions is mentioned at the beginning of the interactions section; is it really necessary to repeat it so shortly thereafter?
  • I'm not sure what "without any suspicion that the person is involved in a crime." really adds. Doesn't "At any time", without any qualifications, essentially cover it?
  • The distinction between "statute" and "law" is important. Statutes are enacted by the federal and state governments; local jurisdictions usually enact ordinances. It's also conceivable that a "stop-and-identify" requirement could be a part of administrative law.

If people feel that some additional descriptions of complying with obligations would help, I'm not going to quibble, but this doesn't really seem the place for legal advice. Despite disclaimers (which require following several levels of links), someone is bound to misunderstand and get herself in trouble. If something is necessary, the procedure would seem quite simple:

  1. Be aware of the laws before you need to know them. Would you really seek legal advice from a peace officer who is detaining you?
  2. Determine whether you are free to go (you're either detained or you are not)
  3. Be very sensitive to the officer's demeanor and body language, and decide which battles to choose.

It seems to me that the ACLU, et. al. pamphlet covers this quite well, and were I to consider a challenge to a person with a gun, I'd probably put greater stock in the ACLU than a Wikipedia author. It's possible to add a few other sources, such as Katya Komisaruk's Beat the Heat or Ira Glasser's DVD, but again, I wonder if this is the place.

I'm also not convinced that things are as settled as many seem to believe. Hiibel didn't specifically hold that a peace officer cannot require identification, even in a place without a "stop-and-identify" law. The mention that California's "stop-and-identify" law was voided in Kolender v. Lawson has figured prominently in many analyses. However, at least two post-Kolender cases in California, People v. Long (1987) 189 Cal.App.3d 77 and People v. Loudermilk (1987) 195 Cal.App.3d 996, held that an involuntary search for identification was permitted under Terry. The circumstances of these cases were somewhat different in that they involved motions to suppress evidence, but the reading of Terry still seems a bit incredible. More recent cases, such as People v. Medina (2003) 110 Cal.App.4th 171 and People v. Garcia (2006) 145 Cal.App.4th 782, have distanced themselves from this view, but it still suggests that it isn't over until its over. Garcia did not cite Hiibel because again, the issue was a motion to suppress evidence rather than "obstructing" an officer (Penal Code 148). JeffConrad 04:36, 19 May 2007 (UTC)

I've tried to clean up the section on interactions with police while addressing Jkatzen's objections to the 18 May edit--see what you think. There also were a few minor technical errors: 1) the Fifth Amendment applies at all times--only the warning is triggered by arrest, and 2) "stop-and-identify" laws well may apply to arrest as well as detention.

In my previous comment, I didn't make it sufficiently clear that the post-Kolender California cases did not involve "stop-and-identify" laws. They did, however, indicate potential consequences of refusing to provide identification when requested. For example, by having the police search his wallet (they found baggies of meth), Long got himself in far more serious trouble than if he had presented the ID himself (although I'll concede that he might have been arrested anyway for other reasons). In any event, possibly another reason for an encyclopedia article to avoid giving legal advice. JeffConrad 09:24, 20 May 2007 (UTC)

I've corrected the section on Detention (the gist of the last sentence was inadvertently deleted in a previous edit). I've tried to clarify the section on Arrest, but I'm still not satisfied with it. The application of "stop-and-identify" laws to arrest is at this point speculative, and would seem somewhat of a moot point. Previous versions strongly implied that the Fifth Amendment privilege against self-incrimination would somehow allow an arrested person to refuse to give his name. Hiibel makes it clear that that is not the case. It probably is not determined whether a "stop-and-identify" law without a specific provision for post-arrest identification could require an arrested person to give his name. Some states have other laws that require it, and such laws presumably would not run afoul of the Fifth Amendment.

With all do respect, I think the sentence added to the first paragraph under Interactions with police detract from the article rather than enhancing clarity or readability.

  • The term "consensual" would seem to imply that such an encounter imposes no obligations; even if this isn't self evident, the third sentence states it explicitly. Is it really necessary to also say it in the introductory paragraph? That paragraph simply identifies the categories of interaction rather than describes them--the descriptions are in the individual sections.
  • A law is most assuredly not an exercise of police authority. Enforcement of a law may be, but this is true for enforcement of any law that has not been voided; this differs from a judicially-established power such as a "Terry stop". That the U.S. Supreme Court upheld the validity of "stop-and-identify" laws is mentioned in the second sentence of the article and in the section on Detention; is it really necessary to mention it a third time?
  • I've removed the suggestion that "stop-and-identify" laws might apply after arrest; a law requiring post-arrest identification probably would not be termed a "stop-and-identify" law. In light of this change, I wonder if there's any point in mentioning in the introduction under Interactions. Withholding a name after arrest would seem a silly strategy in most cases; a person is unlikely to be released under any conditions without signing a promise to appear, and if the person gets booked and has identification, it will be taken at the time of booking and the person's identity revealed anyway. I suspect that in most cases, a person who refused to giver her name to a judge would be held in contempt of court, as is specifically mentioned in Vermont's "stop-and-identify" law. JeffConrad 09:02, 22 May 2007 (UTC)

Um ... stated otherwise, the second sentence in the first paragraph under interactions seems a mighty long way of saying "Stop-and identify laws apply to detentions", if such a statement is needed at all. Of course, a similar observation could be made of my previous comment ... JeffConrad 23:14, 22 May 2007 (UTC)

[edit] Links to “stop-and-identify” statutes

With the current configuration of the New York Legislature web site, there is no obvious way to provide a direct link to CPL 140.50. Is a link to the New York law lookup better than nothing? JeffConrad 20:00, 4 September 2007 (UTC)

The same holds for New Mexico. JeffConrad 20:37, 4 September 2007 (UTC)

[edit] Detention

I've trimmed a few superfluous words, but still ask, does the extra sentence at the beginning of the second paragraph really add anything? Given the split in authority among the appellate circuits prior to Hiibel, is it even correct to say, “it had historically been held ...”? JeffConrad 07:15, 20 September 2007 (UTC)

Look back at what I added compared to what it was before. The extra words were trying (perhaps less succesfully than I'd hoped) to show that, at this point, the only questions one must answer are those involving identity. (In other words, historically, the general presumption was that a detainee was free to not answer questions, though there was a circuit split on whether there was a narrow exception for questions of identity. Now, with Hiibel, there is a clarified exception for questions of identity where a state law is on the books, though the rest of the silence rule is presumably still valid.) If you don't like how I worded it, try to find a way to incorporate it. In particular, the "has" is correct, because, except in the specific case of responding to identity inquiries, a suspect is still not obliged to answer. Jkatzen 05:17, 21 September 2007 (UTC)
I think I now better understand your intent. What was confusing (and still would be if present perfect were restored) was the tense shift between the first and second sentences. Inclusion of “historically” added to the confusion. Perhaps the answer is some careful rework for better flow from the first sentence to the second. After rereading both sentences several times, I don't have an obvious solution; I'll give it a look tomorrow.
I still wonder if "has been" is correct; I have assumed that White's concurring opinion (and its citation in Berkemer v. McCarty) was taken as a blanket right to avoid answering any questions, and that no longer is true (at least in Nevada and quite possibly in other states with “stop-and-identify” laws). I also question “held” when citing dicta, even the “strong dicta” to which Breyer referred in his dissent.
I think we should be very careful in conclusions we draw from Hiibel; a careful read suggests that it's much narrower than many seem to claim. Despite strong hints, neither the Nevada Supreme Court nor the U.S. Supreme Court unequivocally stated that a detainee must give only his name. Recall that, although Hiibel was repeatedly asked for identification, which he supposedly need not provide, he never actually was asked simply to “identify himself”. Note also that the Court upheld the conviction largely because Hiibel refused to provide ID simply because he felt he didn't need to; they left open the possibility of withholding one's name if there were a genuine concern that it could be incriminating. More comprehensive “stop-and-identify” laws, such as Colorado's, which requires a detainee to provide ID if available, remain untested. JeffConrad 09:42, 21 September 2007 (UTC)
The intent of the added sentence seems to be to emphasize that, at least in some circumstances, long-standing precedent has been partially overturned. However, I honestly can't see that the additional sentence does anything other than incorporate the note into the text; isn't the purpose of a note to avoid cluttering the text? JeffConrad 01:17, 22 September 2007 (UTC)
I've made another attempt to clarify the second paragraph. I simply cannot find a reasonable way to integrate Justice White's concurring opinion in Terry (or its citation in Berkemer v. McCarty) into the text; again, though, I think the note covers it. In this context, emphasis is appropriate only to indicate a necessary stress on words that might not otherwise be obvious. I don't think that's a problem here, so I removed the emphasis. JeffConrad 00:39, 1 October 2007 (UTC)
I don't claim ownership of the article, and I hardly suggest that the way I had it could not have been improved. I do, however, think that changes should actually serve to improve the article. The “clarification” adds nothing that is not covered more comprehensively and more clearly in the note. I also have a problem with circumlocution such as “engage a suspect in conversation relating to his suspicions” as a substitute for “question a suspect”; see Garner's A Dictionary of Modern Legal Usage or or a similar work, or User:Tony1/How to satisfy Criterion 1a for some excellent guidance on creating a “well written” article. I also think the gratuitous use of emphasis detracts from rather than enhances an article; the emphasis added to the second sentence implies that the average reader is an idiot who will miss the meaning without the emphasis. Good writing uses italics very sparingly—see, for example, the “Chicago Manual of Style”, 15th ed, 7.49. JeffConrad 05:54, 1 October 2007 (UTC)
I find the clarification I added hardly circumlocution; if anything, it more properly characterizes the interaction as a conversation not an interrogation. What is covered in a note is largely overlooked by the average user. I think it's important in the crafting of the main body of the article to highlight some of the points otherwise buried in the note. And as for italics, I hardly think one or two instances of it here is overkill, and while I don't think the average user is an idiot (as I suppose you think any intended audience of an italicized phrase is wont to be), I think the average user is not a legal scholar. As a result, I think it's worthwhile to walk non-legal-scholars through the issues. Additionally, I've generally sat back while you've made modifications to this article whose basis I originally drafted. A few times I've disagreed with you and pointed it out, and every time, almost without exception, you've fought me on it. Ultimately, until now, I've let every one slide after minor protest, because I just don't care enough about an internet article to fight someone on it who's so sure his viewpoint is right that he'll editwar me. Jkatzen 20:15, 1 October 2007 (UTC)
I suggested only that one phrase was circumlocution—I just can't see using nine words when three will do (even if the wording was essentially lifted from Chief Justice Warren's majority opinion in Terry). I probably could even buy the longer phrase for a “contact”, but once a person is detained, there's little pretense of casual conversation—the detainee is being questioned. The right to not answer comes not from historical holdings but from the Fifth Amendment, which applies at all times and not just after a Miranda warning. This is arguably the issue most relevant to the non–legal scholar, because an amazing number of people end up telling a peace officer everything he needs to know before it's even necessary to give a Miranda warning. The only issue that Hiibel resolved was that, at least in Hiibel's situation, giving his name wasn't incriminating, and consequently was not protected by the Fifth Amendment.
I'd never suggest that my way is the only way, but I'll stick by my comments on wordiness and italics, and I think you would find that most style guides support my position. The emphasis added to the second sentence adds nothing to the readability; the stresses naturally fall where they should.
Your point on the average reader ignoring notes may be well taken; the function of a note is more to document than to inform. I'll also concede that the single-sentence paragraph that I had was an abrupt jump into whether a detainee was required to identify himself. My objection was not with the additional information but rather that the second sentence did not follow from the first (it still really doesn't). But I'm not going to argue about it, because a wiki article just isn't worth the grief. JeffConrad 23:11, 1 October 2007 (UTC)
What I think was intended was to the effect of
A peace officer may question a person detained in a Terry stop, but in general, the detainee is not required to answer. However, many states have laws that specifically require the detainee to identify himself upon request by the officer, and in some cases provide additional information. Prior to Hiibel, it was unresolved whether a detainee could be arrested and prosecuted for refusing to give his name.(note) The validity of requirements to provide additional information remains unresolved as of October 2007.
See what you think. JeffConrad 06:11, 2 October 2007 (UTC)
Sounds good to me . . . good balance. Jkatzen 20:42, 2 October 2007 (UTC)
But is it “fair and balanced”? ... After rereading the entire section, I see that replacing the second paragraph with what I suggested would create considerable redundancy. I'm looking for a better way to merge the information; I think the citation of Berkemer v. McCarty should remain, showing that long-standing precedent was discarded. JeffConrad 02:54, 3 October 2007 (UTC)
I've merged the material. Hopefully, I got everything; see what you think. The change to female gender for the peace officer was to help distinguish the detainer from the detainee rather than to address any sexist issue.
I also added a citation of Florida v. Royer to the Consensual section to support the claim that a person can walk away. JeffConrad 08:22, 3 October 2007 (UTC)

[edit] Gender-specific language

Where possible, this article uses gender-neutral language, as recommended by WP:MOS. Where this is not possible or would be awkward, there is alternation be between masculine and feminine. Although hardly a perfect solution, I and many other see it as a least of evils. I personally am from the old school in which the masculine sufficed in most cases, but this approach annoys many readers, so I avoid it. The current balance is reasonable and there is no need to keep converting feminine references to masculine; I ask editor 76.171.177.144 to stop doing it. JeffConrad 23:32, 30 September 2007 (UTC)

I went through the article and changed "him/his/himself" and "her/she/herself" to gender neutral terms. I left anything that was in quotes. In nearly all cases it did not make the article seem awkwardly written. It's not perfect, but it seems much more gender neutral than before. 75.68.179.174 (talk) 05:54, 23 December 2007 (UTC)

What's awkward is in the eye of the beholder ... I hate to belittle someone's efforts, but pedantic insistence on gender neutrality doesn't improve the article. There is no perfect answer for lack of epicene pronouns in English; avoiding gender-specific language as much as possible, and alternating gender otherwise is arguably the most common approach in American English. Use of plural forms (e.g., them, their) is not without precedent in English writing, and even has Bryan Garner as somewhat of an advocate; however, this still is not generally considered acceptable in American English. Constructions such as “him or herself” are not even grammatically correct; “themself” and “theirself” are extreme neologisms that do not appear in either Webster's Ninth Collegiate Disctionary or Webster's Third New International Dictionary. I don't think an encyclopedia article is a place for language advocacy. JeffConrad (talk) 22:01, 23 December 2007 (UTC)