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Thread: Is it mandatory to identify oneself during a Terry stop?

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    I have read online that the US Supreme Court ruled that Stop and Identify laws are constitutional, i.e., if a state makes a law that citizens must identify themselves to police (such as during a Terry Stop), then they may be arrested and charged for breaking that law. There are pages online listing "Stop and Identify" states, such as the Wikipedia article [1] on the topic.

    Can someone confirm Washington's status? Am I under any obligation under Washington law to identify myself to an officer if I have been detained, such as in a Terry Stop?

    Are police under any burden to arrest you immediately if they do have probable cause? Example:

    Imagine walking down the street peacefully OCing and a policeman confronts you and begins asking questions, "What's your name? Do you have a permit for that?". Imagine that the citizen refuses to speak or doesn't answer the questions. Perhaps he stands silently for a moment observing the officer, or perhaps he counters with statements like "No permit is required for unconcealed firearms, officer."

    Say that the citizen goes to leave and is then arrested by the police officer. Courts value expediency, so it is imaginable that the court might be suspicious of the officer's story as to why he chose to arrest then instead of earlier, since he gained no new information to support probable cause. I imagine that perhaps it could be evidence on the defense's side, the fact that the officer does not arrest immediately. What I am wondering is: is this actually the case? Does it strengthen your defense if police do not immediately arrest or detain you?

    I could imagine suddenly being arrested for no reason -- the police might say that you were acting threateningly with the weapon or brandishing it; true or not, a court might accept that as a reasonable. Especially in the case of firearms it seems very, very unlikely that police would be on scene watching someone brandish a weapon without initiating immediate takedown and arrest. Thus if the cop walks up and starts talking to you, it seems unreasonable for him to say later on that he already had probable cause to arrest you -- that you were brandishing the weapon or some such. He might say that you started doing so after your interaction, when you made to leave, but that would be serious invention of evidence.

    What protections does a citizen have who wishes not to identify himself during a Terry stop (on foot)? In today's world it seems likely that refusal to identify one's self would precipitate an arrest, even if no probable cause supports it. What do other members think is likely to happen, and what is the best defense against it?

    As a citizen of the US and Washington, it's useful to know what my rights are in such situations. Just as I have a right to carry a handgun, I (may) also have the right not to identify myself during a Terry Stop, which we all know is a brief stop for officer protection, so surely they don't need my name. As is the case with any and all rights, it's hard to know if you have the right without exercising it. Accordingly, one might consider choosing not to identify or provide any information, or even speak, to an officer during such a Terry Stop. One should probably do this expecting to be arrested -- so I am asking what one should consider in defense of any such charges.

    I would like to consider the information regarding this issue so as to make an informed decision about whether to exercise such rights. Thanks for your time.


    [1] http://en.wikipedia.org/wiki/Stop_and_Identify_statutes

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    Regular Member j2l3's Avatar
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    In your scenario it would not qualify as a legitimate Terry STop and therefore not be required to answer questions. It would be an illegal stop.

    The officer must be able to articulate reasonable suspicion that you have or are about to committ a crime.


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    Pages two and three should address your concerns.

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    Your cop is in deep do. He has violated several laws and is gonna get himself and his department sued big time and may also be guilty of violating a Federal law or two.

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    I don't have the info in front of me, but I read in a CJ book that a coupel state (Texas and California, I think) had stop and identify laws, and they were both thrown out by US Supreme because they encouraged arbitrary enforcement, and violated Terry v Ohio.

    As soon as the cop stops you, you can say "am I free to leave," and if he says no, he has to point to "articulable facts" that would lead a reasonable person to conclude criminal activity is afoot. If you are not free to go, you are under "investigative detention," and they need to be able to point out things that make them think you're somewhere in the process of committing crime. If still no, it's plain illegal.

    But if it's an actual investigative detention, then yes, you do have to identify yourself Don't know if it's a law, but they can claim that gives them further "reasonable suspicion," and could use it to formulate some probable cause too. I think the Terry case said they can ask identity in a Terry stop. Don't quote me though.

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    A very similar incident took place in NH; and was caught on video!
    http://www.opencarry.org/OCDO-NH.html
    Just click on the first video and of the State Trooper. The video is labled Open Carry Legality.

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    What if it were a legal Terry stop? Perhaps a person calls 911 and (falsely) claims a man with a gun is threatening people and gives a description of the man who is carrying, etc., sufficient info to warrant a Terry stop.

    Let's say there is evidence for reasonable suspicion but not probable cause. Required identification then?

    Thanks for the advice guys!

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    xiphoris wrote:
    What if it were a legal Terry stop? Perhaps a person calls 911 and (falsely) claims a man with a gun is threatening people and gives a description of the man who is carrying, etc., sufficient info to warrant a Terry stop.

    Let's say there is evidence for reasonable suspicion but not probable cause. Required identification then?

    Thanks for the advice guys!
    A 911 call is not really proof of a crime. If the cop doesn't see what was reported he really has no probably cause. Most 911 calls are BS to start with.

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    Americans cannot be required to carry and produce identification credentials on demand to the police. Kolender v. Lawson, 461 U.S. 352 (1983). Washington does not have a "stop and ID" statute. However, even where a state enacts a "stop and ID" statute, stop must be limited to situations where RAS exists of a crime, and further, stopped subject's statement of his name satisfies the ID requirement as Kolender has not been over ruled. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004).

    Law enforcement officers seizing persons for refusal to show identification are "not entitled to dismissal of [42 USC 1983 claims] based on qualified immunity." Stufflebeam v. Harris, 521 F.3rd 884, 889 (8th Cir. 2008)

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    I looked up some laws from my (old, the late 80's) CJ book, and as it turns out, at least up until then, you don't actually have to identify yourself in a Terry Stop, only when they have probable cause to arrest you do you need to show ID.


    Brown v. Texas 433 U.S. 47 (1979)

    Kolender v. Lawson, 103 S. Ct. 1855 (1983)

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    I would like to chip in a little tactical info. I've not carefully read the entire thread, so please disregard if I write something moot.



    I know of no law that requires a police officer to tell you his RAS. As far as I know, he only needs RAS; he doesn't need to give it or justify it to you. And when you boil it down. He only needs it for theevidence and/or case against you to not get thrown out later, or to avoid a lawsuit later. As far as I know, he does not need to give it to you to get your compliance.

    Also, police are allowed to lie to suspects. Its sometimes called permissible deception.I think it is folly ofa high order to rely on an officer's stated RASfor deciding a course of action during the detention itself, if he decides to answeryour question at all. As far as I know, its not whether he really has RAS, but whether a court willfind that hissuspicion was reasonable.

    You will have no idea whether a 911 caller made a false call, or exaggerated the report, or whether the officer just saw you and decided to stop you. Unless you ask. And even then, I wouldn't rely on any answergiven.

    I think there is evencase law that says in so many words its the court's role to determine whether circumstances added up to a reasonable reason to be suspicious.

    Also, realize there are probably numerous circumstances that to you or I would not seem suspicious. But in a police officer's experience might be. Its my understanding the standard used by the courts is whether the circumstances are suspiciousin light of theofficer's experience, not yours or mine.

    So, in short, I think you are playing with fire to refuse toidentify yourself unless you are absolutely certain that in the exact location of the detentionthere is no state stop-and-identify statute AND there is no localordinance. We've already come across acouple local stop-and-identify ordinances.

    For myself, I plan to respond to an ID demand with, "I will comply with your authoritative demand for ID. I do not consent, but I will comply."

    This has the advantage of not running afoul of an unknown state statute orlocal ordinance. AND it sets up the cop for a formal complaint since:

    1)the LEO can't possibly have authority to demand an ID (see Hiibel vs6th Judicial Districtof Nevada).

    2) I am definitely going to find outA) whether there is a statute or ordinance, and B) whether he had RAS when Isend a FOIA request. If he doesn't have both, I've got that much more material for the formal complaint,even if he only demanded I verbally identify myself.

    As to not letting the cop know my name, I've decided I don't really care. One, the Founders signed their names large to the Declaration of Independence. And, two, the LEO is definitely going to know who I am when the formal complaint or lawsuit lands.

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    It may also be of interest that an "anonymous tip" is not grounds for a search. Don't recall the court ruling at the moment.

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    cynicist wrote:
    It may also be of interest that an "anonymous tip" is not grounds for a search. Don't recall the court ruling at the moment.
    Then, to avoid violating the forum rules, one would not phrase it as a statement of law. From the forum rules:

    7) if you state a rule of law, it is incumbant upon you to try to cite, as best you can, to authority. Citing to authority, using links when avaiable,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc. (emphasis in original)

    Better to find another phrasing that brings it up for discussion or research, but doesn't make a statement that the law is such-and-such.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    It may also be of interest that an "anonymous tip" is not grounds for a search. Don't recall the court ruling at the moment.
    It actually can be, depending on the circumstances.

    The case you are probably thinking of is Florida v. J.L., where the court ruled that an anonymous tip claiming a man has a gun is not enough to justify a search. There needs to be specific information warranting a belief that a crime has or is about to occur.

    When determining this, the court will consider the "totality of the circumstances". Factors include: the reason the tipster wishes to remain anonymous (fears reprisal?); accuracy of the information reported; specificity of the information (does it describe a specific person?); likelihood that a crime is about to be committed; whether the information can be independently verified by police (this is a big one).

    Anonymous tips can result in lawful searches. For example, in Alabama v. White police "received an anonymous tip that a woman would be leaving a particular apartment at a particular time in a particular vehicle. The tip also included information that the woman would drive to a named motel and would have cocaine in a brown attache case.

    The Court held that the anonymous tip, standing alone, did not justify White's detention. However, once police corroborated the informant's accurate prediction of the woman's future movements, it became reasonable for police to think that the tipster had inside knowledge about the suspect and bolstered his assertion about the cocaine possession. Although the Court held that the detention was reasonable in White, the detention was regarded as borderline in regard to establishing the necessary reasonable suspicion to stop and detain." [1]

    In summary: Anonymous phone calls cannot legally result in the detainment or search of a lawful OCer, because they do not meet the Constitutional requirement of probable cause, for among other reasons that there is no reasonable belief of a crime. However, in cases where an anonymous informant's information proves to be reliable, predictive, and is independently verified by police, it may lawfully justify probable cause.


    I would be interested to know how non-anonymous phone calls factor into the process. I have not done as much research on that matter, but I would still hope that without a specific claim that a crime is going to be committed, you cannot be stopped. In Washington, however, there is legal precedent for charging someone: see State v. Workman (1978). He was charged and convicted under the "causing alarm" clause because (as claimed by multiple witnesses) he was holding his AK-47 and walking in an "assaultive way", even though there was no specific evidence of a crime, and he was actually just walking his dog.

    Based on the court finding in that case, I do not think a court would uphold a conviction of a person with a holstered firearm. However, you might still get convicted if enough witnesses claimed you acted aggressive or "assaultive".



    [1] Anonymous Tips and Frisks - legal cases by Michael J. Bulzomi
    The FBI Law Enforcement Bulletin
    http://findarticles.com/p/articles/m...g=artBody;col1


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    Citizen wrote:
    cynicist wrote:
    It may also be of interest that an "anonymous tip" is not grounds for a search. Don't recall the court ruling at the moment.
    Then, to avoid violating the forum rules, one would not phrase it as a statement of law. From the forum rules:

    7) if you state a rule of law, it is incumbant upon you to try to cite, as best you can, to authority. Citing to authority, using links when avaiable,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc. (emphasis in original)

    Better to find another phrasing that brings it up for discussion or research, but doesn't make a statement that the law is such-and-such.

    Allow me to help. It was Florida v. J. L.

    "The United States Supreme Court held in a unanimous opinion by Justice Ruth Bader Ginsburg that the search was unreasonable. That the tip accurately identified the defendant and that the allegation of the firearm ultimately proved to be accurate was insufficient to justify the seizure. For a completely anonymous tip to justify even a "stop and frisk" of a suspect pursuant to Terry v. Ohio, 392 U.S. 1 (1968), it must be "suitably corroborated" with both the accurate prediction of future activity of the subject[1][/suP] and accurate in its assertion of potential criminal activity. The tip given in the J.L. case was only sufficient to identify the subject and nothing more, making the police reliance upon it unjustified.

    Please note that it was a unanimous opinion and none other than Ruth Bader Ginsburg wrote the opinion. Will wonders never cease.




    In Cynicyst's drfense, he did use the statement "Don't recall the court ruling at the moment." as a qualifier to his opening claim. At least he said he wasn't surerather than just dumping it off as an unsubstantiated fact.
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    amlevin wrote:
    Citizen wrote:
    cynicist wrote:
    It may also be of interest that an "anonymous tip" is not grounds for a search. Don't recall the court ruling at the moment.
    SNIP Then, to avoid violating the forum rules, one would not phrase it as a statement of law.
    SNIP Allow me to help. It was Florida v. J. L.
    Careful there.

    There is a difference between searches and stop-and-frisks. All stop-and-frisks are searches. Not all searches are stop-and-frisks.

    Florida vs JL cites earlier cases with regard to indicators (indicia) or reliability. White and Adams. Xiphoris was directing us to at least one of the actual authorities,I think.

    FL vs JL at Cornell: http://www.law.cornell.edu/supct/htm...9_0266_ZO.html
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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