When is Identification Mandatory?
...by Eric Kirk
Over the past few months I had the pleasure to represent former board member and periodic CLMP volunteer, Ben Wesner, as he faced the charge of a violation of Penal Code section 148(a), specifically, delaying an officer in the course of his duties.
During the early morning hours of December 5, 1998, Ben was returning to his home near Laytonville from a concert in Willits. He had carpooled to the concert, one of the vehicles being left in a parking lot in Laytonville.
According to the police report, Mendocino County Sheriff's deputies had watched them pull into the parking lot and because the businesses were long closed, they decided to investigate. They immediately pulled up behind Ben's vehicle, blocking any possibility of exit, and began to interrogate him. He tried to explain the situation, but they continued to treat him as a suspect in a crime, asking for identification. One would think that his presentation of the key to the second car should have dispelled any suspicion of a planned crime. He actually did identify himself verbally at one point, but his name did not show up on their background check.
Ben felt very uncomfortable with their behavior and stated that he was asserting his rights to silence and would neither speak to them nor provide identification willingly. They then informed him that he was under arrest, at which point he attempted to offer to cooperate, but was informed that it was "too late." Ben spent most of the next day in jail until he was released early the next evening. He was later charged with a misdemeanor, an overblown charge under any interpretation of the events.
When Ben first contacted me, I was sure that the District Attorney's office under outgoing D.A. Susan Massini would not press charges. Unfortunately, they pressed the charge. The first discussion with them produced an offer for "time served," but a plea on the charge. The District Attorney was adamant that Ben was compelled under the law to produce identification at the request of an officer. They cited two cases, both of which I felt they clearly misread.
The first was the case of Berkemer v. McCarty (1984) 468 U.S. 420, which does allow the officer to investigate a situation under certain circumstances, and even to arrest someone to obtain the person's identification if he or she refuses to produce it. But it does not make it a crime for the individual to fail to provide the identification. The District Attorney's office was clearly confusing a right of course of action for the police with a legal compulsion to cooperate on the part of the individual. In fact, the wording of Berkemer itself dispels this assumption: "The officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond."
And in fact, in my motion to dismiss, I cited further case law that stated that the right to silence is protected not only by the Fifth Amendment, but also by the First Amendment. (See People v. Quiroga (1993) 16 C.A. 4th 961, 969, footnote 2.)
The second case they cited reads as follows: "The Legislature has required citizen self-identification in prescribed situations. Vehicle Code section 40302 calls for the production of a driver's license or identification upon arrest for a violation of that code; Vehicle Code section 12951 requires production of a driver's license by the driver of a motor vehicle upon the request of an officer. Penal Code section 647, subdivision (e) imposes a duty to identify oneself when such person loiters or wanders upon the streets or from place to place without apparent reason or business, and the surrounding circumstances reasonably indicate that the public safety demands identification." (In re Gregory S. (1980) 112 C.A. 3d 764, 779.)
The first time I read this wording, I was concerned about Vehicle Code section 12951, because Ben was in fact driving. However, the statute itself reads specifically that identification must be produced by a driver when the officer is "enforcing this Code," which must mean the Vehicle Code. Not all laws are well written, unfortunately, and this seems redundant with section 40302. However, every word in a statute must be presumed to have legal meaning and it is reasonable to assume that section 12951 will only kick in where there is evidence or reasonable suspicion of a Vehicle Code violation.
And although Penal Code section 647(e) mysteriously remains on the books unaltered after 16 years, it was in effect struck down as unconstitutionally vague in the case of Kolender v. Lawson (1983) 461 U.S. 352 at page 358. And in any case, Ben had not the chance to "wander" by any definition, and loitering requires specific proof of a state of mind involving a planned crime at a later time. Basically, just standing around is not a crime, and cannot be, constitutionally. The legislature has attempted to make anti-vagrancy laws vague enough to give officers carte blanche, but the courts have repeatedly demanded that the laws effectively define a crime that can be recognized under the Constitution.
Two down. And since Ben violated no traffic laws, he was not legally compelled to identify himself.
I submitted a motion to dismiss, resulting in an offer for Ben to simply write a letter of apology and admit that he was legally required to produce identification at the request of an officer in "like circumstances" (we never got to the point of describing the meaning of that phrase), and agree to comply in the future. Ben turned down this offer on principle, even with the possibility of a misdemeanor conviction hanging over his head.
Finally, on the day scheduled for hearing the motion, it was assigned to a reasonable deputy District Attorney, and he moved to dismiss the case in the interests of justice, moments before the motion was to be heard.
After extensive research, I have found no example (with the exception of probation or other special circumstances) where one is required by law to produce identification to an officer except when he is enforcing the Vehicle Code. This should not be taken as advice to refuse in all other circumstances. While it is not a crime to refuse to identify yourself, the officers may have the right to take measures that make your life difficult or uncomfortable in order to ascertain your identity. Again, this depends on the circumstances.
And it must also be noted that the position Ben and I took, no matter how clear the law seems, may not be shared by the police and prosecuting attorney you face. Likewise, there is no guarantee that a particular judge will see it your way. As the saying goes, "A judge is but a lawyer who knows a governor." As always, it is advisable to choose your stands with care.
|
|
