Failure to ID after being Stopped for No Violation in Texas

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I saw this in November or December but did not have time to write on it at the time.  It appears to involve an individual named Collin Rector of Springtown, Texas.*  Springtown is on the border of Wise and Parker counties, just to the west and north of Fort Worth, on Texas 199 (the Jacksboro Highway of John Mayall & the Bluesbreakers fame).  Anyway, Collin and his two buddies got pulled over by an officer of the Weatherford Police Department for “driving slow” and the front seat passenger asks if that’s a violation.

The officer answers (at about 0:48) that it is not a violation, unless it is impeding traffic, which the officer then states that they were not doing.  Uh, officer, don’t you have to have reasonable suspicion to stop someone and detain them?†  So when the passenger starts to ask the question about this, the officer twists off and says that it is against the law to refuse to identify yourself to a police officer (at 0:58).  Uh, no, it’s not against the law if they are not under arrest.  Tex. Penal Code § 38.02.  At 2:01, the officer threatens to take the two to jail for Fail to ID, at which point the driver shows his driver’s license.  The passenger refuses to identify himself, as is his right, and the idiot officer pulls him out of the car.

Then a female officer gets Rector’s name, and runs him for warrants, and officer idiot searches and obtains the front passenger’s identification.  The passenger continues to quiz the officer for the grounds that he is required to identify, and the officer continues to basically say because the law says so.  Then the officer tells the lad to go back and study what the law says because the officer is sure that the kid is wrong and he is right.  Nice, except for the fact that is not what the law says, and the passenger was stating it correctly.

Of course, it doesn’t help that Rector and the driver pulled the three forms of ID bullshit.  That’s sovereign citizen BS, and is not correct.  Most departments do have a requirement that officers identify themselves, but that’s policy, not law.

Weatherford PD is not accredited by CALEA.  You can contact their Chief, Mike Manning, at police@weatherfordtx.gov or at 817-598-4310 or Captain David Smith, at dsmith@weatherfordtx.gov or 817-598-4322.

*That is based on the fact that the YouTube account belongs to Collin Rector and the fact that the back seat passenger identifies himself by that name.

†You should note that an officer does not have to articulate his reasonable suspicion to the people he stopped (although that is normally best), and that driving slow is often an indicator of driving while intoxicated.  Even so, that would not allow the officer to demand ID from the passengers.

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Failure to Identify while being Detained in Texas (from comments conversation)

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This was generated due to the conversation in the comments on the previous post.

OK, first let’s address Terry v. Ohio, 392 U.S. 1 (1968). That decision focuses on the authority of an officer to detain someone who the officer has a reasonable, articulable suspicion may be involved in criminal activity. It is silent as to the authority to identify who the person is. It certainly does not state that an officer is justified in “requiring a suspect to disclose his or her name” as Sam asserts.

Here, there is no question that the officers had grounds to detain Espinosa. The standard of proof required is reasonable suspicion, and they met that standard. That standard remains below the standard of probable cause, which is required for an arrest.

Next, Sam is correct on the basic issue of Hiibel v. Sixth Judicial Dist. Ct. of Nevada, 542 U.S. 177 (2004). Sam said that Hiibel “held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment if the statute first required reasonable and articulable suspicion of criminal involvement.” (emphasis added). That’s correct, but Sam is missing one key factor. Hiibel requires that the state have a statute authorizing the officer to require identification. Nevada has such a statute, Texas does not.

These statutes are called “Stop and Identify” statutes. In Nevada, the law states that “Any person so detained shall identify himself or herself. . . .” Nev. Rev. Stat. Ann. § 171.123. Texas has no such law, and contrary to Sam’s assertions, the case law in Texas is not “all over the map,” but are remarkably consistent, and uniformly against his position.

“When section 38.02 was enacted with the recodification of the Penal Code in 1973, it originally criminalized providing a false identity and failing to identify oneself to a police officer when the person had been ‘lawfully stopped.’ The legislature narrowed the statute in 1987 to apply only in situations when the person had been ‘lawfully arrested.’ In 1991 the legislature struck a middle ground—it criminalized failing to identify oneself when lawfully arrested but also criminalized giving a false name when lawfully detained or lawfully arrested. The statute was amended in 1993 and 2003, but the legislature did not alter the basic framework—it kept the distinction between “lawfully arrested” and ‘lawfully detained.’” Overshown v. State, 329 S.W.3d 201, 208 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (internal citations and footnotes omitted).

The law was changed based on a number of factors. First, in Brown v. Texas, 443 U.S. 47 (1979), the Supreme Court held that Texas could not just stop someone and require that they produce identification. This was followed by a ruling that “Individuals stopped by the police merely on the basis of suspicion, have a right not to be arrested, a right to remain silent, and, as a corollary, a right not to be arrested if they choose to remain silent.” Spring v. Caldwell, 516 F. Supp. 1223, 1230 (S.D. Tex. 1981), rev’d on other grounds, 692 F.2d 994 (5th Cir. 1982).

So far the State of Texas has declined to expand the authority of police to arrest someone who choses to remain silent when asked for identification while detained.

Another case also spells it out clearly. “When appellant refused to give [the officer] his name, he was not under arrest. Therefore, subsection (a) does not apply . . . Under these facts, appellant did not commit the offense of failing to identify himself. Further, the officers provided no evidence at the suppression hearing to justify a warrantless arrest, such as a showing that appellant was about to escape. Thus, the trial court properly determined that appellant was illegally arrested.” Crutsinger v. State, 206 S.W.3d 607, 610 (Tex. Crim. App. 2006). Note that in this case, Crutsinger was suspected of capital murder, so Sam’s argument about the severity of the offense just flew out the window.

Sam then claims that “obstructing is called interfering with the duties of a public servant.” It’s a novel approach and creative, but in accurate. Thus far there has not been a single appellate case where this has been brought up, probably because § 38.15, Interference with Public Duties, Tex. Pen. Code Ann. provides that speech only is not an offense and this would prohibit a successful prosecution. See Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007); Carney v. State, 31 S.W.3d 392 (Tex. App.—Austin 2000, no pet.).

He may also want to look at Adams v. Praytor, No. Civ.A. 303CV0002N, 2004 U.S. Dist. LEXIS 12383, 2004 WL 1490021 (N.D. Tex. July 1, 2004). In that case, one of the officers demanded identification of Adams, who refused to provide it since he was not under arrest. The officers then, according to Adams and several witnesses, threw Adams to the ground, breaking his nose and causing other injuries. The officers attempted to charge Adams with Failure to Identify, but were told by their lieutenant that the facts did not meet the elements of the offense, that Adams did not have to identify himself unless he was under arrest. They then tried charging Adams with Interference with Public Duties, for which he was found not guilty. Opps. In the subsequent lawsuit, the officers were denied qualified immunity by the court, stating:

“Defendants correctly concede that no probable cause existed to place Adams under arrest for Failure to Identify. The Texas Penal Code requires only a person who has been lawfully arrested to provide his name, address, or date of birth to a police officer who requests identification. Indeed, at the time of Adams’s arrest, the Supreme Court had held the application of Penal Code § 38.02 unconstitutional in the absence of reasonable suspicion to believe that the defendant was engaged in or had engaged in criminal conduct. Officers Wright confirms that he initially advised Adams that he was not under arrest, and conditioned the subsequent arrest on Adams’s refusal to produce identification. Accordingly, Defendants had no probable cause to arrest Adams for Failure to Identify.” Adams v. Praytor, 2004 U.S. Dist. LEXIS 12383, 16-17, 2004 WL 1490021 (N.D. Tex. July 1, 2004) (internal citations omitted).

This is clear, black letter law. It doesn’t matter what gyrations are thrown in, it doesn’t change the facts, nor will it change the outcome. Both the city and the county, if they’re smart, will settle with Ms. Espinosa. It’ll be cheaper than a trial. Especially when her attorney points out that by forcing her to destroy a portion of the video, there was arguably grounds to charge the officers with Tampering with or Fabricating Physical Evidence, § 37.09, Tex. Pen. Code Ann., a third degree felony. I would almost bet that Shurka thought of this, although I doubt that Simpson did (but I could be wrong). I don’t remember if Simpson was still a Deputy Chief in Dallas when their officers pointed a dash cam away so it would not film the officers beating an evading suspect.

 

Another Whackjob Sovereign Citizen goes to Court, and Loses

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Big surprise, right?

What I also get a kick out of is how the other whackjobs will try and spin the loss.

Ernie Tertelgte apparently believes that he is a mountain man and espouses views typically held by the so-called sovereign citizens.

The first time we hear of Ernie is in 1974, where he shot and killed a bear with his .30-30.  See Annabelle Phillips, The Tale of a Bear and a Lad of 12, THE HIGH COUNTRY, July 3, 1974, at 1.  Well back then he had a hunting license for that bear.

This year he was arrested after a game warden caught him fishing without a license.  But he believes that he’s sovereign and that the officer had no authority over him, so he refused to provide his name and was subsequently arrested for interference (Montana‘s charge for failing to identify) and resisting arrest (big surprise there, too).

So he shows up outside of the court wearing a tri-corner hat (‘cus he’s a patriot), wearing a Hudson Bay Co. capote coat (‘cus he’s a mountain man), and holding a hand-lettered cardboard sign (‘cus he’s a whackjob).

The big basis of his defense appears to be that his name is spelled in all capital letters.  If you claim your name in all capital letters, then of course you are confessing to a capital offense.  Somehow that is connected to 1889 (probably due to Montana gaining statehood then).  If you use the all capital name, you have plagiarized and the Vatican can remove your head from your body, as if you were under Sharia law.  I got bored at the part where he started to talk about lawyers conducting witchcraft and exorcisms, but feel free to listen to it all.

Once inside, Tertelgte, continued his BS, ah, I mean his sovereign citizen argument against the court.

Tertelgte also mentions a Judge Holly Brown and infers that she is a federal judge (she’s a state district court judge) and that he is not liable because he is not a “Federal” citizen.  Of course, this was an arraignment, the judge informed him of the charges and left.  That of course means that it’s part of a Vatican plot, but as “the Living Man” he may disregard state law and “forage” for his food.  So anyway, he leaves, thinking he’s won.

What?  I thought he won?  Oh wait – according to Tertelgte, the Montana prosecutor was administering British law (because attorneys sometimes list “Esq.” after their name).  Anyway, Tertelgte wouldn’t shut up, so the judge had him removed from the courtroom.

Amazingly, after his insightful legal argument, Tertelgte was found guilty by a jury.

Does the fact that he accepted a hunting license at age 12, with his name in all capital letters mean that his life was already forfeited to the Vatican under Sharia law?  Now that he’s been found guilty by a jury?

morons

People v. Aguilar, Second Amendment Protects the Carrying of Arms

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This came out last week, but I wanted to wait and think about it before I began to bloviate about it.

The Illinois Supreme Court, in People v. Aguilar, 2013 IL 112116, ___ N.E.2d ___ (Ill. Sept. 12, 2013), ruled that the former version of the Aggravated Unlawful Use of a Weapon (AUUW), 720 ILCS 5/24-1.6, violated the Second Amendment of the U.S. Constitution.

Alberto Aguilar, then 17 years old, was arrested in the Little Village neighborhood of Chicago for AUUW and for Unlawful Possession of a Weapon (UPW), 720 ILCS 5/24-3.1.  Aguilar was convicted in a bench trial and sentenced to two years of probation.  He appealed and the appellate court affirmed the conviction.  He then took the case to the Illinois Supreme Court.

As noted, the Court held that AUUW was unconstitutional at the time of the arrest, as it prohibited all carry of a firearm outside of the home.  This is not surprising, given that the U.S. Seventh Circuit had made the same ruling in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).  The Moore decision led to Illinois passing a concealed carry statute earlier this year, although it has not yet really taken effect yet (as no permits have been issued).  The Illinois Supreme Court noted that they were ruling on the former law, not the current law.  This means that the ruling will have a limited effect.

Of course, the gun rights people (at least those that are not lawyers) have put their own spin on this and I’m sure it won’t be long until some idiot decides that this means he can carry whenever and however he wants.

Some people will be getting their charges dropped, sure.  The AUUW statute barred all carry until it was amended July 9, 2013, so people who were charged before that date have a pretty clear-cut road to the charges being dismissed.  The problem arises with the skewed interpretation that some of the gun rights people are putting on this.  They believe that since the old AUUW law was unconstitutional, then it was void (technically correct) and any amendment to the law was pointless (totally incorrect).

When the AUUW law was amended, it cured the problems brought up by both the Seventh Circuit and the Illinois Supreme Court.  The AUUW law was unconstitutional because it had no provision for “bearing” arms outside of the home.  As of July 9th, it has that provision.  Ergo, it will be presumed to be a valid law again.

Someone is going to carry and become a new test case–and I wouldn’t want to be that guy, because he’ll lose.

 

Semi-Open Carry Arrest in Tennessee: What Happens When You Don’t Know the Law, Part II

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Well, Leonard Embody has given me further information for my blog.

His preliminary hearing was held recently.  A preliminary hearing is solely for a judge to make a determination if there was probable cause for the arrest.  That’s it.  A couple of other matters can be addressed, like a motion to suppress evidence or a motion to dismiss, but those are based on factors surrounding the stop and the arrest, not general law.

So Embody shows up, pro se and is representing himself, and makes a motion to suppress.  Of course, he has no clue about what he is doing, so when he is arguing his motion, he starts to offer testimony and the prosecutor objects.  Eventually the judge decides to hear the testimony of the officer, who states that as soon as he saw Embody, that he could see an AR-15 slung across his back.  As he got closer, he could tell that there was what appeared to be a silencer attached to the rifle, and the officer did not yet realize that the rifle was in a form-fitted kydex case.  At that point he had reasonable suspicion to stop based on Tennessee law, since the possession of a silencer is a felony.

That would pretty much do it for the motion to suppress and motion to dismiss.

Of course, Embody brings up all sorts of irrelevant issues during his cross of the officer, the prosecution objects, and the judge sustains the objections.  Embody then tries to introduce the ATF documents which would show that the silencer was legal, but has no idea how to lay the foundation nor how to authenticate the documents so he could get them admitted.  I was actually very impressed with the patience that the judge had with Embody.

So now the prosecution has a finding that there was probable cause for the arrest and it will go to a grand jury for indictment.  And if Embody does not get much better at the legal issues, he’s going to be convicted.  He really needs to hire an attorney.

And the best line from the video is from the judge, near the very end.  “I don’t think Mr. Embody is crazy, I think he’s stupid.”  I will defer to the judge’s wisdom and leave that determination to my readers.

Apparently Embody has a copy of the recording of the hearing and put it up on YouTube.  I’ve linked to it below.

 

Auburn, Ala. PD Officer Fired for Speaking Out Against Ticket Quotas

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This is the type of police officer that a department should want working for them – but instead he is fired for speaking out against quotas.

It is clear that police officers have First Amendment protected speech rights for speaking out on matters of public interest.  For a list of representative cases, see 109 A.L.R. Fed. 9 (Originally published in 1992).  Ticket quotas are clearly a matter of public interest, and “a quota becomes the starting point for the abuse of police discretion.”  Illya Lichtenberg, Police Discretion and Traffic Enforcement: A Government of Men?, 50 Clev. St. L. Rev. 425, 443 (2003).

While some states have an outright statutory prohibition on quotas, c.f. Tex. Transp. Code Ann. § 720.002 (Vernon) (prohibiting formal or informal ticket quotas and providing for removal from office for a violation), Alabama does not.  Nevertheless, it is a poor police practice for the reasons noted in the video.

Chief Tommy Dawson who allegedly set the quota, retired effective July 1, 2013.  He has been replaced by Assistant Chief (now Chief) Paul Register, who has the opportunity to make this right.  He may be contacted at pregister@auburnalabama.org or 334-501-3110.

Royal Oaks Police Harass Open Carrier

44 Comments

In Michigan, open carry is legal without a permit or a license.  Here, a young officer stops a citizen who is openly carrying.  The citizen immediately asks if he is being detained and the officer tells him he is not being detained, whereupon the citizen turns to walk away.  The officer clearly wasn’t expecting that and orders him to stop, telling him that he is being detained.  Thus far there has been nothing to indicate that the officer has any sort of reasonable suspicion of a crime to justify the stop.  See Terry v. Ohio, 392 U.S. 1, 22 (1968); People v. Jenkins, 691 N.W.2d 759, 764 (Mich. 2005); People v. Custer, 630 N.W.2d 870, 876 (Mich. 2001).

Note that in Michigan, the Michigan State Police have issued a legal update that clearly states that the open carry of a firearm is not a crime.  Michigan also does not have a stop and ID law, meaning that the officer cannot stop someone and demand identification without reasonable suspicion for a crime.

The officer asks for ID, stating that the citizen may have a “mental injunctive order” or something.  The citizen refuses to provide ID, as is his right.  See People v. Williams, 234 N.W.2d 541, 545 (Mich. 1975); People v. Rivers, 202 N.W.2d 498, 501 (Mich. 1972).  Further, if the officer does not have a reasonable suspicion that the citizen has a “mental injunctive order”, or something, that is not the default position, that the possession of the weapon is illegal.  United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (“Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.”).

The officer is obviously irritated by the refusal to provide ID, and wants to know what the citizen’s problem is, that he needs to see the citizen’s ID.  He then tries to get the citizen to turn off his own video, and the citizen wisely refuses, citing the First Amendment.  At that time (about 2:15 in the video), a second, more experienced officer shows up and tells the citizen that if he doesn’t want to give ID it is OK, he is free to go.

The younger officer looks like he got kicked in the teeth at that point.  He does, however, follow the citizen for the next 15 minutes.

From my perspective this is fairly clear cut.  The young officer was not prepared nor trained to handle this.  He had no idea what he could or could not legally do, and the fact that the citizen stood up for his rights surprised him.  He hesitated due to his confusion, which was actually a good thing.  Some officers are much more assertive in what they believe their authority is, and would have stepped off into a minefield by making an arrest or taking other illegal actions.

Officers are not used to be confronted in a calm and reasonable way where their authority is being questioned.  They don’t like it when it happens.  The young officer was also lucky that the more experienced officer showed up, because you could see that the younger one was losing his patience.

That is also the reason that the officer followed him for the next 15 minutes or so (the videos are available at the citizen’s Youtube channel).  Had the citizen jaywalked or spit on the sidewalk, the officer would have made contact under the guise of the minor violation.

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