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March 22, 2004

Dudley Hiibel Is His Name

Now you know. Now that you do, you should try to remember it because his case being heard by the Supreme Court is either going to result in smarter cops or not. Right now, this officer seems quite incapable of any verbal judo whatsoever. To me it looks like a case of another officer making everybody look bad (and piling on procedural requirements) because he didn't have sense enough to work through the law with the man standing in front of him. As familiar as I am with curbside behavior, I know this kind of malarky is not likely to go down in Los Angeles, but I'm not surprised to see it in Podunk.

Papersplease.org has some great material, and if you're a civil libertarian as I am, you'll probably be back:

Is Refusal to Show ID 'Probable Cause'?
This is the crux of the issue before the Supreme Court. Dudley Hiibel believes it isn't because of that pesky old Bill of Rights. Let's review a couple of those rights, shall we?

The Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In other words, Dudley Hiibel was unreasonably searched and seized because he refused to show his ID. The argument that not showing ID makes for 'Probable Cause' is not only laughable, but clearly un-Constitutional. In addition, the mandatory showing of ID is nothing less than compulsory self-incrimination, which also flies in the face of the Bill of Rights.

Notice this justificication in the Nevada Supreme Court Decision against Hiibel:

Most importantly, we are at war against enemies who operate with concealed identities and the dangers we face as a nation are unparalleled. Terrorism is "changing the way we live and the way we act and the way we think."[24] During the recent past, this country suffered the tragic deaths of more than 3,000 unsuspecting men, women, and children at the hands of terrorists; seventeen innocent people in six different states were randomly gunned down by snipers; and our citizens have suffered illness and death from exposure to mail contaminated with Anthrax. We have also seen high school students transport guns to school and randomly gun down their fellow classmates and teachers. It cannot be stressed enough: "This is a different kind of war that requires a different type of approach and a different type of mentality."[25] To deny officers the ability to request identification from suspicious persons creates a situation where an officer could approach a wanted terrorist or sniper but be unable to identify him or her if the person's behavior does not rise to the level of probable cause necessary for an arrest.

There is nothing whatsoever in this case that gives any indication that this traffic stop, (and it was less than a traffic stop, in that the vehicle was already parked) had anything to do with terrorist activity.

I have been in a situation in which a rookie cop cuffed me because he was afraid of me. I was a black man driving a big expensive car in downtown LA late at night with the system booming. That means something. I can tell when a cop is afraid of me or not. It may be within procedure to cuff someone if you're afraid. Even so, it is not reasonable for a cop to be as evasive as this one was in speaking directly about reasonable suspicion, probable cause and what is or is not an arrestable offense. Around here, one of the first things out of a cop's mouth is what he's stopping you about. He might play a guessing game to see what you're going to say, but in my vast experiences with roadside manners, they get to the point pretty quickly. Not doing so is disrepectful of citizenship and subversive of people's trust in police.

In the gap between detention and arrest everyone needs to know the law, but it is incumbent on the officer to teach the citizen or suspect something about what's going on, so long as there is time and no imminent danger. The officer always has the advantage with respect to the law so the greater burden remains with the officer. Either they are soliciting cooperation or they are forcing their will, a failure in the first case should not automatically lead to the second. This is why this is a case of poor policing, in my judgement.

Posted by mbowen at March 22, 2004 10:04 AM

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Posted by: CB at March 31, 2004 10:04 AM