Stop and identify?

[Doggboy]

After reading the thread on the Redlands PD interaction, and then the OCSD/LASD OC memos I have a question. While I know CA does not have a stop and identify clause, the OC memos clearly state (several times) that the temporary detainment for 12031 (e) gives the officer the right to DEMAND ID.

Does anyone have the PC for this? The Redlands PD seemed to agree that no ID was required to be shown, but the memos tell a very different story. I did a search, but I didn't find an answer, and I'm not providing ID i I don't have to. Thanks :thumbsup:

[Liberty1]

No stop and ID statute in the PC. The CVC has 40302a (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=40001-41000&file=40300-40313) however.

40302. Whenever any person is arrested for any violation of this
code, not declared to be a felony, the arrested person shall be taken
without unnecessary delay before a magistrate within the county in
which the offense charged is alleged to have been committed and who
has jurisdiction of the offense and is nearest or most accessible
with reference to the place where the arrest is made in any of the
following cases:
(a) When the person arrested fails to present his driver's license
or other satisfactory evidence of his identity for examination.
(b) When the person arrested refuses to give his written promise
to appear in court.
(c) When the person arrested demands an immediate appearance
before a magistrate.
(d) When the person arrested is charged with violating Section
23152.

[pullnshoot25]

After reading the thread on the Redlands PD interaction, and then the OCSD/LASD OC memos I have a question. While I know CA does not have a stop and identify clause, the OC memos clearly state (several times) that the temporary detainment for 12031 (e) gives the officer the right to DEMAND ID.

Does anyone have the PC for this? The Redlands PD seemed to agree that no ID was required to be shown, but the memos tell a very different story. I did a search, but I didn't find an answer, and I'm not providing ID i I don't have to. Thanks :thumbsup:

Those memos are wrong, as the 12031 check is not a Terry stop.

He can ask, beg, request, demand to see ID all day long and you still don't have to show him or tell him anything.

[natedogg1777]

Interesting. I was wondering this same thing after reading the Redlands PD story...somebody beat me to it!

[pullnshoot25]

Elsensei and I are going to be making OC training videos for the blog and it will address all of these issues. I wish that Legend_AB were down here, I would freaking love to have him appear in it because of his freaking stellar performance.

[hoffmang]

He can ask, beg, request, demand to see ID all day long and you still don't have to show him or tell him anything.

Case law is pretty clear that you have to at least give him oral identification (name, home address.) However, in CA there is no "must show ID" law as the one on the books was struck by SCOTUS.

-Gene

[Liberty1]

Case law is pretty clear that you have to at least give him oral identification (name, home address.) However, in CA there is no "must show ID" law as the one on the books was struck by SCOTUS.

-Gene

Just to clarify that the demand can be made during a lawful detention or after arrest (and not a mere "e" check)? And what is the penalty for non compliance, 148 PC - obstructing?

[hoffmang]

Just to clarify that the demand can be made during a lawful detention or after arrest (and not a mere "e" check)? And what is the penalty for non compliance, 148 PC - obstructing?

It has been a while since I looked, but you'll be hard pressed to avoid identifying yourself in a detention.

As you might imagine, I'm a bit tired. I'll try to look at this when I have some time later this week.

-Gene

[bohoki]

i find it is hard to believe that you are required to had over an id card if carrying id is not required by law

somehow that just seems dare i say it

unfair?

ive had a cop say "lets see some id" and like a conditioned sheep i handed over my dl

what if i didn't have it (this is impossible if you are driving) but walking down the street there is no requirement to carry id

seems to me that if they can run you in for not handing them a id card then they could run in everybody not carrying one

they never say identify yourself they always say "let me see some id"

i'd like to show them my underwear with my name on it but i don't know where that nightstick has been

[Liberty1]

As you might imagine, I'm a bit tired.
-Gene

You really need to stop all that boozing it up and partying all night long in those SF clubs and do some work for a change ;)

[Liberty1]

i find it is hard to believe that you are required to had over an id card if carrying id is not required by law

Maybe not a physical ID card unless there is a state "stop and ID" statute which complies with Hiibel, but as Gene indicated there may be some times one is compelled to state name and address. What cops really want however is name and DOB since with that I can find out a lot about anyone.

[hoffmang]

You really need to stop all that boozing it up and partying all night long in those SF clubs and do some work for a change ;)

Is it ok if I do both as long as I get my work done? :innocent:

-Gene

[twinfin]

Friends,

In this particular type of discussion, people often intermix important terms that have separate and distinct meaning. To “identify” oneself, means to state your name. To produce “identification” would be to show an identification document such as a driver’s license when operating a car. Don’t confuse or intermix these distinctions.

There is no law in California requiring you to carry an identification document except a drivers license while operating a motor vehicle. Though you have a right to remain silent if arrested, the Supreme Court has recently ruled that stating your true name does not jeopardize your right to not make any self-incriminating statements. By this ruling, you must state your name but you do not have to produce an identification document (except when driving a car).

[1859sharps]

honest question...

why are people so resistent to identifing them self to LEOs. Whats the thought/concern behind this?

[Liberty1]

Is it ok if I do both as long as I get my work done? :innocent:

-Gene

With what you and the CGF band of merry men accomplish, I hope you all are sloshed all the time.


:party: time all the time!

[eltee]

What about for a young looking person who is OC'ng, to verify that the person is of legal age to possess a handgun and ammunition? Could ID be required to establish DOB beyond a verbal?

[Liberty1]

honest question...

why are people so resistent to identifing them self to LEOs. Whats the thought/concern behind this?

At the heart of the matter is the relationship between state and free born citizen. The officer is not detaining you to help you. You did not summon him. I am looking at you for the purpose of finding justification to deny you your liberty. I know this IS my job as taught.

Many an "innocent" has cooperated to rue the decision later.

For example:

In the case of Theseus' open carrying, he was not engaged in any crime. He was forcibly detained beyond the 12031 "e" check. His ID was forcibly removed from his back pocket without warrant and it and his gun were run through CLETS. That was wrong legally. And now the police had his identity and address.

Now the officers were not aware of any crime at that time and Theseus was sent on his way with his gun. So that should have been the end of it. As it turns out, someone in that department discovered that Theseus was within the 1000' school zone. He was on private property but they either did not know that was NOT a violation of the school zone or didn't care.

Because they unlawfully discovered his personal information, he was later contacted by the DA's office and is now defending himself against a bogus charge filed by complaint.

If the police encounter had happened legally then they would not have known who he was or where he lived in order to drag him into court on bogus charges.

So moral of the story is don't, at least not voluntarily, give the state any more info then legally required. This is not a personal thing of not liking the officer detaining you or of not wanting to cooperate with the police. We all are on the same side of keeping the peace. This is a matter of toeing the line on behalf of liberty and protecting the innocent from unwarranted aggressive and often misguided state action.

That is why I stress: know the law, have a recording device, the brochures, and friendly witnesses when UOCing. But whether or not you are engaged in 2nd A. activism, any time you are contacted by the state's agents (the police) your very liberty and freedom may hinge on exercising your right to not speak and refuse searches. And with a recorder proving your version of events you are in the best possible position since in court there is your side, the state's side, and then there is Justice. Make sure you have more truth to show then me and you will likely get justice and get to keep your freedom.

[Liberty1]

Friends,

Though you have a right to remain silent if arrested, the Supreme Court has recently ruled that stating your true name does not jeopardize your right to not make any self-incriminating statements. By this ruling, you must state your name but you do not have to produce an identification document (except when driving a car).

Welcome Friend (back acha),

So in what circumstance must one identify and what is the penalty for not doing so in CA - just an arrest or a lawful detention for investigation which doesn't reveal PC to arrest?

If and when identifying (name not ID card) is required what would be the applicable statute if any for that refusal? PC 148 - obstructing - is all I can think of since we don't have a stop and ID statute.

you do not have to produce an identification document (except when driving a car).
Or when a pedestrian in violation of the VC (I taken plenty of nar-do-wells in for printing after crossing against the red hand and not having ID).

[Liberty1]

What about for a young looking person who is OC'ng, to verify that the person is of legal age to possess and handgun and ammunition? Could ID be required to establish DOB beyond a verbal?

Unless the officer can articulate that he actually knows you are not of legal age he would need evidence which you or someone else provided to make the detention legal in the first place(IMO). For a 13 year old this would be easy. For some of the 15-16 year olds I've, seen not so easy.

That said it tends to be some of our younger members here who have gotten hooked up for things like OLL and UOC and I'm sure their age had at least some influence on the officer's decisions to go ahead and let the courts sort it all out.

[Old Timer]

California penal code 647(e) was overturned by SCOTUS in 1983 (Kolender v. Larson, 461 U.S. 352) in review of a San Diego case.

PC 647 reads (in part) “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . . (e) who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.”

What is interesting is that while 647(e) was found to be unconstitutional in 1983 it was not repealed by our idiot state legislature until 2007/2008!

[Decoligny]

Friends,

In this particular type of discussion, people often intermix important terms that have separate and distinct meaning. To “identify” oneself, means to state your name. To produce “identification” would be to show an identification document such as a driver’s license when operating a car. Don’t confuse or intermix these distinctions.

There is no law in California requiring you to carry an identification document except a drivers license while operating a motor vehicle. Though you have a right to remain silent if arrested, the Supreme Court has recently ruled that stating your true name does not jeopardize your right to not make any self-incriminating statements. By this ruling, you must state your name but you do not have to produce an identification document (except when driving a car).

I think a little clarification is needed here. If you are being detained you must self Identify. For you to be legally detained, the officer must have Reasonable Articulable Suspiscion that a crime has been committed.

If a cop walks up and asks "What are you doing in this neighborhood, let me see some I.D." you don't even have to open your mouth.

My first question will always be "Am I being detained?"
If answered with a yes, then I ask, "For suspiscion of committing what crime?"

[Mulay El Raisuli]

i'd like to show them my underwear with my name on it but i don't know where that nightstick has been


Yeah, that's the thought that makes me keep my DL handy at all times.

The Raisuli

[1859sharps]

At the heart of the matter is the relationship between state and free born citizen. The officer is not detaining you to help you. You did not summon him. I am looking at you for the purpose of finding justification to deny you your liberty. I know this IS my job as taught.

Many an "innocent" has cooperated to rue the decision later.

For example:

In the case of Theseus' open carrying, he was not engaged in any crime. He was forcibly detained beyond the 12031 "e" check. His ID was forcibly removed from his back pocket without warrant and it and his gun were run through CLETS. That was wrong legally. And now the police had his identity and address.

Now the officers were not aware of any crime at that time and Theseus was sent on his way with his gun. So that should have been the end of it. As it turns out, someone in that department discovered that Theseus was within the 1000' school zone. He was on private property but they either did not know that was NOT a violation of the school zone or didn't care.

Because they unlawfully discovered his personal information, he was later contacted by the DA's office and is now defending himself against a bogus charge filed by complaint.

If the police encounter had happened legally then they would not have known who he was or where he lived in order to drag him into court on bogus charges.

So moral of the story is don't, at least not voluntarily, give the state any more info then legally required. This is not a personal thing of not liking the officer detaining you or of not wanting to cooperate with the police. We all are on the same side of keeping the peace. This is a matter of toeing the line on behalf of liberty and protecting the innocent from unwarranted aggressive and often misguided state action.

That is why I stress: know the law, have a recording device, the brochures, and friendly witnesses when UOCing. But whether or not you are engaged in 2nd A. activism, any time you are contacted by the state's agents (the police) your very liberty and freedom may hinge on exercising your right to not speak and refuse searches. And with a recorder proving your version of events you are in the best possible position since in court there is your side, the state's side, and then there is Justice. Make sure you have more truth to show then me and you will likely get justice and get to keep your freedom.

so if you remove the 2nd amendment/gun issues, in essences your position is a demanding of the State to respect the innocent until guilty concept. Am I understanding you correctly?

oh and thanks for the friendly answer.

[tyrist]

i find it is hard to believe that you are required to had over an id card if carrying id is not required by law

somehow that just seems dare i say it

unfair?

ive had a cop say "lets see some id" and like a conditioned sheep i handed over my dl

what if i didn't have it (this is impossible if you are driving) but walking down the street there is no requirement to carry id

seems to me that if they can run you in for not handing them a id card then they could run in everybody not carrying one

they never say identify yourself they always say "let me see some id"

i'd like to show them my underwear with my name on it but i don't know where that nightstick has been

Your not required to hand over Id unless you commit a crime..then if you don't you can be booked for the smallest infraction.

[homerm14]

Your not required to hand over Id unless you commit a crime..then if you don't you can be booked for the smallest infraction.

Exactly! A citation can not be issued with out ID.

[Liberty1]

What is interesting is that while 647(e) was found to be unconstitutional in 1983 it was not repealed by our idiot state legislature until 2007/2008!

It was actually used once by my dept in about '05 after some Sargent read it in the penal code and started talking it up at briefings (without knowing the SCOTUS ruling). Never did find out what happened to the arrestee. DA probably just never filed.

[Liberty1]

in essences your position is a demanding of the State to respect the innocent until guilty concept.


It comes down to a powers vs rights understanding. Your Right to be free from unreasonable searchers (of your name and gun's serial number) and seizures (of you person during a detention/arrest) absent the normal suspicion requirements of our legal system is the base relationship between a free people and the states power to deny you your freedom under the law.

When the dictates of the 4th A. do not influence the police or cause them to a least give it a thought during an interaction then we have tyranny.

Not cooperating with the state (the police) when you don't have to is merely standing up for your Rights and letting the state's agents know not to cross that line of request vs demand IF they don't have the power to demand.

I think in 12031e loaded inspections there is a disconnect on the part of the police who do not see the distinction between that limited interaction and a detention for a suspected crime which allows for you to be held during investigation and for incidental searches of data bases.

They will learn eventually, I assure you that. Whether it takes a kind word to point out the above distinctions or the legal Thors Hammer of the Calguns Foundation (for example as I don't speak for them) to make the lesson stick, is entirely up to those initiating the contacts.

[fairfaxjim]

It comes down to a powers vs rights understanding. Your Right to be free from unreasonable searchers (of your name and gun's serial number) and seizures (of you person during a detention/arrest) absent the normal suspicion requirements of our legal system is the base relationship between a free people and the states power to deny you your freedom under the law.

When the dictates of the 4th A. do not influence the police or cause them to a least give it a thought during an interaction then we have tyranny.

Not cooperating with the state (the police) when you don't have to is merely standing up for your Rights and letting the state's agents know not to cross that line of request vs demand IF they don't have the power to demand.

I think in 12031e loaded inspections there is a disconnect on the part of the police who do not see the distinction between that limited interaction and a detention for a suspected crime which allows for you to be held during investigation and for incidental searches of data bases.

They will learn eventually, I assure you that. Whether it takes a kind word to point out the above distinctions or the legal Thors Hammer of the Calguns Foundation (for example as I don't speak for them) to make the lesson stick, is entirely up to those initiating the contacts.

While a lot has actually been accomplished to stop LEO abuse during non-crime contacts over the years, the overuse of officer safety trumping ALL other concerns while on the street has become so prevalent that it justifies, in LE minds, a wide abuse of denial of freedoms. The state itself is very pro-active in using the fear of crime to keep the masses compliant to near total power by LE, as state has much to gain by a strong police force and a weak citizenry.

[Theseus]

I have actually considered refusing a 12031e check, but the problem there is that then they have PC to arrest you. . . This is the part that get my goat.

They, under authority, confiscate your arm to determine its loaded status. Refuse them this unwarranted search and now they have PC to arrest and subsequently search you.

It is almost like...entrapment. (I know it isn't ACTUALLY intrapment, but it is similar in my view.)

[MP301]

i find it is hard to believe that you are required to had over an id card if carrying id is not required by law

somehow that just seems dare i say it

unfair?

ive had a cop say "lets see some id" and like a conditioned sheep i handed over my dl

what if i didn't have it (this is impossible if you are driving) but walking down the street there is no requirement to carry id

seems to me that if they can run you in for not handing them a id card then they could run in everybody not carrying one

they never say identify yourself they always say "let me see some id"

i'd like to show them my underwear with my name on it but i don't know where that nightstick has been

Its not where its been that you should worry about! Its where it could end up! hahahaha

[artherd]

Just to clarify that the demand can be made during a lawful detention or after arrest (and not a mere "e" check)? And what is the penalty for non compliance, 148 PC - obstructing?

Pretty sure a 12031e detention would be grounds to seek at least oral ID (name & home address.)

There is no grounds, absent operating a motor vehicle, to require PHYSICAL ID of any sort.

[pnkssbtz]

so if you remove the 2nd amendment/gun issues, in essences your position is a demanding of the State to respect the innocent until guilty concept. Am I understanding you correctly?

oh and thanks for the friendly answer.I don't think you are quite fully comprehending the concept of what Liberty is.

Absent any 2nd Amendment connotation, the identifying of yourself whenever and wherever questioned by an authoritative figure is the antithesis of liberty. Doing so puts restraints on your person, your freedom to move, your freedom to choose your interaction, and your freedom of anonymity.

Your presumption of innocence is only the tip of the iceberg as far as restraint of liberty is effected.

[Old Timer]

It was actually used once by my dept in about '05 after some Sargent read it in the penal code and started talking it up at briefings (without knowing the SCOTUS ruling). Never did find out what happened to the arrestee. DA probably just never filed.I retired in '92 but we were still getting info at roll call (9 years later) not to use 647(e) under penalty of death, dismissal, or both! The Patrol Lt. didn't have much of a sense of humor. :)

[Mulay El Raisuli]

I recall reading about a case in FLA where a guy riding a bus (Greyhound or local, I don't know) with a seabag was asked by the cops to produce ID. The guy refused & was arrested. Since refusal to ID was the only charge, the guy's court appearance was fairly brief & he was released, still w/o giving his name. But, the cops insisted that he sign for his property before they would return it. Our Hero still didn't want to do that & went back to court. The court ordered the cops to release the guy's property to him because there was still no legal foundation to force him to ID himself. Our Hero took his seabag, hopped onto a bus & got out of town.

Its been a long while since I read abut this. It was way before 9/11, for instance. It may even have been over 20 years ago. And of course, it was a different state. Still, I recall that anonymity was ruled a Constitutional Right in this instance.

Anyway, has anyone else heard of this case? Perhaps if real details could be provided, something useful to us here in the PRK could be gleaned?

The Raisuli

[Electric Factory]

As philosphical arguments go I can understand the refusal to aquiece to authority [ refusal to fork over ID upon request/ demand of LEO, for instance] . But as a purely practical matter the headache[s] LEO can foist upon you at the the point of impact[ pulled over on the street] are really where the rubber meets the road.
I for one really don't want to be handcuffed, hauled into jail- or worse- only to be proven right somewhere down the [ legal system] road. That seaman that Mulay El Raisuli referenced had to go to jail, and then court. A couple of times. He committed no crime. He did nothing wrong. Yet there this poor guy is, in the slammer.
Am I wrong in thinking that on the street the cops have ALL the power ?
I hate myself for admitting it but I've 'yes sir'd' and forked over ID to LEO all my life, even in situations where LEO didn't deserve the respect, purely out of fear for what can happen to you before you ever see the inside of a courtroom.

[Decoligny]

As philosphical arguments go I can understand the refusal to aquiece to authority [ refusal to fork over ID upon request/ demand of LEO, for instance] . But as a purely practical matter the headache[s] LEO can foist upon you at the the point of impact[ pulled over on the street] are really where the rubber meets the road.
I for one really don't want to be handcuffed, hauled into jail- or worse- only to be proven right somewhere down the [ legal system] road. That seaman that Mulay El Raisuli referenced had to go to jail, and then court. A couple of times. He committed no crime. He did nothing wrong. Yet there this poor guy is, in the slammer.
Am I wrong in thinking that on the street the cops have ALL the power ?
I hate myself for admitting it but I've 'yes sir'd' and forked over ID to LEO all my life, even in situations where LEO didn't deserve the respect, purely out of fear for what can happen to you BEFORE you ever see a court or a judge.


That sir, is the best example of Tyranny that I have seen in a while. You are essentially in a constant state of fear and intimidation caused by the mere "possibility" that the State will abuse it's power.

[Electric Factory]

[QUOTE


That sir, is the best example of Tyranny that I have seen in a while. You are essentially in a constant state of fear and intimidation caused by the mere "possibility" that the State will abuse it's power.

Hmm, 'in a constant state of fear and intimidation', I don't know about that. But the tyranny if it exists isn't mine to arbitrate, because the power doesn't reside with me, at least at the point of contact as I specifically mentioned in my comment.

It isn't the 'possibility that the State will abuse it's power that concerns me. UNTIL you get to a courtroom the instrument of the State's power is that LEO who has you 'detained', pulled over, stopped.
UNTIL you get to a courtroom the power is his, hence the reason why i've to date forked over my ID. I'm not saying it's ok by me nor am I happy with the arrangement.
But at the point of contact ?

[Decoligny]

Hmm, 'in a constant state of fear and intimidation', I don't know about that. But the tyranny if it exists isn't mine to arbitrate, because the power doesn't reside with me, at least at the point of contact as I specifically mentioned in my comment.

It isn't the 'possibility that the State will abuse it's power that concerns me. UNTIL you get to a courtroom the instrument of the State's power is that LEO who has you 'detained', pulled over, stopped.
UNTIL you get to a courtroom the power is his, hence the reason why i've to date forked over my ID. I'm not saying it's ok by me nor am I happy with the arrangement.
But at the point of contact ?

You said you acted "purely out of fear for what can happen to you BEFORE you ever see a court or a judge".

The LEO is the official representative of the State. The fear that he/she will abuse the State's power that concerns you. Fear of what that State official can/will do if you don't hand over I.D. has intimidated you into complying with the demand for I.D.
This is the tyranny that I am referring to. It is the tyranny that has ever so slowly been introduced so that the average person doesn't even give it a second thought. The fear is not a quake in your boots kind of fear, it is more subtle than that, it is a knowledge that the LEO will find something to charge you with if you don't submit to their demands. It has been ingrained into the fabric of society. It has been strengthened by shows like C.O.P.S. and DEA and HOMELAND SECURITY.
It is overcome only by standing your ground and refusing to comply with extra-legal "requests" or demands.

[hobard]

In "Hiibel", the 9th circuit ruled you have an obligation to identify yourself if detained. The same decision however, specifically disallows a peace officer from arresting you for violation of 148 for failing to identify yourself. The court said, "The use of Section 148 to arrest a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment's proscription against unreasonable searches and seizures."

Basically, you are supposed to identify yourself, but the police can do very little about it if you refuse.

Once you are arrested, you are required to answer any routine booking questions (including your identity), or you will be in violation of 148.

This is all per the Peace Officer's Legal Sourcebook (authored by the District Attorney's Association), so put whatever emphasis on it's validity you feel is appropriate.

[Decoligny]

In "Hiibel", the 9th circuit ruled you have an obligation to identify yourself if detained. The same decision however, specifically disallows a peace officer from arresting you for violation of 148 for failing to identify yourself. The court said, "The use of Section 148 to arrest a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment's proscription against unreasonable searches and seizures."

Basically, you are supposed to identify yourself, but the police can do very little about it if you refuse.

Once you are arrested, you are required to answer any routine booking questions (including your identity), or you will be in violation of 148.

This is all per the Peace Officer's Legal Sourcebook (authored by the District Attorney's Association), so put whatever emphasis on it's validity you feel is appropriate.

If I recall correctly Hiibel was a case was from Nevada which has a stop and identify law. The Nevada stop and I.D. law was deemed constitutional in Hiibel. Since California doesn't have any such stop and I.D. law, the ruling in Hiibel doesn't apply.

Correct me if I am wrong on the case, or on the interpretation as I don't have the case handy and my computer at work is acting a little hinky right now, so am having trouble researching.

[M1A Rifleman]

40302. Whenever any person is arrested for any violation of this
code, not declared to be a felony, the arrested person shall be taken
without unnecessary delay before a magistrate within the county in
which the offense charged is alleged to have been committed and who
has jurisdiction of the offense and is nearest or most accessible
with reference to the place where the arrest is made in any of the
following cases:
(a) When the person arrested fails to present his driver's license
or other satisfactory evidence of his identity for examination.
(b) When the person arrested refuses to give his written promise
to appear in court.
(c) When the person arrested demands an immediate appearance
before a magistrate.
(d) When the person arrested is charged with violating Section
23152.



Before going this route, be advised that the scheduling of a hearing before magistrate may take several days, especially over a weekend, and you will spend your time waiting in jail for your requested hearing.

[Librarian]

40302. Whenever any person is arrested for any violation of this
code, not declared to be a felony, the arrested person shall be taken
without unnecessary delay before a magistrate within the county in
which the offense charged is alleged to have been committed and who
has jurisdiction of the offense and is nearest or most accessible
with reference to the place where the arrest is made in any of the
following cases:
(a) When the person arrested fails to present his driver's license
or other satisfactory evidence of his identity for examination.
(b) When the person arrested refuses to give his written promise
to appear in court.
(c) When the person arrested demands an immediate appearance
before a magistrate.
(d) When the person arrested is charged with violating Section
23152.



Before going this route, be advised that the scheduling of a hearing before magistrate may take several days, especially over a weekend, and you will spend your time waiting in jail for your requested hearing.

All of which applies to violations of California Vehicle Code, as you have correctly quoted.

That's not the case generally.

[Decoligny]

40302. Whenever any person is arrested for any violation of this
code, not declared to be a felony, the arrested person shall be taken
without unnecessary delay before a magistrate within the county in
which the offense charged is alleged to have been committed and who
has jurisdiction of the offense and is nearest or most accessible
with reference to the place where the arrest is made in any of the
following cases:
(a) When the person arrested fails to present his driver's license
or other satisfactory evidence of his identity for examination.
(b) When the person arrested refuses to give his written promise
to appear in court.
(c) When the person arrested demands an immediate appearance
before a magistrate.
(d) When the person arrested is charged with violating Section
23152.



Before going this route, be advised that the scheduling of a hearing before magistrate may take several days, especially over a weekend, and you will spend your time waiting in jail for your requested hearing.

Might want to note that this is CALIFORNIA VEHICLE CODE.

It does not apply to the person who is walking down the sidewalk with a gun on his/her hip.

If you are pulled over for a Vehicle Code violation, the this section applies.

[Meplat]

Case law is pretty clear that you have to at least give him oral identification (name, home address.) However, in CA there is no "must show ID" law as the one on the books was struck by SCOTUS.

-Gene

It would be a hoot to memorize the minimum like we were trained to do according to the code of conduct.

Officer: Do you know why I stopped you?

You: SIR! Doe, John, 7-23-77. SIR!

Officer: What's your problem?

You: SIR! Doe, John, 7-23-77. SIR!

Officer: Have you been drinking?

You: SIR! Doe, John, 7-23-77. SIR!

Officer, to partner: 5150?



I think it has potential.:43:

[alpha_romeo_XV]

This thread shows me it is important to keep up on changes in laws. I my senior civics class ( calif. ‘75) we were told by a uniformed PD that after reaching age 18 you had to carry a DL or Cal ID when in public and could be asked to produce it without cause. I had no idea a SC decision had overturned that in ’83 and need to correct what I just told my son a few months ago. Other "laws" I recall from that ’75 class were that you had to assist any LEO if asked to do so ( like commandeering your car as they always show on TV?) or disperse from an "unlawful assembly" if asked to do so.

However, I imagine that if stopped and cited for any (suspected) violation of municipal codes you would be required to have ID or go downtown. e.g. dog not on a leash, alcohol on the beach (SD city beaches), jaywalking, any host of infractions not involving a motor vehicle.

[Meplat]

Friends,

Though you have a right to remain silent if arrested, the Supreme Court has recently ruled that stating your true name does not jeopardize your right to not make any self-incriminating statements. .

That sounds illogical to me. What if you are an escaped convict. Identifying yourself indicates that you are not where you are lawfully supposed to be.

:confused:

[mdouglas1980]

So does this apply to when you are pulled over for a traffic violation too? Or in this instance are you required to give him your DL too? Or may you simply ID yourself and provide you car registration and proof of Ins?

[Meplat]

How about DOB? That seems to be important information for the search engine.

Though personally I am eager to give name and DOB because my record is as that of a girl in convent. Am I letting my fellow libertarians down?:thumbsup:



Pretty sure a 12031e detention would be grounds to seek at least oral ID (name & home address.)

There is no grounds, absent operating a motor vehicle, to require PHYSICAL ID of any sort.

[Flintlock Tom]

I have actually considered refusing a 12031e check, but the problem there is that then they have PC to arrest you. . . This is the part that get my goat.

They, under authority, confiscate your arm to determine its loaded status. Refuse them this unwarranted search and now they have PC to arrest and subsequently search you.

It is almost like...entrapment. (I know it isn't ACTUALLY intrapment, but it is similar in my view.)

This raises an interesting question: If I refuse to allow the officer to inspect my firearm pursuant to 12031e, this is grounds for arrest. When he arrests me, presumably for 'suspicion of carrying a loaded firearm', he will take my firearm and see that it is unloaded. What then? Does he still arrest me? Under what charge?

In order to determine whether a firearm is loaded, peace officers are authorized to examine any
firearm carried by anyone on his or her person or in a vehicle while in any public place, on any
public street, or in any prohibited area of an unincorporated territory. Refusal to allow a peace
officer to inspect a firearm pursuant to these provisions is, in itself, grounds for arrest. (Penal Code
§ 12031(e).)

[Librarian]

So does this apply to when you are pulled over for a traffic violation too? Or in this instance are you required to give him your DL too? Or may you simply ID yourself and provide you car registration and proof of Ins?

The Vehicle Code for this has already been posted in this thread; yes, if you are stopped for a CVC violation, you must provide your DL - the stop is an arrest.

CVC: 12951. (a) The licensee shall have the valid driver's license
issued to him or her in his or her immediate possession at all times
when driving a motor vehicle upon a highway.
Any charge under this subdivision shall be dismissed when the
person charged produces in court a driver's license duly issued to
that person and valid at the time of his or her arrest, except that
upon a third or subsequent charge the court in its discretion may
dismiss the charge. When a temporary, interim, or duplicate driver's
license is produced in court, the charge shall not be dismissed
unless the court has been furnished proof by the Department of Motor
Vehicles that the temporary, interim, or duplicate license was issued
prior to the arrest, that the driving privilege and license had not
been suspended or revoked, and that the person was eligible for the
temporary, interim, or duplicate license.
(b) The driver of a motor vehicle shall present his or her license
for examination upon demand of a peace officer enforcing the
provisions of this code.



There is some allowance for unsatisfactory identification if the offense doesn't require the officer to haul you off to jail:
CVC: 40303. (a) Whenever a person is arrested for any of the offenses
listed in subdivision (b) and the arresting officer is not required
to take the person without unnecessary delay before a magistrate, the
arrested person shall, in the judgment of the arresting officer,
either be given a 10 days' notice to appear, or be taken without
unnecessary delay before a magistrate within the county in which the
offense charged is alleged to have been committed and who has
jurisdiction of the offense and is nearest or most accessible with
reference to the place where the arrest is made. The officer may
require that the arrested person, if he or she does not have
satisfactory identification, place a right thumbprint, or a left
thumbprint or fingerprint if the person has a missing or disfigured
right thumb, on the 10 days' notice to appear when a 10 days' notice
is provided.

[fairfaxjim]

How about DOB? That seems to be important information for the search engine.

Though personally I am eager to give name and DOB because my record is as that of a girl in convent. Am I letting my fellow libertarians down?:thumbsup:

I wouldn't be so eager to provide anything - regardless of my record - besides, how would you explain being out of the convent? :D

In reality, records are not always correct, nor are they matched to the correct person. Ask those that ended up on the "no fly lists" how that worked for them. A conspiracy is not necessary to get your butt arrested improperly, stupidity and SNAFU's will do it as well. EVERY LEO contact has the potential of going badly - best to avoid them, and if not avoided, make them as quick and unrevealing as possible.

[hobard]

If I recall correctly Hiibel was a case was from Nevada which has a stop and identify law. The Nevada stop and I.D. law was deemed constitutional in Hiibel. Since California doesn't have any such stop and I.D. law, the ruling in Hiibel doesn't apply.

Correct me if I am wrong on the case, or on the interpretation as I don't have the case handy and my computer at work is acting a little hinky right now, so am having trouble researching.

The opinion given by the court is much more broad than just Nevada's stop and identify law. While the Nevada statute instigated the case, the ruling specifically addresses the constitutionality of demanding identification during a detention. The only difference between the applicability in California and Nevada, is Nevada provides a criminal penalty for failing to comply. In California, you will not receive any criminal penalty for refusing to comply, but during a detention it is still constitutional for a peace officer to demand you identify yourself. By failing to comply, you open yourself up to further scrutiny, as it is constitutional for a peace officer to attempt to identify you by interviewing neighbours, leafing through your wallet, possibly running the serial number on your weapon to determine who the owner is (an untested example, but it would probably hold up as a reasonable method of attempting to identify someone).

[pnkssbtz]

Kolender vs. Lawson (http://usff.com/hldl/courtcases/kolendervlawson.html)
[4] Section 647(e), as presently drafted and construed by the state courts, contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a "credible and reliable" identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. An individual, whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets "only at the whim of any police officer" who happens to stop that individual under Section 647(e).

I join the Court's opinion; it demonstrates convincingly that the California statute at issue in this case, Cal.Penal Code Section 647(e), as interpreted by California courts, is unconstitutionally vague. Even if the defect identified by the Court were cured, however, I would hold that this statute violates the Fourth Amendment. [FN1] Merely to facilitate the general law enforcement objectives of investigating and preventing unspecified crimes, States may not authorize the arrest and criminal prosecution of an individual for failing to produce identification or further information on demand by a police officer.

We have held that the intrusiveness of even these brief stops for purposes of questioning is sufficient to render them "seizures" under the Fourth Amendment. See Terry v. Ohio, 392 U.S., at 16, 88 S.Ct., at 1877. For precisely that reason, the scope of seizures of the person on less than probable cause that Terry permits is strictly circumscribed, to limit the degree of intrusion they cause. Terry encounters must be brief; the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him.

By defining as a crime the failure to respond to requests for personal information during a Terry encounter, and by permitting arrests upon commission of that crime, California attempts in this statute to compel what may not be compelled under the Constitution. Even if Section 647(e) were not unconstitutionally vague, the Fourth Amendment would prohibit its enforcement.

In sum, under the Fourth Amendment, police officers with reasonable suspicion that an individual has committed or is about to commit a crime may detain that individual, using some force if necessary, for the purpose of asking investigative questions. [FN3] They may ask their questions in a way calculated to obtain an answer. But they may not compel an answer, and they must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest. [FN4]

[Meplat]

Point taken. Advice taken under advisement.:thumbsup:

I wouldn't be so eager to provide anything - regardless of my record - besides, how would you explain being out of the convent? :D

In reality, records are not always correct, nor are they matched to the correct person. Ask those that ended up on the "no fly lists" how that worked for them. A conspiracy is not necessary to get your butt arrested improperly, stupidity and SNAFU's will do it as well. EVERY LEO contact has the potential of going badly - best to avoid them, and if not avoided, make them as quick and unrevealing as possible.

[Fate]

I hate myself for admitting it but I've 'yes sir'd' and forked over ID to LEO all my life, even in situations where LEO didn't deserve the respect, purely out of fear for what can happen to you before you ever see the inside of a courtroom.
Having met you I can say this is not an irrational fear for someone "DWB." As a white guy, I've never had to endure that kind of "preferential treatment," though I have black & latino friends who have.

[Gray Peterson]

Stop and Identification law (declared unconstitutional by the Kolander case in 1983) is unconstitutional everywhere (except for driving a car with driver license).

Stop and Identify is a different term of art. California has NO STOP AND IDENTIFY statute. The Hiibel case only applies in states that have passed stop and identify statutes, such as Nevada. None of the West Coast states (Oregon, Washington, California, and Alaska) has this statute on the books, therefor, Hiibel does NOT apply in these states.

http://en.wikipedia.org/wiki/Stop_and_Identify

[SteveH]

Those memos are wrong, as the 12031 check is not a Terry stop.

He can ask, beg, request, demand to see ID all day long and you still don't have to show him or tell him anything.

Provided you have no commited a violation of law. However if you so much as jay walked or dropped a gum wrapper on the ground and then refuse to provide Identifify yourself for the resulting citation, you are going to jail.

[SteveH]

Might want to note that this is CALIFORNIA VEHICLE CODE.

It does not apply to the person who is walking down the sidewalk with a gun on his/her hip.

If you are pulled over for a Vehicle Code violation, the this section applies.


A smart cop will watch the UOC activist until he commits a minor violation of the CVC or CPC before contacting him. It's chess not checkers.

[hobard]

Stop and Identification law (declared unconstitutional by the Kolander case in 1983) is unconstitutional everywhere (except for driving a car with driver license).

Stop and Identify is a different term of art. California has NO STOP AND IDENTIFY statute. The Hiibel case only applies in states that have passed stop and identify statutes, such as Nevada. None of the West Coast states (Oregon, Washington, California, and Alaska) has this statute on the books, therefor, Hiibel does NOT apply in these states.

http://en.wikipedia.org/wiki/Stop_and_Identify

The penal code does not define everything a peace officer may and may not do. For example, there is no penal code section saying an officer may demand you remove your hands from your pockets. The courts, however, have ruled it is constitutional for an officer to demand (and force) you to do so. Just because there is no penal code section authorizing a peace officer to identify a detainee, does not mean they are not authorized to do so.

The constitutionality of identifying a detainee is very different from a random stop initiated using a "stop and identify" law. In order for the detention to be lawful, the officer must have a reasonable suspicion that the detained person is involved in some sort of criminal activity. In Hiibel, the 9th circuit ruled that under those circumstances, it is constitutional for an officer to demand a detainee identify them self. Because California falls under the 9th circuit's jurisdiction, it is constitutional for an officer to demand a detainee identify himself in California as well.

The bottom line is: the Hiibel ruling does apply in California, but there is no criminal penalty for failing to identify yourself so the court's ruling has no teeth.

Whether being the target of a 12031 check qualifies you as a detainee or not, I haven't the foggiest idea I wouldn't think legally carrying an unloaded firearm would qualify as reasonable suspicion to detain a person. I don't believe written statue may authorize a detention without reasonable suspicion. My gut says a court would rule a 12031 check unconstitutional, but I wouldn't want to be the person to find out.

[1911su16b870]

A smart cop will watch the UOC activist until he commits a minor violation of the CVC or CPC before contacting him. It's chess not checkers.

...or violation of muni-code, i.e. spitting, litter etc. and now has PC for contact and to issue a citation to which you must now identify yourself and sign or...worse...gulp! :eek:

SO don't do anything to give PC for contact when UOC-ing!