E-Newsletter Edition: July 16, 2008
Response Provided By:
Jack Ryan, J.D.
Always note that state law may be more restrictive on police power than the U.S. Constitution.
On two occasions recently patrol officers encountered people that had no ID. When the officers ran the information given by the subject, they got no record. In both cases the officers transported the person to LIVESCAN for ID only. Are these investigations consistent with Constitutional Standards?
As written both of the cases reported below may be constitutionally deficient. The first case is a clear violation; the second is deficient as written.
Reported Event 1:
While on patrol, observed two males riding bicycles and hanging around the rear of the video store. I stopped and spoke with the males. I asked them for identification in which one of the males, 20 year old Harry Gashat produced a driver’s license but the other male was unable and said he didn’t have any identification. He told me his name was Frederick Bishop, DOB:(removed for web). A computer check revealed “no record found” on Bishop and in further speaking with him, he said he was a “traveler” and really didn’t live anywhere. I transported Bishop to Anytown Police Headquarters for identification purposes utilizing Live Scan. After processing Bishop on Live Scan, his fingerprints came back “no record found.” I then transported Bishop back to Gashat’s residence.
They were both advised to stay away from hanging out at the video store.
Auth. Note: Video Store is posted no bicycle, skateboard, etc..
Reported Event 2:
On Tuesday, May 25, 2007at approximately 0052 hours, I observed a vehicle traveling southbound in the 200 block of Dade Boulevard. The vehicle crossed over into the lane of oncoming traffic and made an unsafe lane change without signaling. The vehicle was a red Pontiac displaying NH LIC#12345 operated by a black male. The driver was unable to provide any identification and identified himself to me as Alston Smith (DOB 07-11-1986). While speaking to Alston, he changed the spelling of his name twice and provided me with two birth dates comprised of the same numbers but with the day and month reversed; additionally, Alston said his social security number was 123-45-6789. According to Motor Vehicle, the vehicle was registered to Barry White from Concord NH. Alston said that White had allowed him to use the vehicle for the past two-days. I noticed that Alston had two cellular phones in his possession; one month to month and the other was a pre pay. I asked Alston to call WHITE, so he could identify who he had allowed to use his vehicle. Alston said he didn’t have his phone number and one of the phones didn’t work. In checking with Motor Vehicle on the name Alston it came back no record found; therefore, due to the inconsistency of information given by Alston coupled by his inability to have anybody identify him, he was subsequently taken to Anytown Police Headquarters and processed on Live Scan. Alston was positively identified as Harry Gashat (DOB 07-11-1986), social security 987-65-4321. Gashat was returned to police headquarters and placed into a cell. Turnkey McGruff agreed to watch him until the morning. A criminal complaint was prepared and day work officers will arraign Gashat in the morning. He will be charged with State Statute (a) False I.D. to law enforcement and State Statute (a) driving while operating privilege is suspended or revoked. A check with the Department of Transportation revealed that Gashat’s driver’s license was in fact suspended and revoked. He was advised were his friend’s vehicle had been towed.
The foundation case which applies to both of these reported events is Dunaway v. New York.i Dunaway was decided by the United States Supreme Court in 1979. The bright-line rule that comes out of Dunaway is that before a person can be transported to a police station without their consent, the officer must have probable cause to believe that a crime has been committed and that the person to be transported is the person who committed the crime.
The Dunaway case involved a police investigation into an attempted robbery of a pizza parlor in Rochester, New York which led to the murder of the owner. During the investigation, Detective Fantigrossi was given information concerning a possible lead in the case which had been provided by a subject who was in jail. Detective Fantigrossi questioned this jail-house informant who identified Dunaway. Detective Fantigrossi concluded that the information provided was insufficient to establish probable cause to obtain a warrant. Notwithstanding the lack of probable cause, Detective Fantigrossi ordered other detectives to “pick him up” and “bring him in.” The detectives arrested Dunaway and brought him to the police station. He was Mirandized and questioned which led to a confession.
In reviewing the case, the United States Supreme Court issued a bright-line rule which stands for two propositions. First, a person who is involuntarily transported to a police station is under arrest (or seized) for Fourth Amendment purposes and second, this type of seizure (transporting someone involuntarily to the station) requires probable cause to believe that a crime has been committed and probable cause to believe that this is the person who committed it.
A second case, Hayes v. Florida,ii involved what the United States Supreme Court concluded was an involuntary transport to the police station so that the police could obtain fingerprints, is also on point. Hayes was the chief suspect in a burglary/sexual assault. Officers went to his house and asked that he accompany them to the station to be fingerprinted. When Hayes became reluctant he was threatened with arrest. Hayes then said that he would rather just go to the station than be arrested. At the outset, the Court concluded that Hayes’ consent following threat of arrest was no consent at all. The Court then re-iterated the holding of Dunaway regarding the involuntary transportation of a person to the police station, even simply to obtain fingerprints, is an arrest requiring probable cause to believe a crime has been committed and the person transported is the person who committed it.
It should be noted that many courts have concluded that any involuntary transportation of a subject from one location to another constitutes an arrest which must be supported by probable cause.
A good example is provided by a case from the Rhode Island Supreme Court which concluded that the involuntarily transportation in a locked police vehicle is an arrest which requires probable cause and cannot be justified by reasonable suspicion.iii
The Guzman case involved a murder in the City of Providence. In the middle of the afternoon, Jorge Diep was shot and killed while parked in his auto on Farragut Avenue, near Roger Williams Park. A witness to this murder had looked out of the window of his home after hearing gunshots and observed a man running from the scene. The witness described the subject who fled as a black male, wearing a red baseball cap and a black hooded jacket. This description was broadcast over the police radio.
Officer Michelle Tella heard the broadcast while she was at roll-call and immediately went into the area of the shooting. Twenty-minutes after the shooting, approximately 10-12 blocks from the shooting, Officer Tella observed a black male, wearing a red baseball cap and carrying a black jacket under his arm, milling around at an accident scene. Officer Tella approached this subject as he was beginning to leave and was able to grab him by the arm. As she grabbed him, she felt his racing pulse. Officer Tella frisked the suspect, Juan Guzman, placed him in the locked rear seat of her cruiser and transported him back to Farragut Avenue.
Upon his arrival back at the scene, Guzman was positively identified by the witness as the person he had seen flee after the shots were fired. Guzman was then transported to the police station where he subsequently confessed to Diep’s homicide.
On appeal Guzman argued that the identification and subsequent confession should not have been allowed at trial alleging that Officer Tella lacked probable cause to arrest him at the accident scene and thus, all the events flowing from that arrest should have been excluded as the fruit of the poisonous tree. The Rhode Island Supreme Court rejected Guzman’s argument and held that “Officer Tella possessed the requisite probable cause to detain and arrest Guzman when she stopped him on the street and placed him in the cruiser. Our conclusion is based upon (1) her definite knowledge that a crime had been committed; (2) the match between Guzman’s appearance and the eyewitness’ description of the gunman’s gender, race and clothing; (3) the arrest’s proximity in time (twenty minutes from the crime’s commission) and (4) place (ten to twelve blocks from the murder scene) (5) at a location that was consistent with the direction in which the gunman had fled after the shooting; and (6) the suspect’s extreme nervousness when the officer stopped him.”
It is important to note that the court did not include the identification by the witness in the probable cause analysis. The reasoning stems from the court’s determination that “ …when Officer Tella seized Guzman on the street, placed him in her locked police cruiser, and then transported him to the murder scene for identification purposes, she arrested Guzman as a matter of law.” Since Guzman had been arrested prior to the identification, probable cause to arrest had to be supported by the facts known to Officer Tella prior to her transporting Guzman back to the crime scene.
In both of the reported events, the subject was transported to the police station for fingerprinting on the live scan for identification purposes. In both events an arrest occurred which would have to be justified by probable cause to believe a crime had been committed and probable cause to believe that the person to be transported was the one who committed the crime suspected.
In the first reported event the officer does not articulate any reported crime or any facts which would indicate that a crime had been committed. Further the officer did not articulate any facts supporting probable cause to believe that Bishop had committed a crime. It is not a crime to have no record.
The second reported event is a little more difficult. The officer reported: “In checking with Motor Vehicle on the name Alston it came back no record found; therefore, due to the inconsistency of information given by Alston coupled by his inability to have anybody identify him, he was subsequently taken to Anytown Police Headquarters and processed on Live Scan.” As reported the officer did not articulate what crime he suspected. The officer did provide a great detail as to inconsistencies developed during the stop. The first question is whether the “no record” finding would establish that the driver, Alston Smith, was driving without a license. If this offense is established and the offense is one for which an officer can make an arrest, then the arrest is valid.
Additionally, many states have a criminal charge for providing false information to law enforcement personnel if the person is being investigated for a criminal offense and false information will obstruct the justice process. Under scenario 2, if the state has such a statute, the officer should have articulate that he was investigating the motor vehicle offenses and that he had probable cause, based on the contrary identity information provided by the subject to support the charge of false information to a law enforcement officer. Under this circumstance, the arrest would be valid.
If driving without a license and the traffic violations are not offenses for which a person could be arrested in the state where these reported events occurred, the arrest may not violate the Fourth Amendment to the United States Constitution based upon a recent United States Supreme Court ruling.
The case, Commonwealth of Virginia v. Moore,iv involved an arrest for a suspended license followed by searches incident to that arrest.
On February 20th, 2003, two detectives in Portsmouth, Virginia heard a radio dispatch concerning a subject, “Chubs” who was driving with a suspended license. The two officers responded to the area. One of the officers knew that Chubs was actually David Moore. The detectives spotted Moore and pulled him over. The detectives handcuffed Moore and put him in their police car. They Mirandized Moore and secured a consent to search his hotel room. Due to a miscommunication, no one searched Moore at the scene of his arrest; rather Moore was searched after being driven to his hotel room. Upon searching Moore he was found to be in possession of 16 grams of crack cocaine and $516 in cash. Moore challenged the seizure of the evidence arguing that he should not have been searched incident to his arrest. His argument was based on the fact that under Virginia law a person driving on a suspended license is supposed to be cited and released at the scene unless they meet one of the specified exceptions which allow a custodial arrest by the statute.v The exceptions were not raised by the prosecutor in the lower court. Essentially Moore argues that even thought the officers had probable cause to arrest him; they should have issued him a citation instead of making a custodial arrest. He further argued that if the officers could not make a custodial arrest then they would not be allowed to search him incident to arrest. Essentially, his argument is that the search incident to arrest was the fruit of an unlawful arrest due to the state statute on arrest.
One of Moore’s arguments for suppression had its foundation in a prior United States Supreme Court case, Knowles v. Iowa.vi In Knowles, the United States Supreme Court rejected a search incident to citation which was allowed under state statute if the offense for which the citation was being issued allowed an officer to make an arrest if they so chose.vii In Knowles the Court re-iterated that a significant purpose and justification for search incident to arrest is the officer’s lengthy exposure to the arrestee which may allow the arrestee to reach for a weapon or destroy evidence. The Court recognized that this danger did not exist if officer were not going to be exposed to the subject since they were issuing a citation and releasing him. Moore prevailed in the Virginia Supreme Court on Fourth Amendment grounds setting off an appeal to the United States Supreme Court by the Commonwealth of Virginia.
The United States Supreme Court rejected Moore’s arguments on a number of grounds. The Court began with a historical analysis of the common law which had never based Fourth Amendment analysis on a state’s particular laws. It concluded that there was no foundation for these arguments in the history of the Fourth Amendment.
The Court then turned to its prior cases where it has always held that an arrest under the Fourth Amendment is reasonable where supported by probable cause. The Court noted that where a crime, even a minor crime, is committed in the officer’s presence, there is probable cause to arrest and such an arrest is constitutionally reasonable.
Throughout the opinion, the Court noted that a state is free to place greater restrictions on officers and provide enhanced privacy protections for persons in their state. When doing so, the state must do so under state law and provide the remedy for a violation of the rule under state law. Where a state provides greater protection however, the Fourth Amendment reasonableness analysis does not change as a result of that protection. If the state chooses to restrict law enforcement actions beyond that mandated by the United States Constitution, the state must created its own remedy for a violation of that state restriction, it cannot rely on the Fourth Amendment and the Fourth Amendment’s exclusionary rule. The Court noted that Virginia had not created a state exclusionary provision and instead was trying to apply the Fourth Amendment’s exclusionary provision.
The Court concluded: “While individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution, state law [does] not alter the content of the Fourth Amendment.” The Court also noted that prior decisions made clear that “the Fourth Amendment’s meaning did not change with local law enforcement practices-even practices set by rule. While these practices ‘vary from place to place and from time to time,’ Fourth Amendment protections are not ‘so variable’ and cannot ‘be made to turn upon such trivialities.’” The Court held that “when states go above the Fourth Amendment minimum, the [United States] Constitution’s protections concerning search and seizure remain the same.”
In the decision the Court noted the important interests protected by custodial arrests: “Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation.” The Court went on to reiterate that its prior decisions did not distinguish minor crimes from more serious offenses when determining the reasonableness of the arrest on Fourth Amendment grounds. “In Atwaterviii we acknowledged that nuanced judgments about the need for warrantless arrest were desirable, but we nonetheless declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based upon probable cause to believe a law had been broken in the presence of the arresting officer. The rule extends even to minor misdemeanors, we concluded, because of the need for a bright-line constitutional standard. If the constitutionality of arrest for minor offenses turned in part on inquiries as to risk of flight and danger of repetition, officers might be deterred from making legitimate arrests.”
Finally, the Court noted that if the Fourth Amendment reasonableness of an arrest were to incorporate the rules of state law, the validity of an arrest under the United States Constitution would vary from state to state depending upon the arrest law of that state. This would lead to a vague and confusing result.
As a result of the Court’s holding, the evidence against Mr. Moore was allowed.
An important aspect of both of these reported events is the underlying question as to what an officer may do in a case where a subject has no identification and the officer cannot verify the subject’s identity.
In Hiibel v. Nevadaix, the United States Supreme Court considered the constitutionality of an arrest and conviction based on the failure of the defendant to identify himself to police during a valid “Terry-Stop.”
In Hiibel, the Humboldt County Sheriff’s Department received a call of an assault in the middle of the afternoon. The caller reported seeing a man assault a woman in a red and silver GMC pickup on Grass Valley Road. A deputy was dispatched to the scene and found the truck as described parked on the side of the road. The deputy noted skid marks in the gravel behind the truck indicating a sudden stop. He further observed a female in the truck and a man standing on the side of the truck, all consistent with the caller’s report. The man appeared to be intoxicated and repeatedly refused the officer’s request for identification. The Court noted that the deputy asked Hiibel for identification eleven times. The man then began, in full view of the cruiser’s mobile video-recorder to taunt the officer to arrest him. The officer arrested Hiibel for obstructing an officer’s official duties. The basis of the “official duty” was a requirement under Nevada’s Investigative Stop statute that requires a person to identify themselves to an officer during such a stop. The Court cited statutes from twenty-states with a similar requirement during investigative stops.x It is important to note that without such a statute, it is doubtful that an arrest would be justified.
In upholding the arrest and conviction of Hiibel, the 5-4 majority of the Court first recognized that the stop of Hiibel met the constitutional standard for investigatory stops, specifically, reasonable suspicion. The Court extended this reasoning in stating that “obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” The Court noted that it is well established that an officer can ask a subject to identify themselves during a Terry stop and the only question was whether an individual could be prosecuted for failing to do so.
The Court concluded that a conviction for failing to identify oneself during a valid Terry stop in accord with a state statute is valid. The Court did distinguish the Nevada statute from other states in that it had been interpreted as only requiring a subject to identify themselves and does not require the production of reliable and credible identification. Under the ruling an officer would not be justified in arresting someone for failing to produce reliable or credible identification. An officer would be justified, assuming the officer is in one of the states with an identification statute (see endnote x.), in asking the subject their name in a case where the officer had reasonable suspicion to believe that the subject was involved in criminal activity.
The Bottom-Line: An officer may only transport a person to the station where the officer has probable cause to believe that a crime has been committed and probable cause to believe that the person being transported is the person who committed the crime.
For Fourth Amendment purposes an officer may have probable cause to arrest under the United States Constitution even though the state law is more restrictive.
Reported event 1, as reported, would be unconstitutional.
Reported event 2 may have been justified if the motor vehicle violations and driving without a license were offenses for which an arrest can be made. Even a minor offense may justify an arrest for U.S. Constitutional purposes.
A person cannot be transported to the police station for identification purposes without probable cause to arrest.
ii Hayes v. Florida, 470 U.S. 811 (1985).
iii State v. Guzman, 752 A.2d 1 (RI 2000).
iv. Moore v. Commonwealth of Virginia, 272 Va. 717 (Va. Supreme Ct. 2006) cert. granted Virginia v. Moore, 2007 U.S. LEXIS 9069 (September 25, 2007).
v § 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case; issuance of summons by special policemen and conservators of the peace
A. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer’s presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or § 18.2-266, or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82. Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.
2. Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, except as otherwise provided in Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.
vi Knowles v. Iowa, 525 U.S. 113 (1998).
vii Iowa Code 805.1 (The issuance of a citation in lieu of arrest or in lieu of continued custody does not affect the officer’s authority to conduct an otherwise lawful search. The issuance of a citation in lieu of arrest shall be deemed an arrest for the purpose of the speedy indictment requirements of rule of criminal procedure 2.33(2)(a), Iowa court rules.)
viii Atwater v. Lago Vista, 532 U.S. 318 (2001).
ix Hiibel v. Nevada, 542 U.S. 177 (2004).
x NRS § 171.123(3) is an enactment sometimes referred to as a “stop and identify” statute. See Ala. Code § 15-5-30(West 2003); Ark. Code Ann. § 5-71-213(a)(1) (2004); Colo. Rev. Stat. § 16-3-103(1) (2003); Del. Code Ann., Tit. 11, §§ 1902(a), 1321(6) (2003); Fla. Stat. § 856.021(2) (2003); Ga. Code Ann. § 16-11-36(b) (2003); Ill. Comp. Stat., ch. 725, § 5/107-14 (2004); Kan. Stat. Ann. § 22-2402(1) (2003); La. Code Crim. Proc. Ann., Art. 215.1(A) (West 2004); Mo. Rev. Stat. § 84.710(2) (2003); Mont. Code Ann. § 46-5-401(2)(a) (2003); Neb. Rev. Stat. § 29-829 (2003); N. H. Rev. Stat. Ann. §§ 594:2, 644:6 (Lexis 2003); N. M. Stat. Ann. § 30-22-3 (2004); N. Y. Crim. Proc. Law § 140.50(1)(West 2004); N. D. Cent. Code § 29-29-21 (2003); R. I. Gen. Laws § 12-7-1 (2003); Utah Code Ann. § 77-7-15 (2003); Vt. Stat. Ann., Tit. 24, § 1983 (Supp. 2003); Wis. Stat. § 968.24 (2003).