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Saturday, July 24, 2004

A Rose by Any Other Name...

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Recently, the Supreme Court upheld the constitutionality of a law requiring persons to disclose their names to police officers when asked.  The short story there was an arrest of a man for failure to disclose his name to police.  He thought it was a little gulag ("We must see your Papers!") to be arrested for merely NOT telling his name.  In the absence of some other probable cause to question him... I tend to agree.  But the Supreme Court didn't agree. 

I am all ready on record as not being a slippery slope girl but  I go to school with some serious activists so I know the slippery slope line of reasoning.  (Where will it all end?  What's next?  Who will stop the madness?)  The argument here is that cops shouldn't just be asking people their names, since names are a lot like finger prints these days.  Names are keys to unlock doors which lead to secret information.  And the police should be required to have either Probable Cause (the holy grail of investigation) or at least Reasonable Articulable Suspicion (it's bratty little brother).  Okay.  That's not a bad place to draw the line.  Think about it.

Picture this.  You're standing around, minding your own business, when a police officer asks you your name.  Feeling very AMERICAN (it's a free country) today you decide that it's not really any of her business **.  You haven't done anything wrong and there is no reason to suspect that you have, so you say "I'd rather not say.  Good day, Madam."  You've just broken a law.  (depending on what jurisdiction you're in)  You can be arrested for this.  Punished for it.  For your pinko-commie non-compliance.  Further, your failure to name yourself could arguably be considered Probable Cause to suspect you of something.  Otherwise, why not tell(Slippery slope fans jump on your sleds) 
For the non-legally inclined I will mention that once you are lawfully arrested, here for failure to give your name, you can be lawfully searched without a shred of further probable cause.  (We are speeding down the slope now, close to out of control.  Who will stop the madness?)
On the other hand, fear that police will use this handy little law to shoe horn otherwise unconstitutional searches into the "Search Incident to Lawful Arrest" category is just more pinko propaganda, right?  Well, I'm not so sure.  Check out this little incident.  This was not a tell us your name case but the principle is the same.

Guy gets spotted (read: Profiled as ILLEGAL)  minding his owning business  (read: Loitering) and ends up arrested.  He doesn't want to give his name cause that will lead to discovering that he is breaking some serious immigration laws.  So, to begin with, he lies about his name but eventually they figure out who he is and the jig is up.

When he finally ends up in court a very clever lawyer says "Hey, the whole stop and subsequent interrogation was unconstitutional and therefore you shouldn't be able to use his NAME which you got as a result of the unconstitutional "stop" in the first place."  Generally, evidence obtained in violation of a persons rights is  inadmissible against him. (We call that fruit of the poisonous tree)  This rule discourages unconstitutional police behavior.    But this rule does not apply to identity.  No matter how egregious the violation that lead to the identification, the identification itself can not be suppressed.  It may be poison fruit but it remains untainted.  This stupid name law would mean it's not even poison fruit anymore.

What's to stop police from just asking EVERYBODY?  "Hey, what's your name?"  Once I have your name I can open up that secret stash of information.  If you refuse to give me your name I can arrest you and then open up that secret stash in your pockets.  Either way, I am fishing.  No longer required to have probable cause or to even be able to articulate a suspicion.  And the only thing that stands between me and you is my GOOD WORD that I am not going to just fish.  Since I've got nothing to lose.

You may be tempted, like I once was, to say "Hello! I am not a criminal so why should I care what happens to criminals?" Let me remind you that you are not a criminal today, but tomorrow you may feel grumpy and not want to tell the nice officer your name.  You might think that crazy Constitution was intended to protect you from getting questioned on the street for no good reason.

 All I can say then is "Don't drop the soap."

** I use a lady officer so those of you that are bored can just think about chicks with hand cuffs.


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