interesting side bar: (pulling comments from Slashdot discussion)
HIIBEL v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA --
http://www.law.cornell.edu/supct/html/03-5554.ZS.h tml [cornell.edu]
[T]he Nevada Supreme Court has interpreted the instant statute to require only that a suspect disclose his name. It apparently does not require him to produce a driver's license or any other document. If he chooses either to state his name or communicate it to the officer by other means, the statute is satisfied and no violation occurs.
This went to the US Supreme Court. The Hiibel case law is as follows:
* If the police ask your name you must give it, but you cannot be compelled to give any supporting documentation.
* The majority also stated that if someone was convicted of a crime as a consequence of giving their name that the issue could be reconsidered under a Fifth Amendment challenge but that such a challenge did not apply in this particular case.
You'll note in Dudley Hiibel vs. Nevada that they reference a previous case, Kolender vs. Lawson ( KOLENDER v. LAWSON, 461 U.S. 352 (1983)461 U.S. 352).
Edward Lawson was "detained or arrested on approximately 15 occasions between March 1975 and January 1977 pursuant to Cal. Penal Code Ann. 647(e) (West 1970). 2 Lawson was prosecuted only twice, and was convicted once. The second charge was dismissed"
Edward Lawsons crime was being a black male in an affluent neighborhood and jogging. During these stops he did not have his drivers license on him, or did not feel the need to present his ID upon request. The police would then arrest him for either interfering with a police investigation or PC 647(e)
In particular Edward Lawson, when refusing to show ID, was charged with PC 647(e). His lawyer's contention was that PC 647(e)'s definition of "Identify" was constitutionally vague, and successfully argued his case before the California Supreme Court.
PC 647(e)
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 or herself and to account for his or her presence when
requested by any peace officer so to do, if the surrounding
circumstances would indicate to a reasonable person that the public
safety demands this identification.
In the Supreme Court of California the judges made the following statements and ruling:
Section 647(e), as presently drafted and as 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 647(e). Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90 (1965). Our concern here is based upon the "potential for arbitrarily suppressing First Amendment liberties . . . ." Id., at 91. In addition, 647(e) implicates consideration of the constitutional right to freedom of movement. See Kent v. Dulles, 357 U.S. 116, 126 (1958); Aptheker v. Secretary of State, 378 U.S. 500, 505 -506 (1964). 8 [461 U.S. 352, 359]
...
We conclude 647(e) is unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute. 10 Accordingly, the judgment of [461 U.S. 352, 362] the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
...
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. 3 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. 4
"Shopkeeper's Privilege" is a whole other issue too. Which was also violated and thus the protections under it to a shopkeeper for unlawful imprisonment are no longer granted.
In relation to "Shopkeeper's Privilege" which in most states falls under Common Law:
Some states, such as Washington and California have codified their Common Law and incorporated them into the UCC and PC. California in particular, we have Penal Code 490.5 (f):
Penal Code 490.5 f) (1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises.
Since (in California) PC 490.5(f) is in the Penal Code section of law, the definition of "Probable Cause" falls under that of the same Penal Code.
Under PC 490.5(f) a shopkeeper must have "Probable Cause" to believe the person being detained is attempting to, or unlawfully took merchandise from the store.
Since theft is a misdemeanor, and NOT a felony, then "Probable Cause" required to arrest requires direct first hand knowledge of the act or event taking place. i.e. An agent of the store must see personally, or via CCTV the act being committed.
If the theft was a felony (grand theft), then the "Probable Cause" necessary to arrest for a felony only requires a "reasonable doubt".
Regardless, refusal to submit to a search is not grounds for probable cause for either a misdemeanor or a felony. (Fourth Amendment Rights, confirmed numerous times by the US Supreme Court.)
) at the register next to the "Security" folk. I mean they were RIGHT THERE. Couldn't they have seen me purchase it???
