2019 Editions

Complete Winter 2019 Edition


Recent Cases and Notes

Correction: In the article on lineups in the Spring-Summer edition, we said that sequential lineups will be mandatory beginning in 2020. That was an error. They are not mandatory.

Does a refusal to ID constitute a violation of Penal Code section 148? In the Spring-Summer 2019 edition, we wrote that a detainee who refuses to identify himself can be arrested for 148 because such a refusal obstructs and delays the officer in the performance of his duties. In response, we have set forth the legal basis of this conclusion:

While the right to identify is settled law, there has been some uncertainty in California over what officers may do if the detainee refuses to do so. The uncertainty stems mainly from three Ninth Circuit cases.The first was Lawson v. Kolender (9C 1981) 658 F2 1362 in which the court ruled that California’s old vagrancy statute—Penal Code section 647(e)—was unconstitutional. This statute stated that a person was guilty of a misdemeanor—vagrancy—if he loitered “from place to place without apparent reason or business” and, when requested by officers, refuses to identify himself. This ruling was based on settled law that a person cannot be detained unless officers have reasonable suspicion that he was committing a crime, had committed a crime for which he had not yet been arrested, or was about to commit a crime. See Terry v. Ohio (1968) 392 US 1, 21. Thus, because section 647(e) authorized a detention based on nothing more than an officer’s observation of a person loitering “from place to place without apparent reason or business,” the court’s ruling that is was unconstitutional was plainly correct. See Brown v. Texas (1979) 443 US 47, 52.

In the second case, Martinelli v. City of Beaumont (9C1987) 820 F2 1491, the court blatantly misstated the ruling in Lawson when it wrote that the court in Lawson had ruled “that a California statute requiring persons to provide reliable identification upon request during Terry stops [i.e., during detentions] violated the fourth amendment’s proscription against unlawful searches.” As noted, however, the court in Lawson held that a requirement to identify violates the Fourth Amendment if the officers lacked legal grounds to detain.

In the third case, Carey v. Nevada Gaming Control Board (9C 2002) 279 F3 873, the court misinterpreted Lawson as ruling that, even if officers have grounds to detain a person, they cannot demand that the detainee identify himself. Specifically, in discussing the ruling in Martinelli, the court in Carey claimed that Lawson “held that arresting the plaintiff for refusing to identify herself during a Terry stop violated the Fourth Amendment.” As noted, Lawson said no such thing. Instead, it ruled it would be a violation of the Fourth Amendment to require a person to identify himself if the officers lack grounds to detain him.

That Martinelli and Carey were based on gross misinterpretations of constitutional law is supported by the Supreme Court’s 2004 ruling in Hiibel v. Nevada (2004) 542 US 177, 187 that “[t]he principles of [Terry v. Ohio (2004) 542 US 177, 187] permit a State to require a suspect to disclose his name in the course of a Terry stop.” Thus, because officers may ”require” detainees to identify themselves, a refusal to do so seems to fall within section 148. As the California Court of Appeal explained in People v. Long (1987) 189 CA3 77, 87 the court said, “To accept the contention that the officer can stop the suspect and request identification, but that the suspect can turn right around and refuse to provide it, would reduce the authority of the officer ... to identify a person lawfully stopped by him to a mere fiction. Unless the officer is given some recourse in the event his request for identification is refused, he will be forced to rely either upon the good will of the person he suspects or upon his own ability to simply bluff that person into thinking that he actually does have some recourse.”

Finally, any doubt on the issue was dispelled by the Ninth Circuit in US v. Christian (9C 2004) 356 F3 1103, 1106 in which the court ruled that neither Lawson, Martinelli, or Carey supported Christian’s argument that demanding ID from a person who has been lawfully detained violates the Fourth Amendment. The court explained that while officers cannot demand ID from people who have not been lawfully detained or arrested, “nothing in our case law prohibits officers from asking for, or even demanding, a suspect’s identification. Instead, our cases, as well as those of the Supreme Court, suggest that determining a detainee’s identity is an important aspect of police authority.” Emphasis added.

People v. Anthony
(2019) 32 Cal.App.5th 1102
ISSUE: After a suspect in a gang-related murder invoked his right to counsel, did a detective violate Miranda by questioning him about a related murder?

People v. Korte
(9th Cir. 2019) 918 F.3d 750
ISSUE: Did officers violate the Fourth Amendment by conducting a warrantless search of the defendant's car and by installing a GPS tracking device?

People v. Orozco
(2019) 32 Cal.App.5th 802
ISSUE: Did officers violate Miranda when, after a murder suspect invoked, they placed him in a room with his girlfriend and asked her to question him about the crime?

People v. Westerfield
(2019) 6 Cal.5th 632
ISSUE: In the investigation into the abduction and murder of a seven-year old girl, did the affidavits in support of five search warrants establish probable cause?