Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


"May I see your ID"?

A police officer comes up to you on the street and asks for your ID.  Do you have to give it to him?  As I wrote in a post four years ago discussing the 8th District's decision in State v. Houser, the law on that isn't exactly crystal clear.   But as the 8th District missed in Houser, and 10th District caught last week in State v. Westover, the key question is what happens after the cops ask you for identification.

The facts in the two cases are similar; in Houser, the cops approached a two black males sitting on a guardrail after receiving a tip that "several males were hanging out, possibly up to some kind of illegal activity."  In Westover, a police officer drove by three people standing around a parked car, and decided that one of them taking something from the trunk and carrying it into the house was worthy of further investigation.

In both cases, the court decides that there's no reasonable suspicion of criminal activity, so there's no grounds for a stop, but that the cops approaching somebody on a public street is a consensual encounter, and thus doesn't implicate the 4th Amendment.  So far, so good.

In both cases, the cops ask for identification.  Neither court found a problem with this, and there's not much room for disagreement; if a cop is free to walk up to you on the street (and he is), he's also free to ask you anything he wants.  You, of course, have the right to walk away, and there are a number of cases holding that if you do, that doesn't give the cops any basis for detaining you further.  Given the vagaries of the "totality of the circumstances" test, though, you can find cases where this, coupled with signs of "nervousness," are sufficient to cross that murky line between Inchoate Hunch and Reasonable Suspicion. 

The same thing happens next in both cases:  the cop takes the ID and goes back to the car and runs a warrant check.  How the courts treat that explains the different outcomes.  As the Westover panel puts it,

We conclude that no reasonable person would have felt free to terminate the encounter and go about their business, where an officer is holding that individual's identification and is using it to run a warrants check.

At that point, in short, the individual is detained, and the consensual encounter becomes a stop.  That means the police need reasonable suspicion to do that.  Despite the State's urging that the officer had a reasonable basis to "investigate the visibly nervous group of people waiting outside the known drug house on a cold winter night," the court wasn't buying. 

The Houser court should have come to the same conclusion, and almost did:  it noted its "misgivings" with the officers in running the identification, observed that probable cause to arrest or even a reasonable suspicion of any criminal activity was absent, and branded as "specious" the claim that Houser could walk away, but nonetheless affirmed, finding that since the evidence was discovered after he was arrested on the warrant, the discovery was valid.  As I explained at the time, this missed a step that the 10th District caught:  if taking the ID illegally prolongs the detention, then the discovery of the warrant, the arrest, and the search incident to that arrest all go away to live in that fabled land where the trees sprout poisonous fruit.

So what's the upshot of Westover?  The court considered several other factors, such as the presence of the two other police officers on the scene, but it's hard to read the opinion as holding that anytime the police run a person's ID for warrants, that constitutes a detention and requires reasonable suspicion of criminal activity.

That's a significant victory for the dwindling band of fans of the 4th Amendment, because the police do that a lot.  Before this, you basically had to depend on a person having the temerity to tell the cops to go pound salt.  As I pointed out in my post on Houser, decisions of whether a person would feel free to walk away are being made by people who were never in that situation, and never will be.


Recent Entries

  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech