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Old 10-12-2011, 11:27 PM
 
Location: California
2,475 posts, read 2,070,963 times
Reputation: 300

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Quote:
Originally Posted by olecapt View Post
Nah. If they go past Hiibel the language of Hiible makes it pretty clear that it would violate the fourth. Note the courts remarks on the specific nature of the NV statute. And note how it was differentiated from others.

You simply can't write a must present ID Law that does not fail Hiibel or similar reasoning.

Now of course another court may reason differently...but not likely.
But with the passenger they are not going past Hibel, as you state there were no passengers in Hibel, but Hibel did produce the "government interest" precedent. The opinion in Stufflebeam states clearly
Quote:
3. In a case decided after the arrest in this case, the Supreme Court held that a state law "requiring a suspect to disclose his name in the course of a valid Terry stop," and authorizing his arrest for refusal to comply, "did not contravene the guarantees of the Fourth Amendment." Hiibel v. Sixth Jud. Dist. Ct.,542 U.S. 177 (http://www.leagle.com/%0D%0A%09%09%09%09xmlcontentlinks.aspx?gfile=542%2 0U.S.%20177 - broken link), 188-89, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). The Arkansas criminal statutes and rules contain two provisions that fall within this "stop and identify" category. See Ark. R.Crim. P. 3.1; Ark.Code Ann. § 5-71-213(b)(2). However, Harris does not rely on these provisions, nor could he on this record. As Stufflebeam had no legal obligation to provide the information, his refusal to comply with Harris's improper demand did not obstruct a legitimate "governmental function" within the meaning of § 5-54-102(a)(1). In other words, on these facts, the authority conferred by Rule 2.2 did not provide Harris with probable cause to arrest Stufflebeam for a violation of § 5-54-102(a)(1).
An LEO only needs to show "reasonable suspicion", none was provided by Harris to arrest Stufflebeam. All the opinion has done is require the showing by the LEo of "reasonable suspicion" in order to arrest the passenger for failing to identify. The court opinion merely defined/clarified what is needed in order to detain/arrest a passenger - showing reasonable suspicion.
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Old 10-13-2011, 12:05 AM
 
Location: San Antonio, Texas
782 posts, read 1,107,051 times
Reputation: 3173
The title of the post is mis-leading and should have included that this was coming from the UK...Having said that this should tell you that we are not the only country in the world with an illegal immigration problem.
I know that I can never be POTUS because I am not a "natural born citizen". Learned that in grade school.
I agree with OleCapt..it's not about wanting to or not wanting to...deportation is the feds job and there isn't enough money or personnel to deport ALL the illegals...so yes, the feds have to pick their battles as it were and priortize who they deport. The illegals don't care if you know they are illegal or not..thats why they are still hanging out at Home Depot. And NOW they REALLY don't care because we are Occupying Wall Street or whichever city they are occupying this weekend.
Having said all that I support states doing their own deportations of non felons..I know it will never happen but I support the idea..especially here in Arizona. And please don't argue the Constitution with me...As much as you want to maintain Constitutionality on the issue it doesn't work with me..this problem is far too big for that...I say round em up take em south and deal with the fall out later. If they bust a drop house load em up in cattle cars and take em back...they are in the drop houses because they entered the US illegally and are awaiting a final destination...let that destination be back to Mexico.
Whatever the argument is it all boils down to one thing really....the choice was made to enter the US illegally what ever happens happens and it's no-ones fault but the person that made that choice.
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Old 10-13-2011, 06:22 AM
 
47,525 posts, read 69,570,473 times
Reputation: 22474
Quote:
Originally Posted by olecapt View Post
Because we are Americans and it is none of the States business.

this is a long and standard American trait. We do not tell the government anything that they don't have a court order to get.

Why is it that we don't have a national ID card? Because we believe it gives too much power and information to the government.

And it is a very large shame that a large portion of that freedom from the state has been screwed up by the automobile and the willingness of the legislators to use it to subvert the normal view of Americans.

In any world considered by our forefathers driving would have been a right...not a privilege. But the governments of recent times have used driving to create access to the people that was otherwise blocked.
Keep in mind in the time of our forefathers, driving on someone else's property would not have been a right. The whole American Revolution was based on an anti-tax sentiment and small federal government and giving foreigners flooding over the borders free health care, WIC coupons and food stamps was not something they would have gone along with at all.
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Old 10-13-2011, 08:21 AM
 
Location: NW Las Vegas - Lone Mountain
15,756 posts, read 38,129,998 times
Reputation: 2661
Quote:
Originally Posted by Liquid Reigns View Post
But with the passenger they are not going past Hibel, as you state there were no passengers in Hibel, but Hibel did produce the "government interest" precedent. The opinion in Stufflebeam states clearlyAn LEO only needs to show "reasonable suspicion", none was provided by Harris to arrest Stufflebeam. All the opinion has done is require the showing by the LEo of "reasonable suspicion" in order to arrest the passenger for failing to identify. The court opinion merely defined/clarified what is needed in order to detain/arrest a passenger - showing reasonable suspicion.

Hiibel...

They are met by the requirement that a Terry stop be justified at its inception and be “reasonably related in scope to the circumstances which justified” the initial stop. Terry, 392 U.S., at 20. Under those principles, an officer may not arrest a suspect for failure to identify himself if the identification request is not reasonably related to the circumstances justifying the stop. Cf. Hayes v. Florida, 470 U.S. 811, 817
****************************

See also Brown. The suspicion is not a generic one. It must be specific and articuable and related to the initial justification for the Terry stop. Virtually impossible to get that to read on passengers.
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Old 10-13-2011, 08:36 AM
 
9,240 posts, read 8,651,307 times
Reputation: 2225
Quote:
Originally Posted by Chanygirl View Post
The title of the post is mis-leading and should have included that this was coming from the UK...Having said that this should tell you that we are not the only country in the world with an illegal immigration problem.
I know that I can never be POTUS because I am not a "natural born citizen". Learned that in grade school.
I agree with OleCapt..it's not about wanting to or not wanting to...deportation is the feds job and there isn't enough money or personnel to deport ALL the illegals...so yes, the feds have to pick their battles as it were and priortize who they deport. The illegals don't care if you know they are illegal or not..thats why they are still hanging out at Home Depot. And NOW they REALLY don't care because we are Occupying Wall Street or whichever city they are occupying this weekend.
Having said all that I support states doing their own deportations of non felons..I know it will never happen but I support the idea..especially here in Arizona. And please don't argue the Constitution with me...As much as you want to maintain Constitutionality on the issue it doesn't work with me..this problem is far too big for that...I say round em up take em south and deal with the fall out later. If they bust a drop house load em up in cattle cars and take em back...they are in the drop houses because they entered the US illegally and are awaiting a final destination...let that destination be back to Mexico.
Whatever the argument is it all boils down to one thing really....the choice was made to enter the US illegally what ever happens happens and it's no-ones fault but the person that made that choice.
Its cheaper to deport them back home.
They are all law breakers.
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Old 10-13-2011, 08:50 AM
 
Location: California
2,475 posts, read 2,070,963 times
Reputation: 300
Quote:
Originally Posted by olecapt View Post
Hiibel...

They are met by the requirement that a Terry stop be justified at its inception and be “reasonably related in scope to the circumstances which justified” the initial stop. Terry, 392 U.S., at 20. Under those principles, an officer may not arrest a suspect for failure to identify himself if the identification request is not reasonably related to the circumstances justifying the stop. Cf. Hayes v. Florida, 470 U.S. 811, 817
****************************

See also Brown. The suspicion is not a generic one. It must be specific and articuable and related to the initial justification for the Terry stop. Virtually impossible to get that to read on passengers.
Again, Hibel had no passengers, my quote above merely means that the "government interest" precedence set by Hibel means only that the driver is to provide his name.

As for passengers, Stufflebeams case, an LEO must be able to show "reasonable suspicion" in order to arrest for non-compliance based on State Statutes.

All of this is a State's issue though, not Federal all though federally there are certain passed regulations. From Hibel
Quote:
Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.” Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code. See ALI, Model Penal Code, §250.6, Comment 4, pp. 392—393 (1980). The provision, originally designated §250.12, provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.” §250.12 (Tentative Draft No. 13) (1961). In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.
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Old 10-13-2011, 10:16 AM
 
Location: NW Las Vegas - Lone Mountain
15,756 posts, read 38,129,998 times
Reputation: 2661
Quote:
Originally Posted by Liquid Reigns View Post
Again, Hibel had no passengers, my quote above merely means that the "government interest" precedence set by Hibel means only that the driver is to provide his name.
Hiibel had no driver either. But Hiibel sets the requirement for a Terry stop...car or otherwise. The cop must have a specific and articuable suspicion...not a generic one...and it must be consistent with the original cause of the stop. You cannot get passengers included in a traffic stop. Just does not work...as it did not in Stufflebeams case.

Quote:
As for passengers, Stufflebeams case, an LEO must be able to show "reasonable suspicion" in order to arrest for non-compliance based on State Statutes.

All of this is a State's issue though, not Federal all though federally there are certain passed regulations. From Hibel
Yes it is a state issue but the feds will throw it out if it conflicts with the fourth. So that is a federal issue.

And the LEO must show it is related to the original stop and that he has a specific and articuable suspicion.

So you are in non-Terry with passengers. You can ask them anything you want but they need not answer and cannot be arrested for not answering.
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Old 10-13-2011, 10:23 AM
 
9,240 posts, read 8,651,307 times
Reputation: 2225
Quote:
Originally Posted by olecapt View Post
Hiibel had no driver either. But Hiibel sets the requirement for a Terry stop...car or otherwise. The cop must have a specific and articuable suspicion...not a generic one...and it must be consistent with the original cause of the stop. You cannot get passengers included in a traffic stop. Just does not work...as it did not in Stufflebeams case.



Yes it is a state issue but the feds will throw it out if it conflicts with the fourth. So that is a federal issue.

And the LEO must show it is related to the original stop and that he has a specific and articuable suspicion.

So you are in non-Terry with passengers. You can ask them anything you want but they need not answer and cannot be arrested for not answerin
g.
They can detain you if its a crime. You do have a right to a lawyer. But you must be identified eventually.
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Old 10-13-2011, 10:50 AM
 
Location: NW Las Vegas - Lone Mountain
15,756 posts, read 38,129,998 times
Reputation: 2661
Quote:
Originally Posted by All American NYC View Post
They can detain you if its a crime. You do have a right to a lawyer. But you must be identified eventually.
Being a passenger in a traffic stop is very, very hard to escalate to a crime. And no you need not be identified at all....unless they have probable cause and get a warrant. That is in the Constitution. You remember the Constitution don't you?
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Old 10-13-2011, 10:55 AM
 
387 posts, read 590,085 times
Reputation: 88
Quote:
Originally Posted by All American NYC View Post
Thats where I would reform the law.
Checks and balances are essentials for a democratic country you can't make a law that's one sided the rights of immigrants have also to be taken into account or there will be millions of habeas corpus petitions filed by ACLU on immigrants behalf
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