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Reasonable Suspicion – Frisk – “Identification Search”

State v. Bruce E. Black, 2000 WI App 175, 238 Wis.2d 203, 617 N.W.2d 210
For Black: William E. Schmaal, SPD, Madison Appellate

Issue/Holding:

¶1 … When a person provides oral identification to a police officer conducting a Terry stop and request for identification, may the officer perform a limited search for identifying papers when the information provided is not confirmed by police records? We conclude that under State v. Flynn, 92 Wis. 2d 427, 285 N.W.2d 710 (1979), an officer may perform such a search given the present circumstances. The frisk for identification here was limited to a wallet or other repository for identifying papers. The intrusion upon the suspect was minimal and, we are persuaded, outweighed by the officer’s observation of the suspect’s bulging pockets and the officer’s experience with persons who claim not to carry identification when in fact they do. …

Black and Flynn are binding, of course, such that litigation of whether the police may conduct a “Terry-ID search” is futile, at least below the Wisconsin supreme court threshold. But that hardly means that the concept is uncontroversial, or that an effort at its re-litigation ought not be made. See, e.g., People v. Garcia, 145 Cal.App.4th 782 (Cal App No. B187453, 12/14/06) (“nothing in either the letter or spirit of Terry v, Ohio, supra, 392 U.S. l [20 L.Ed. 3d 889, 88 S. Ct. 1868] can be used as a springboard to justify a ‘patdown’ search for identification”).

For authority to the effect “that requests for identification made during a Terry stop are not inherently unreasonable,” see U.S. v. Christian, 356 F. 3d 1103 (9th Cir. No. 02-30185, 1/28/04) (9th Circuit cases “do not preclude police from demanding a suspect’s identification during a Terry stop so long as the request is reasonably related to the detention”). However, this result is suspect, at least to the extent that it requires a connection between stop and request for identification, in light of Larry D. Hiibel v. Sixth Judicial District Court, 03-3554, 542 U.S. __, 6/21/04 (neither fourth nor fifth amendment precludes arrest of a person simply for refusing to provide identification during a stop supported by reasonable suspicion). See also, e.g., U.S. v. Villagrana-Flores, 467 F. 3d 1269 (10th Cir No. 05-4313, 11/7/06) (officer may obtain identity, run warrants check during Terry stop, relying heavily on Hiibel); U.S. v. Brown, 366 F.3d 456 (7th Cir 2004) (“an officer may check an individual’s identification in his wallet during a Terry stop”).

Proviso might be added for police activity, such as a warrant check, occurring after the purpose of a lawful stop has been satisfied — in such an instance, it might be argued that the stop was unnecessarily prolonged, see, e.g., People v. Torres, IL App 1st Dist No. 1-02-2579, 3/19/05.

That said, Hiibel essentially ratifies rather than expands police power in Wisconsin, given our express caselaw authority already permitting an identification search. The more interesting question is whether Hiibel — which authorizes prosecution for obstructing under Nevada law (NRS 171.123(3)) for refusal to provide identification during a Terry stop — somehow expands Wisconsin obstructing law, which has been explicitly construed to not support prosecution for such refusal, at least where refusal doesn’t affect the police investigation in any way. State v. Hamilton, 120 Wis.2d 532, 542, 356 N.W.2d 169 (1984); Henes v. Morrissey, 194 Wis.2d 338, 354-55, 533 N.W.2d 802 (1995). Clearly, a police “demand” for identification during a valid stop, see § 968.24, is now unassailable. But it is something else to say that refusal to comply with a lawful “demand” somehow “obstructed” a police investigation. Obstructing, as construed by Henes, requires that the suspect knowingly give false information, and refusing to comply with a demand for information simply is not the same as giving false information.

But note authority for the idea that identity is not itself suppressible; thus, an illegal stop may not taint the ensuing identification search — see U.S. v. Gudino, 376 F. 3d 997 (9th Cir No. 03-30023, 7/22/04) (“We continue to hold today that the simple fact of who a defendant is cannot be excluded, regardless of the nature of the violation leading to his identity”); U.S. v. Navarro-Diaz, 420 F. 3d 581 (6th Cir. No. 04-3954, 8/18/05) (“conclusion that a defendant’s identity cannot be suppressed comports with the decisions of other courts”). For potentially important embellishment, see U.S. v. Garcia-Beltran, 389 F.3d 864 (9th Cir. 2004) (to effect that, following indisputably illegal arrest, if fingerprints were taken for an “investigatory” purpose, i.e., to link arrestee to criminal activity, then they should be suppressed); subsequent appeal, , 443 F.3d 1126 (9th Cir No. 05-30434, 4/6/06). That is, fingerprint or other identity-evidence isn’t suppressible if taken merely for identification purposes (to verify identity), because evidence of identity is never suppressible; but evidence seized to investigate criminal activity is something else. As to this last point, see, e.g., People v. Lisa G., 23 Cal.Rptr.3d 163 (Cal. App. 4th Dist. No. D044398, 1/10/05) (search of juvenile student’s purse for her ID, so she could be written up for disruptive behavior, unsupported and knife found in purse therefore suppressible — “Mere disruptive behavior does not authorize a school official to rummage through his or her students’ personal belongings”; distinguishable from other “circumstances in which the suspect was legally required to produce identification”). Note holding in subsequent Garcia-Beltran appeal that the defendant’s identity obtained after illegal police action is not suppressible as fruit of the illegality and thus the defendant could simply be ordered to provide another fingerprint (court notes, though, potential split in circuit authority).

There is also significant authority that the police may arrest an individual on an outstanding arrest warrant, following an illegal stop, U.S. v. Johnson, 383 F. 3d 538 (7th Cir. No. 03-2173, 9/2/04) (on the theory that the warrant is an intervening circumstance that provides probable cause to arrest independent of the illegality involving the stop) and U.S. Green, 111 F.3d 515 (7th Cir. 1997) (same: “any taint from this unconstitutional seizure was dissipated by the subsequent legal arrest of Avery pursuant to an outstanding warrant”); State v. Page, 103 P. 3d 454 (Idaho 12/15/04) (same effect: adopting “rule that an outstanding arrest warrant gives the officer independent probable cause to arrest such that, had the officers acted unlawfully, the warrant would constitute an intervening circumstance dissipating the taint of an unlawful seizure”). For a detailed survey, see McBath v. State, 108 P. 3d 241 (Alaska App No. A-8570, 2/18/05) (acknowledging some contrary authority, but following Green, which it terms the “leading federal case on this issue”):

The following rule emerges from these cases: If, during a non-flagrant but illegal stop, the police learn the defendant’s name, and the disclosure of that name leads to the discovery of an outstanding warrant for the defendant’s arrest, and the execution of that warrant leads to the discovery of evidence, the existence of the arrest warrant will be deemed an independent intervening circumstance that dissipates the taint of the initial illegal stop vis-à-vis the evidence discovered as a consequence of a search incident to the execution of the arrest warrant.

That said, McBath recognizes “instances where the intervening discovery of an arrest warrant truly attenuates the link between the initial illegality and the discovery of the incriminating evidence,” citing United States v. Ienco, 182 F.3d 517 (7th Cir. 1999). But, seemingly contrary authorityState v. Bentz, Or App No A124628, 2/21/07:

As noted, the court concluded that merely asking a person’s name does not constitute exploitation. With respect, we disagree. Exploitation occurs when there is a causal connection between police illegality and the subsequent discovery of evidence. State v. Hall, 339 Or 7, 31, 115 P3d 908 (2005). Thus, asking a person’s name constitutes exploitation if the question causes the person to give information that leads the police to evidence. Here, asking defendant his name constituted exploitation of the illegal entry if the question caused defendant to admit the warrant’s existence. Compare id. at 36 (officer’s request for consent to search constituted exploitation because it caused the defendant to consent) with State v. Rodriguez, 317 Or 27, 41, 854 P2d 399 (1993) (because the defendant volunteered his consent to search with no police prompting, there was no exploitation).

Also following Green, but adding a potentially significant, and perhaps easily overlooked, qualifier, U.S. v. Hudson, 6th Cir No. 04-5096, 4/22/05: Green “reasoned that the officers’ incidental discovery of the outstanding warrant” dissipated the taint of the illegal stop (emphasis supplied). Thus,

when the police make an illegal stop for the very purpose of arresting the person stopped, they are thereby exploiting the illegal stop in a manner prohibited by the Fourth Amendment and the evidence obtained in a pat-down of the arrested suspect or in a search incident to the arrest must be suppressed.We agree with the Seventh Circuit that the admissibility of evidence obtained in an illegal stop depends upon the purpose of the stop….

Like analysis, People v. Mitchell, 824 N.E.2d 642 (Ill App 2nd Dist No. 2-03-1107, 3/3/05) (where very purpose of stop — which was unsupported by cause — was to run warrant check: suppression “appears to be the only way to deter the police from randomly stopping citizens for the purpose of running warrant checks”); State v. Soto, 2008 NMCA 32, ¶¶21-27, cert. gr. No. 30,894 (adopting analysis of Mitchell, and rejecting contrary authority); People v. Rodriguez, Cal App No. B186661, 10/10/06 (where police manufacture basis for traffic stop, “flagrancy of the official misconduct” shifts balance in favor of suppression  outweighing fact that extant arrest warrant “was clearly a significant ‘intervening circumstance'”).An increasing number of cases follow Green and McBath. See, e.g., State v. Harding, 2009-Ohio-59, ¶12 (“In light of the existence of an outstanding warrant, a defendant has no reasonable expectation of privacy to be free from arrest and search by the police”); People v. Reese, MI App No. 280001, 10/14/08; Birch v. Commonwealth, KY App No. 2005-CA-001564-MR, 3/17/06; Jacobs v. State, 2006 OK CR 4 (cases cited ¶ 8, n. 15); State v. Frierson, FL SCt No. SC03-1528, 2/9/06; State v. Allen, 222 Or App 71, 191 P.3d 762 (2008).

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