INDEPENDENT
RESEARCH
THE RIGHT TO ANONYMITY
For
Professor Benson
By
Chris Byrd
T e x a s T e c h S c h o o l of L a w
M a y 1 0 , 1984
(MOM
Jim
and
friends
Mary Bauer
at a r e s t a u r a n t
h o m e in S p e n c e r ,
to walk
Their
They
gained
"search
brought
jailers,
At about
lawyers,
about
and e x p e r i e n c e s .
prisoners,
local
and
and told
produced
house and demand
identification.
Norris their
to protect
them
identification.
Mr.
Norris placed
his
which
under South
housekeys,
car,
their
a reason,
pointed
the
loitering
anywhere
attempting
of
refused
to
their
persistent
satis-
until
to enter
they
their
the B a u e r s up against the hood
w a s in t h e B a u e r s '
wrists behind
Dakota's
the indignation
but
the Bauers they were not going
own h o u s e , D e p u t y
handcuffed
The Bauers
After
was
stop
b e c a u s e of
to
their
front
backs,
law whch
yard,
provides
:
of
tightly
and arrested
Any
person who intentionally
causes
serious
p u b l i c c o n v e n i e n c e , a n n o y a n c e , or a l a r m t o a n y
o t h e r p e r s o n , or c r e a t e s a r i s k t h e r e o f b y :
00002
a
them-
the public's safety, was not
some identification.
patrol
were
conditions,
Norris decided
by Deputy Norris without
fied
They
bai1-bondsmen.
jail
been accosted
Deputy, attempting
decided
j u s t i c e s y s t e m of S o u t h D a k o t a
Deputy Sheriff
from their
showed
their
sub-
having
and
-from
home ultimately
and offended
house
mile
a n d t h e e x p e n s e of d e f e n d i n g
into the
when
any
with
their
who was upset
produce
1979
and
Bauer,
to
14,
11:00 p.m. they
to walk
k n o w l e d g e of
to arrest,"
1
prosecution.
adventure
a block
a b o u t one-hal-f
to new aquaintances
incident
Their
of J u l y
the road running past the restaurant
first-hand
selves against
about
located
spontaneous decision
jected them both
to meet
the evening
South Dakota.
home along
house.
forced
spent
them
(5)
L o i t e r i n g or w a n d e r i n g
upon the streets
or f r o m p l a c e t o p l a c e w i t h o u t a p p a r e n t r e a s o n
or
b u s i n e s s a n d w h o re-fuses t o i d e n t i f y
himself
and
to account for
his
presence
when
requested by any law enforcement officer to do
so,
if t h e s u r r o u n d i n g c i r c u m s t a n c e s a r e s u c h
as
to
indicate to a reasonable
person
that
public safety d e m a n d s such identification; is
guilty
of
disorderly
conduct.
Disorderly
conduct is a Class 2 misdemeanor.3
Deputy
Norris testified
regarding
anything
Bauers
that there were no
regarding
their
possible
were not suspected
of
On
an
"unlawful
November
13,
titute working
of a n y c r i m e —
and
engage
requested
Officer
to
1975,
in r e f u s i n g
to
The
respond
to
O f f i c e r s J e n n i n g s and P a r a m o r e
investigated
a complaint
set up s u r v e i l l a n c e
a man, Gilbert
and walk away.
him to identify
Jennings then placed
identify himself
in a n y c r i m e .
they simply failed
about
steer
the
pros-
in t h e i r
patrol
a Ms.
Sanchez
The officers saw the
man
The o f f i c e r s drove up to t h e
man
himself
do.
which he refused
the man under
to a p o l i c e officer
arrest for his
in v i o l a t i o n
of
5
3 8 . 0 2 of t h e T e x a s P e n a l
of
a
Spring, approach
in a s h o r t c o n v e r s a t i o n .
shake his head
and
however,
4
in a n a r e a a n d
They observed
involvement
Bauers
zone".
Houston Police Department
car.
bulletins
c r i m e s in t h e a r e a a n d t h a t h e d i d n o t a s k t h e
to Deputy Norris' demands,
clear
police
Code which
reads as
follows:
F a i l u r e t o I d e n t i f y a s W i t n e s s (a) A p e r s o n
c o m m i t s a n o f f e n s e if h e i n t e n t i o n a l l y r e f u s e s
to
report
o r g i v e s f a l s e r e p o r t of h i s
name
and
residence address to a peace officer
who
has
lawfully
stopped him and
requested
the
information.
(b)
An o f f e n s e under t h i s section is a Class C misdemeanor.6
ftft0«3
to
refusal
section
Edward
Lawson, a black
was crossing
business consultant
a busy San Diego
intersection
asked by a police officer
to show
"Why
Lawson
are
you
convicted
spent
f i v e d a y s in
6:00
p.m.
fication.
The
was
third
officer
released
encounter
standing
on a s i d e w a l k
to produce
produced
was looking
near
identification.
his identification
Between
March,
for a one-legged
and
was
1975 and J a n u a r y ,
fifteen
times, prosecuted
section
647(e)
refused
8
arrested.
1977 Lawson
t w i c e , and convicted
of t h e C a l i f o r n i a
Penal
identi-
but
man.
Lawson's
when
was
around
white
and w a s
initially
and
restaurant
identification.
came
and
statute
came into the
a freeway downtown
He
arrested
in a r e s t a u r a n t
the San Diego police
was
responded,
t o c o m e o u t s i d e and show
after producing
with
He
He
stop-and-identify
was eating
and his friend
at 3 : 0 0 a . m .
subsequently
A San Diego p o l i c e officer
asked Lawson
Lawson
was
California's
7
jail.
occasion, Lawson
entreprenuer
identification.
of v i o l a t i n g
On a n o t h e r
and
asking?"
and
he
was
requested
eventually
arrested
once for
Code which
violating
9
provides:
Every
p e r s o n w h o c o m m i t s a n y of t h e f o l l o w i n g
a c t s i s g u i l t y of d i s o r d e r l y
conduct,
misdemeanor:
....
(e) W h o l o i t e r s or w a n d e r s u p o n
the
streets
or f r o m p l a c e t o
place
without
a p p a r e n t r e a s o n or b u s i n e s s and w h o r e f u s e s t o
identify
himself
and
to
account
for
his
presence
when r e q u e s t e d by any p e a c e
officer
s o t o d o , if t h e s u r r o u n d i n g c i r c u m s t a n c e s a r e
such
as to indicate to a r e a s o n a b l e man
that
the
public
safety
demands
such
indentification.10
At
1 2 : 4 5 in t h e a f t e r n o o n
police officers observed
of D e c e m b e r
two men walking
00flfi4
9,1977,
t w o El
Paso
away from one another
in
an a l l e y .
The officers entered
stopped
one
explain
what he was doing
tioned.
man,
t h e a l l e y , g o t o u t of t h e i r
and r e q u e s t e d
there.
The officers testified
in t h e a r e a b e f o r e a n d
testified
that
him to identify
"looked
The other
suspicious."
suspected
that
they did not have any reason
The
man,
refused
arrested
Code.
While being
was then
charged
searched.
of
3 8 . 0 2 of t h e
t o jail h e i d e n t i f i e d
with violating
Subsequently,
and
he
section
was
been
seen
further
in
and
armed.
asserted
the
handcuffed,
Texas
Penal
himself.
3 8 . 0 2 , b o o k e d , and
convicted
to
ques-
of a n y m i s c o n d u c t
He was frisked,
section
transported
not
The officers
to identify himself
for violation
and
to believe that he was
officers had no right to stop him.
and
man was
that the man had never
the man was not
Brown,
himself
car,
the
He
strip-
El
Paso
11
Municipal
There
given
Court
are countless
the draconian
remain
silent
when stopped
to
and fined $ 4 5 . 0 0 plus court
costs.
cases such as these when
c h o i c e of e i t h e r
and relinquishing
exercising
and
forgoing
their
their
right
their right not to be
b y p o l i c e o n t h e b a s i s of s u s p i c i o n
be arrested
individuals
constitutional
to
arrested
or c h o o s i n g
right
are
to
not
remain
si 1 e n t .
The Bauers, Gilbert
arrested
without
they believed
amenities,
lieved
Spring, Edward
L a w s o n , and
p r o b a b l e c a u s e of c o m m i t t i n g
that they enjoyed
more specifically,
t h a t t h e p r i v a c i e s of
a s t h e r i g h t o-f l o c o m o t i o n
—
as United
Brown were
any crime
life entitled
because
States citizens
the right to anonymity.
certain
They
them to amenities
to do that which may lead to
0f!f>05
all
besuch
one's
business
or p l e a s u r e w i t h o u t
lieved,
they
as
may
with others.
d i d t h e p i o n e e r s a n d f o u n d e r s of o u r
wander
from place to
without any apparent
did
interfering
direction
place
country,
throughout
or p u r p o s e
have
"Woody"
been
Guthrie,
One's pursuit
manner,
by men such
Walt Witman,
of h a p p i n e s s ,
should be protected
conduct.
good,
harbored
The Constitution
for t h e p r o t e c t i o n
lowest.
No
Vachel
that
country
as
they
rights.
as Henry David
Such
Thoreau,
others.
if c o n d u c t e d
in a d e c e n t a n d
orderly
by the law,
as well
all
Lindsay,
be-
and many
and the
of
the
in m i n d a s l o n g
not v i o l a t e a n y law or t r a n s g r e s s on o t h e r s *
notions
They
laws are framed
as one's
safe
for t h e
public
citizens from the highest
one may be restrained
to
the
of h i s l i b e r t y u n l e s s h e
has
12
transgressed
The
to
some
law.
"right to life
" as created
the most comprehensive
by the C o n s t i t u t i o n
of r i g h t s a n d o n e m o s t v a l u e d
lized m a n , the r i g h t to b e let a l o n e .
be let a l o n e
is t h e right
certain
private
advance
the notion
mous
paper
presents.
proposed
all
here
This
exists
The
death,
paper
outside
good
t h i s is not t h e
has committed
does not purport
is
to be enjoyed
by
by law but rather
advances the notion
Cfiono
to exist
than remaining
to declare that
this
which
and prudent man to
a crime other
to
anony-
proposition
at b i r t h
to
with
exist
to remain
t h e r e i s a s t a t e of f a c t s f o u n d
intelligent
civi-
interference
arguments
has the right
is created
by
rise
O n e a s p e c t of t h e r i g h t
s c o p e of t h e r i g h t t o a n o n y m i t y
induce a reasonably
that a person
While
that a person
is o n e which
persons until
would
not to suffer
activities.
from birth until
gives
such a right
which
believe
silent.
already
that regardless
of
suspicion
until
of c r i m e a p e r s o n
probable
anonymity
cause
should
13
has the right
exists.
never
to
remain
T h e e x e r c i s e of
b e t h e b a s i s of
anonymous
this
right
to
a r r e s t or d e p r i v a t i o n
of
1iberti es.
The proposd right to anonymity has never
sed
by
the Supreme Court but
Spring,
for.
Lawson,
and Brown
it
directly
is t h e right which
sought to exercise
been
addres-
the
Bauers,
and w e r e
arrested
A t t h e v e r y m o s t , o n l y s o m e s e m b l a n c e of s u s p i c i o n
in e a c h of t h e s e c a s e s .
sufficient
There was never
to find probable cause —
yet,
a s c i n t i l l a of
existed
evidence
the arrests were
still
made.
Bauer, Spring, Lawson, and Brown
cases.
In
additional
year
loitering
are many compelling
right
deprive
common
to anonymity and
citizens
of
law a s e s s e n t i a l
free men.
formal
for the abolishment
allowing
arbitrary
people arrested
in
long
to the orderly pursuit
tal r i g h t w h i c h m u s t b e p r o t e c t e d
The
same
by t h e
a r g u m e n t s for formal
The right to anonymity
were
(The a r r e s t s
examination
14
charges.)
o n e of t h e p r i v i l e g e s
and
There
alone.
subjects one to detention,
There
the
"suspicion"
158,870 a r r e s t s for r o b b e r y .
and then r e l e a s e w i t h o u t
vagrancy
and curfew violations.
36,200 arrests upon
there were
suspicion
isolated
1975 the p o l i c e m a d e 4 0 , 0 0 0 a r r e s t s for
146,400 arrests for
an
are by no means
for
police,
recognition
of
laws
which
recognized
of h a p p i n e s s
must be considered
a
and not
with
interfered
at
by
fundamenby
laws
and c a p r i c i o u s a p p l i c a t i o n .
If t h e n u m b e r
1975 for
loitering,
fai1ure-to-identify,
0ff007
of
or
of
vagrancy
is any indication
exercising
of t h e n u m b e r
t h e i r p r i v a c i e s of
to abolish
these
life, then
laws must be considered
t r o p h i c e f f e c t s o n t h e l i v e s of
When
one is a r r e s t e d
tering,
for
the FBI,
begin
those
person
who has never been
adversarial
tion
confrontation
of a m i n o r
rant,
he has incurred
or p o t e n t i a l
dismissed
smoke,
lifelong
and
with
economic
is fire."
fai1ure-to-identify,
For this reason
if
the
harm.
excepa
His
"where
a
an
vag-
employer
disco-
he may be released
and
there
is
alone many victims
of
laws are subjected
employers,
later h a r a s s them for exercising
to
conse-
experienced
for b e i n g
The police may scrutinise
the right
lifelong
<with
many believe that
among
including
if n o t i m m e d i a t e l y
subsequently
loi-
For e x a m p l e ,
is a r r e s t e d
and personal
stigma and discrimination
to be let a l o n e —
agencies,
law e n f o r c e m e n t
l o i t e r i n g , or s t o p - a n d - i d e n t i f y
and n e i g h b o r s .
castas-
arrested.
ultimately,
prosecution,
b e c a u s e of t h e i r
and has never
violation)
Even though
from
there
vagrancy,
arrested
employers will
ver h i s r e c o r d .
cies,
traffic
reasons
This creates
quences and damage to the individual
for
the compelling
law enforcement
to compile records.
today
imprisoned.
suspicion,
or vagrancy n u m e r o u s
incarcerated
a nascent
15
anonymity.
credit
their
to a
agen-
activities
fundamental
right
16
Davidson
Vj. Dill.
arrest alone.
loitering
printed,
personal
logged
i s o n e e x a m p l e of t h e d r a c o n i a n
On July 2 5 ,
in v i o l a t i o n
photographed,
of
with
the Denver
1968 Dorothy Davidson
was arrested
a Denver
She was
ordinance.
strip-searched,
statistics, which
effects
created
and required
a criminal
Police Department
OOOOg
to
for
fingerfurnish
identification
and the F.B.I.
of
file
Prior
to
her
loitering
violation
county
arrest she had never been
of
any
court
never
laws.
obtain
all
She was prosecuted
jury six m o n t h s
again boast
later.
of a n a r r e s t
Court recognized
ordered
a reversal
or a r r e s t e d
and
Realizing
her
the invasion
of t h e t r i a l
of
acquitted
that
free lifestyle,
of t h e r e c o r d s r e v e a l i n g
Supreme
accused
arrest.
The
Davidson's
court's dismissal
of h e r
reimbursed
expenses
in
personal
and
Many states do not afford
very many people arrested
loitering
after
statutes
the
permanent
the
loitering,
merely
England,
and
the
fall
judicial
reasons,
these
vagrant was one who was
charity
rather
beg
m e a n s of
19
than punishment."
in
and attempted
order
The
to alleviate
to control
and
prey
to
interfere
vagrancy,
laws
are
vagrancy.
In
an o b j e c t
government
the
prevent
"incapacitated
support,
the manner
nwrig
These
of
or
clean
types:
theory
do
slate
economy
statutes.
of t h e o l d E n g l i s h
or d i s e a s e and w i t h o u t
charity
the
into three
stop-and-identify
original
her
vagrancy,
instruments which have been used to
derivations
to
to wipe
If f o r n o o t h e r
accident
vagrants
fai1ure-to-identify,
to preserve
right to anonymity
never
regaining
of t h e l i v e s of t h o s e w h o f a l l
IS
enforcement.
The legislative
claims
was
tainting
this gestapo type
with
under
arrests.
laws should be abolished
and
procedures to expunge records nor
pursue the matter
these unlawful
lost
to
Colorado
privacy
Davidson
a
could
she attempted
expungement.
her
time
17
integrity.
by
she
to her arrest r e c o r d s and their
for
for
burden
and place
by
of
encouraged
of
in
public
which
they
solicited
wander
was
alms.
The vagrant
about the countryside but to remain
best
known,
•finally a s s u m e d
person
to
One
or w a s b o r n .
responsibi 1ity by requiring
was labeled
imprisoned.
The
a vagrant
imprisonment
vagrants were less morally
nonvagrants,
and
It w o u l d
bond
However,
public
some
restrained
a branded
not
have
vagrant
been
had
in E n g l a n d ,
a friend
The
penniless
his
life
post
labeled
a
unless
was
what
their
than
isola-
afford
at
bond was
conceivable
were
bond
to
all.
little money he
It i s
money posted
that
crimes
vagrant
who were penniless,
and friendless vagrant
persist
bond
vagrant who could
status.
the
on a p r e s u m p t i o n
In e s s e n c e , p o s t i n g
or r e l a t i v e with
imprisoned
not
loose"
was
laws which
from committing
to spend
jail.
to remove the vagrancy
until
was based
seem that a branded
should
vagrants
and could
government
This
safety therefore demanded
l e f t s i m p l y t o s t a y o u t of
enough
conduct.
to
dwelled,
the "idle and
o f t h e p u n i t i v e n a t u r e of v a g r a n c y
who
tion.
lawful
not
where he last
In 1 7 0 4 t h e E n g l i s h
post bond to ensure
beginning
20
today.
post
was also encouraged
had
not
that
imprisoned
to free
them.
may have spent the rest
a responsible
relative
of
could
be
21
found.
This antiquated
today can
indefinitely.
stop
and
female,
still
exists.
just as easily be restrained
even
record
notion
identify
liberties we
or q u a s h e d
statute has recently
remained
D o e in L u b b o c k ,
anonymous,
been
applied
Texas.
was arrested
OftOtO
enjoy
temporarily
O n e e x a m p l e of h o w t h e T e x a s s e c t i o n
c a s e of B a r b a r a
who
The
is
In e a r l y
by Lubbock
or
38.02
the
1982,
no
a
police
officers
Barbara
at
a
truck
Doe was observed
and w a s a p p r o a c h e d
exchange
than
cised
right
her
until
sheltering
identity.
failing
to
herself
suspected
Because Barbara
incarcerated
event happened.
in
Doe
exer-
thirteen
The
she
held
who
authoidenti-
something
She tenaciously
in
any
attorney
until
"digging
of
for
of a n
winds
freedom
a w r i t of h a b e a s c o r p u s .
or t h e y w e r e s u c c e s s f u l
Neither
her
she was imprisoned
to keep her
herself.
from the winter
She was offered
to identify.
her release with
herself
identify
She was not ever
to anonymity,
rities were determined
her.
failing
the matter came to the attention
negotiated
fied
for
by the police.
for her
crime other
days
stop
up"
on t o
T-n
on
her
jtLjm
right to anonymity
Today
even
it is c o m m o n p l a c e
sanctions
for
unlike the ancient
a s o b j e c t s of c h a r i t y .
Until
as she was escorted
vagrancy
1961 t h e C a l i f o r n i a
Penal
town.
laws to impose
or o r i g i n a l
California's
o u t of
laws which
vagrancy
Code section
law
criminal
saw
vagrants
is o n e
example.
647.6
stated:
Every person who wanders about the streets
at
late
o r u n u s u a l h o u r s of n i g h t ,
without
any
visible
or lawful b u s i n e s s . . .
i^s a
vagrant,
and
i s p u n i s h a b l e b y a f i n e of n o t
exceeding
five hundred dollars ($500),
and by i m p r i s o n ment
in
the
c o u n t y jail not
exceeding
six
months,
or b o t h s u c h f i n e s and i m p r i s o n m e n t . 2 3
(emphasis added)
Several
nances
Uniform
s t a t e s and m u n i c i p a l i t i e s
in t h e c r i m i n a l
to identify
Failure
other
to
himself
codes requiring
to a peace officer
comply
a lawfully
stopped
if r e q u e s t e d
amounts to misdemeanor
24
Arrest Act,
failure to identify
(\m\ i
h a v e s t a t u t e s or
offenses.
to do
ordiperson
so.
Under
is not p u n i s h a b l e
the
as
a
misdemeanor,
but
any
for
suspect
25
i denti ty.
it d o e s a l l o w
reasons
"show me your
Their
procedure"
is the
remain
is the p r o c e d u r e
which they carefully
that
a r e o u t of t h e o r d i n a r y .
very familiar
which
authority
thereby
criminal
patrol
or
officers*
job m u c h
officer's
compelled
questions.
circumstances
on
their
circumstances
of a r r e s t
easier
cause which
to
events
beat
to
any-
incongruous.
the incongruous
or
to
to
event
catch
certainly
when
The
officer
because the officer
It i s m u c h
among
the
is a l l e r t e d
it h a s h a p p e n e d
threat
than probable
noteworthy
"incongruity
the police
investigate
easier
under
others
thread
The
or
This authority
resolve extraordinary
are
e v e n t s and
a crime before
his
o f f i c e r s u s e in
from the norm
before he gets away.
readily
them
stop
many
The police officer
normal
citizen
and
investigate persons and
by these s t a t u t e s allow
stop the incongruous
and
with
is a deviation
given
statutes
procedure".
question
divulge
The common
police patrol
under
thing
intact.
"incongruity
work
becomes
papers"
and
to
proponents have advanced
why they should
these reasons
to detain
u p t o t w o h o u r s if u n w i l l i n g
What purpose do these
like them serve?
an o f f i c e r
the
makes
can
the
more
the parties
respond
show
to
to
the
extraordinary
would be the
alternative
26
if t h e s e s t a t u t e s d i d n o t
The
"incongruity
ensure public
safety
exist.
procedure"
not only
for t h e b e n e f i t
operates
of t h e p u b l i c
also operates to the detriment
of
in
that one's right
t h e n a m e of p u b l i c
taken
away
saftety
when probable cause
to
further
as a whole
the incongruous citizen.
is absent.
OflftlS
to
It
anonymity
Historically
but
is
is
when
legislative
works have
jeopardized
courts
have
against
t h e d e g r e e o-f t r e s p a s s o r
Such
has
balanced
been
the
constitutional
interests protected
intrusion
the case with the right
rights,
by
the
statutes
upon civil
to
the
liberties.
anonymity
which
has
27
o-ften f a l l e n p r e y
Common
to the
application.
statutes
vagrancy
and
enactments
that their
early
were
illegally
ing,
over
surfaced
as
theories
are
collectively
Five
distinct
individual
identify
impermissibly
defendant
the right
the
First,
locomotion,
violate
upon
-for
courts
in
Many
o-f
the
courts
on
the
the
judiciary
o-f v a g r a n c y ,
loiter-
has developed
several
is no s i n g l e t h e o r y
among
the
are used
which
courts, but
often
either
has
several
alone
or
unconstitutional.
challenges
vagrancy,
the defendant
these
not to s p e a k .
statutes
laws
with
infringe upon
can attack
m e n t r i g h t s of
and
constitutional
confronted
laws.
view
today
to find these
and
them.
There
prevailing
viable
called
28
l a w s in g e n e r a l
the years.
a
by the
the constitutionality
and s t o p - a n d - i d e n t i f y
theories
the American
century.
-found i n v a l i d
ambiguity
law d e n o u n c i n g
among
twentieth
to make the laws by interpreting
Case
loitering,
because they were too uncertain
This was the reaction
late nineteenth
ground
test".
l a w c o u r t s re-fused t o en-force v a g r a n c y ,
stop-and-identi-fy
the
"balancing
his right
are available
loitering,
can assert
of p r i v a c y .
or
that
these
Secondly,
guarantees
Oftftia
provided
may
also argue
under
the
laws
the
Amend-
free association,
Third, the defendant
any
stop-and-
l a w s a s v i o l a t i v e of h i s F i r s t
free expression,
to
and
that
Fourth
167301
Amendment
o-f -freedom f r o m u n r e a s o n a b l e
warrantless
dant
arrests without
can contend
incrimination
vagrancy,
vagueness
is
and
to privacy.
notion
that
is older
as old
as the common
highlighted
the
He
protected
one from
"property".
and
that
invasions
of
than bodily
damnum
injury.
would
argued
that the common
determine
to what
extent
be communicated
to be
one's
tangi-
intangible
enterprise,
of
point
pain
that
the
in
the
and
injury
was
31
1976.
right
to
emotions
"one's self"
a man's house
and
suf-
This concept
1983 passed
that
soli-
to the
mental
sentiments,
let
life"
amount to legal
The right to
law concept
Brandeis
the pleasure
law a f f o r d s one
his thoughts,
to others.
the common
section
a
to
modern
more
is
principle
,
i n t o an
even
of
specific
It
"right
as a b a s i s for c o m p e n s a t i o n .
Brandeis
to
through
inflict
absque injuria
by the
protected
for
concepts
"right
Brandeis believed
of 4 2 U . S . C .
analogous
and
inventions,
the thrust
shall
the
life evolved
that
could
that
Privacy
would become more treasured
such
argued
It i s a
30
original
battery, restraint,
upon
and be r e c o g n i z e d
to
what he called
and
self
its penumbras.
of R i g h t s .
that the
defen-
statutes are void
29
and due p r o c e s s .
is not formed
In t h e B i g h t
hypothesized
privacy
from
be
law.
advancement,
tude
to
than the Bill
be
the
and
against
1890 fundamental
of R i g h t s or
The right to enjoy
He
civilisation
fering
Bill
contemplated
ble property.
in
This concept
the evolution
alone."
distress
articulated
Fourthly,
it m a y
the Sixth Amendment
Brandeis
in
Finally,
seizures
privilege
and s t o p - a n d - i d e n t i f y
violate
guarantees
cause.
the Fifth Amendment
violated.
loitering,
Louis D.
the right
that
probable
s e a r c h e s and
is
is
his
castle.
which
This
is being
concept
is at the heart
32
litigated today.
The right to privacy
perpetually
the
sented
Justice Brandeis continued
of t h e p r o t e c t e d
from the Court's refusal
si o n of F o u r t h
to
anonymity
i s o n e o-f t h e p r i v a c i e s o-f li-fe w h i c h
developed.
development
o-f t h e r i g h t
Amendment
rights
p r i v a c i e s of
to
in O ^ m s t e a d
influence
life when
to treat wiretapping
has
he
dis-
a s an
inva-
vUnited
States:
...
The
m a k e r s of o u r C o n s t i t u t i o n u n d e r t o o k
to s e c u r e c o n d i t i o n s f a v o r a b l e to t h e
pursuit
of
happiness.
They recognized the
significances
of
man's
spiritual
nature,
of
his
feelings,
and
of h i s i n t e l 1 e c t . . . . T h e y
confered, as against the Government, the right to
be
l e t a l o n e — t h e r i g h t m o s t c o m p r e h e n s i v e of
r i g h t s and the right most valued by
civilized
man."34
Although
right
B r a n d e i s did not carry the day,
of
privacy was a fundamental
own, without
gained
t h e s u p p o r t of
acceptance
later.
t h e Bill
This
his notions
liberty which
stood
of R i g h t s a n d
its
of p r i v a c y .
through
creates
guarded
concept
by
due
process.
to be distinguished
the
on
its
penumbras,
is not to say that t h e Bill
Rights does not create a right
its various guarantees
that
The Bill
" z o n e s of
The penumbra
right
from Brandeis'
of
of
Rights
protection"
of
privacy
is
a
35
right.
fundamental
36
Justice Harlan
r i g h t of p r i v a c y
in
Pge
in h i s d i s s e n t .
Process Clause protected
cifically
"basic
enumerated
liberties"
of R i g h t s .
UHman
"basic
in t h e B i l l
must be placed
Any statute
invading
s p o k e of t h e
Harlan
believed
liberties"
other
fundamental
that
than
the
those
of R i g h t s .
He felt that
on a h i g h e r
plane
these
Due
than
these
the
liberties must pass
spe-
Bill
the
"strict
scrutiny"
relationship"
Harlan
constitutional
test
commonly
test
instead
afforded
so fundamental
that
the
"rational
to Due Process
b e l i e v e d , as did B r a n d e i s , that
something
of
violations.
t h e i n t e g r i t y of
it m u s t d r a w
life
its protection
is
from
37
more than the principles
The fundamental
penumbra
again
privacy
r i g h t s of
by Justice Boldberg
38
Justice
of
the Bill
teenth
protected
r i g h t s and
of R i g h t s .
is not confined
stated
makes the first
eight
believed
called
by
James
According
to Goldberg,
rights
its
amendments.
conclude
it
not
To carry this notion
Fourteenth
before the Bill
Amendment.
although
0W16
the
Four-
expressing
" f r a m e r s of
e x i s3 t9
the
rights,
alongside
and the
for
principles
his
support.
protects other
be
denied
listed
a step
of R i g h t s a n d t h e
The strict
terms
amendments.
author,
should
and
protects
fundamental
t h a t t h e r e e x i s t s a r i g h t of p r i v a c y
existed
liberty
which
the Ninth Amendment
that
Griswol.d
amendments
the Ninth Amendment
Madison,
in
to the specific
infringements,
simply because they were not specifically
eight
of
that
the
Justice Warren
to the States, the
in t h e f i r s t e i g h t
from
articulated
opinion
there were additional
upon
harbored
personal
the concept
Goldberg
the rights articulated
mental
that
from governmental
Goldberg
Constitution.
of R i g h t s , w a s
joined by Chief
rights applicable
Constitution"
in t h e
in h i s c o n c u r r i n g
stated
Amendment
fundamental
the Bill
Goldberg,
Brennan,
personal
granted
r i g h t of p r i v a c y , a s d i s t i n g u i s h e d
Connecticut.
those
explicitly
funda-
protection
among
the
first
further, one
would
so fundamental
adoption
fundamentalist
that
of
the
approach,
with
the Ninth Amendment's
been
advanced
to
support,
to the right
halt governmental
o-f p r i v a c y
i n t r u s i o n s o-f
has
never
liberty
but
40
should
not continue
in a s t a t e of
When the Supreme Court
has
called
Douglas
"that
the specific
formed
them
has protected
the penumbra
in G r i s w o l d
bras,
of
upon
guarantees
right
Amendments creating
The penumbra
the Bill
Amendment
t h e Bill
added to the confussion
privacy.
The
defendants
attacking
two
upon
penumbra
and seemingly
merger
loitering,
theory
Court
concept
ment.
governor
would
of
To
be harder
right
not
and
this end,
Amendment
on
for
be denied
Amendment
police actions to tred upon
Amendment
would
he
Fourth,
of
breath,
privacy
as these
the
be
have
merged
from
its
of
by
different
it
calls
protection.
more
fundamental
Fourteenth
Amend-
may act as a
right
of
allow the right
as long as d u e process was observed.
Of if) 1?
when
because
to apply a
the Fourteenth
source
stop-and-identify
support
more palatable
pressed
give
of t h e t w o r i g h t s
liberty to the states without the
because the Fourteenth
to
is much
the
Third,
such
penum
that help
Douglas
a
r i g h t s of p r i v a c y s h o u l d
vagrancy,
suggests
In t h e s a m e
Statements
d u e p r o c e s s of t h e F o u r t e e n t h
The
by
it
Justice
have
concerning
with
statutes because the two rights draw their
42
sources.
The
of R i g h t s
the penumbras.
of R i g h t s .
by
theory
in w i t h t h e F i r s t ,
that the Court was dealing
than
first advanced
of p r i v a c y w a s e x a s p e r a t e d
and Fifth
older
t h e r i g h t of p r i v a c y ,
The confusion
the Ninth
stated
of
neglect."
by emanations from those guarantees
41
included
he
theory
for s u p p o r t .
life and substance."
the
"benign
mere
privacy
of
privacy
This
concept
seems contrary
to Brandeis'
beliefs.
43
The
the
right
of p r i v a c y w a s a c k n o w l e d g e d
Supreme
Court
and-identify
privacy
statute.
should
officer, who
suspend
no longer
be revocable
its enjoyment."
The
court
convicted
costs for violating
appealed
38.02
facially
Fifth
Amendmemt's
safeguard
The
court
right
the
afforded
stopto
any
police
itself, chooses
the statute to be
of
and
fined
him
3 8 . 0 2 of t h e T e x a s P e n a l
at Law affirmed
and
his
to
uncon-
Court which
contrary
the privacy
It s h o u l d
of
security
the amendments
be noted
language but
and
interest
officials.
the
or
pro-
penumbra
that the Spring
incorrectly
section
Fourth
that the statute violated
by the interplay
Code.
found
to the
and
$100
conviction.
i n v a s i o n s by g o v e r n m e n t
also stated
theory
Spring
District
arbitrary
of p r i v a c y .
penumbra
Court
unconstitutional
against
tection
held
a
"The right
a t t h e w h i m of
Gilbert
section
to Federal
of c i t i z e n s
Spring
from
by
vague.
trial
then
stated,
law e n f o r c e m e n t
The court
The Harris County Criminal
He
and w a s p r o t e c t e d
T h e Whit.! c o u r t
in t h e n a m e of
44
stitutionally
plus
of W a s h i n g t o n
in S t a t e v ^ W h i t e
court
referred
used
directly
45
to J u s t i c e B r a n d e i s ' right
There
of
have
their
are numerous cases
proposed
struck
rights.
arguments
down
The
are
less confused
t o b e l e t a l o n e of
involving
statutes depriving
right to anonymity.
the statutes
cases
lacking
are few
Qimstead.
V e r y f e w of
these
b e c a u s e of d e p r i v a t i o n
in n u m b e r
in c o n t e n t
not because
citizens
cases
of
privacy
the
privacy
but because more palatable
arguments are available. Notwithstanding
MM 8
this
and
fact,
t h e -fundamental
penumbra
right to privacy
theory should
to
strike
46
statute.
down
Perhaps
a
begin
is
with
to salute the flag
the First
flag
Rights which
left
and
to public
48
mind."
attempting
against
The Court
v._
requiring
as
viola-
"To sustain
to say that
to speak
authorities to compel
must
47
Barnette
from school
stated,
we are required
the
This analysis
a state statute
or b e e x p e l l e d
the
stop-and-identify
of E d u c a t i o n
down
o-f
stop-and-identify
advance
guards the individual's right
it o p e n
n o t on h i s
struck
Amendment.
salute
to
argument.
State Board
children
or
loitering,
the First Amendment
the Supreme Court
compulsory
argument
of v a g r a n c y ,
West Virginia
by a d e f e n d a n t
loitering,
more attractive
wherein
t i v e of
be advanced
any vagrancy,
constitutionality
statutes
both
and t h e right to p r i v a c y
a
the
Bill
his own
him to utter
of
mind,
what
is
49
W9°1§Y Yi.
ment
grounds,
cial
motor
state motto,
the Court
a New Hampshire
vehicles
protected
action
includes both
refrain
from
and
speaking
Qf
loaf,
Yi. A n d u h a
The Court
by the First
the right to speak
50
at a l l . "
the Ninth
51
that
places.
Court
stated,
Amendment
freely
guarantees
Circuit
recognised
or i d l e in p u b l i c
on First
and
a constitutional
The Ninth
against
the
in
of
of
state
the right
right
Circuit
with
"The right
the freedom
of A p p e a l s
Amend-
noncommer-
license plates embossed
the First Amendment
association,
down,
statute requiring
" L i v e F r e e or D i e . "
f r e e d o m of t h o u g h t
Although
to bear
struck
to
speech
Territory
to
struck
loiter,
down
a
statute
-forbidding
habitual
public places by calling
"to do what he will
not
CinimicalU
loafing,
upon
and when
to himself
loitering,
or i d l i n g
t h e i n a l i e n a b l e r i g h t s of
he will,
or t h e
so long
52
public."
a
in
citizen
as h i s c o n d u c t
is
53
I
n
the
i C Q W Q Vi. !§?>!§§
First
the defendant
Amendment
decide
whether
cannot
be
g a v e an i n d i v i d u a l
to speak
punished
Brown argued
or n o t .
the
complete
He argued
for refraining
vigorously
right
t h a t an
from speaking.
that
to
individual
This
was
a
different
tively
found
argument than the Fifth Amendment argument he
alterna54
advanced.
The Court reversed Brown's
conviction
and
section
38.02 was
officers had not
s t a t u t e and
56
Amendment.
improperly
applied
because
the
police
lawfully
stopped Brown as required by the
55
l e r r y v.. O h i o .
The Court never mentioned the
Texas
First
57
The
Ninth
Circuit Court
of A p p e a l s i n
Lawson
vKgiender
recognized,
as did the S u p r e m e Court
in P a g a c h r i s t o u v._ C i t y of
58
Jacksonville,
t h a t i n d i v i d u a l s h a v e a f r e e d o m of l o c o m o t i o n . T h e
Lawson
court recognized
that persons have a right to
stroll
from p l a c e to p l a c e and that vagrancy
59
otherwise innocent activity into a crime.
wander
statutes cannot
or
turn
60
J o h n s o n v._
loitering
Johnson
Carson
statute
found
prohibiting
represents a more recent
by a federal
a municipal
loitering
unconstitutional
on
found
inter
to violate
court.
ordinance
for the purpose
its face.
The District
of
of
prostitution
0(1020
Amendment
of
Court
Jacksonville,
Specifically,
aiia the First
invalidation
a
in
Florida
to
be
the ordinance
was
and to be
over-
broad.
The
Johnson
court recognized
Amendments to implicitly
o-f m o v e m e n t ,
required
a
al.^a
true
officer.
person
and t o t h e r i g h t
inter
through
protect
Fourteenth
t h e r i g h t s o-f l o c o m o t i o n ,
an i n d i v i d u a l
disclosure
pointed
and a lawful
person's first amendment
rights have,
purpose
ordinance
to
out,
conduct
a
police
"Even
court
is
-freedom
his
purpose
conduct and the trial
believes the explanation
The
explain
of a l a w f u l
court correctly
e x p l a i n s h i s or her
and
to free a s s o c i a t i o n .
that
The Johnson
the First
if
ultimately
disclosed,
nonetheless,
a
been
the
chilled
61
by
the
arrest."
The Johnson
unconstitutionally
court
added
forces persons to either
that
"the
ordinance
curb their
exercising
risk
arrest."
62
of
constitutional
The First
Amendment
stop-and-identify
and
rights
remains
a
or
face
the
b a s i s for finding
vagrancy,
statutes unconstitutional
viable argument
of
standing
loitering,
is still
alone
and
noteworthy
even
in
recent
" t h e r i g h t s of
the
people
deci s i o n s .
to
The
Fourth
Amendment
be
secure
in t h e i r
against
unreasonable
provides that
persons,
houses,
papers
and
effects,
s e a r c h e s and s e i z u r e s shall
not
be
an e f f e c t i v e c l a i m
Amendment
vio-
63
lated."
tection
action
action
Therefore,
must prove two things.
constitutes
was
either
unreasonable
of
Fourth
First, that the questioned
a search
or s e i z u r e .
within
the
state
Second, that
purview
of
the
pro-
such
Fourth
Amendment.
The
Supreme
first
Court
s t e p of t h i s a n a l y s i s
has determined
that
is by far
"whenever
the
a
easier.
police
The
officer
a c c o s t s an i n d i v i d u a l
has
seized
64
Amendment.
definition
that
step
away,
he
the
Fourth
that
this
f o r t h e p u r p o s e of r e q u i r i n g
an
himself.
is not q u i t e so s i m p l e .
Prior
to its
decision
66
Ohio,
seizures
subject
probable
cause.
when
the Supreme Court had analyzed
to Fourth
Amendment
As defined
scrutiny
which
they
sufficient
person
required
that
as
in
and
terms
the officers'
or
of
exists
knowledge
information
a m a n of r e a s o n a b l e
Although
circumstances,
is b e i n g
search
caution
committed
warrants
the requirement
are
by
were
of p r o b a b l e
not
cause
absolute.
recognized
approved
an e x c e p t i o n
a search
accosted's
and
outer clothing,
majority
to this rule.
seizure,
cause.
The
in
Terry stop-and-frisk
the
only
trustworthy
an o f f e n s e h a s b e e n
67
to be arrested."
in a l l
was treated
Court
reasonably
in t h e m s e l v e s t o w a r r a n t
the belief
the
had
searches
by the Court probable cause
"the f a c t s and c i r c u m s t a n c e s w i t h i n
in
the
detention
to identify
I^CCY
in
to walk
within
the
meaning
of
65
In B r o w n v.. l e x a s
, the Court confirmed
The second
n
restrains his freedom
person
encompasses
individual
i
and
reasoned
involved
in t r a d i t i o n a l
intrusion
as a self-contained
on
consisting
lesser
that
of
grounds than
less severe
they would
category
and
treat
the
a pat-down
of
probable
since the intrusion
was so much
arrests,
In T e r r y
involved
than
this type
apply a balancing
that
of
test
68
to
determine
state's
its reasonableness.
The Court
found
interest:
(C)oncerned
more than a governmental interest
in i n v e s t i g a t i n g c r i m e ;
in a d d i t i o n t h e r e
is
flftftJS
that
the
the
more
immediate
i n t e r e s t of
the
police
o f f i c e r in t a k i n g s t e p s t o a s s u r e h i m s e l f t h a t
the
person
with whom h e is
dealing
is
not
armed
with
a weapon that could
unexpectedly
and f a t a l l y b e u s e d a g a i n s t h i m . 6 9
While
"a
limited
constitutes
personal
autonomy
Court
a
search
severe,
security,"
did
though
the
brief,
clothing
intrusion
individual's
not outweigh
made a finding,
ness,
of t h e o u t e r
greater
key to a judicial
cherished
in
personal
interest.
holding
of
inferences
from
The Jerry Court created
the
individual's right
tion
during
you
live?"
the police
Justice
observable
the lawful
to refusal
inquiry:
White
and
articulable
stop but
said
of t h e i n e v i t a b l e
"What
is your
in h i s c o n c u r r i n g
be
based
70
facts.
nothing
about
first
ques-
n a m e and
opinion
stated:
Also, although the Court puts the matter aside
in t h e c o n t e x t of t h i s c a s e ,
I think an a d d i tional
w o r d is in o r d e r c o n c e r n i n g t h e m a t t e r
of i n t e r r o g a t i o n d u r i n g a n i n v e s t i g a t i v e s t o p .
There
is
n o t h i n g in t h e
Constitution
which
prevents a policeman from addressing questions
to
anyone
on t h e
streets.
Absent
special
circumstances,
the person approached may
not
be
detained
or
frisked but
may
refuse
to
cooperate and go h i s way.
However, given the
proper
circumstances,
s u c h a s t h o s e in
this
c a s e , it s e e m s t o m e t h e p e r s o n m a y b e b r i e f l y
detained
against
his
will
while
pertinent
questions are directed to him.
Of c o u r s e A t h e
B5C5QD
stopped
i_s n o t
obliged
to
answer.*,
answers
m a y n o t b e cgmpel_l e d ^
and refusal, tg
a n s w e r f u r n i s h e s n o b a s i s f o r an
arrest,
although
it
may alert the officer to the
need
for continued o b s e r v a t i o n .
In m y v i e w , i t i s
temporary detention,
warranted by the circumstances,
which chiefly justifies the
protective
frisk
for w e a p o n s .
Perhaps the
frisk
itself,
where
proper,
will have
beneficial
Cfifl'AI
The
reasonable-
that the police o f f i c e r ' s motive for the search
on r e a s o n a b l e
weapons
upon
interest
the state's
for
where
in
do
Jerry
results
whether questions are asked
or
not.
If
weapons are found,
an a r r e s t will f o l l o w .
If n o n e a r e f o u n d ,
the frisk may nevertheless
serve
preventive
ends
because
of
its
unmistakable
message that suspicion has
been
aroused.
But
if t h e i n v e s t i g a t i v e
stop
is
s u s t a i n a b l e at a l l ,
constitutional rights are
not
necessarily
v i o l a t e d if p e r t i n e n t
questions
a r e a s k e d and t h e p e r s o n is
restrained
b r i e f l y in t h e p r o c e s s . 7 1 ( e m p h a s i s a d d e d )
In B r o w n
the
v._ T e x a s
application
defendant
lacked
of
section
violated
the
in c r i m i n a l
statute
was
not
context
of
answered
Justice
73
conduct.
punished
a
tacitly
decide
when
identify
footnote
concurring
that
to
in B r o w n
opinion
during
action
in T e r r y
a lawful
stop
of
stopped
c h a r g e of v i o l a t i n g
the Texas Penal
a
for
in i t s e n t i r e t y .
Code.
wmd
may
was
footnote
to
v^
New
need
refusing
to
to
stop
this
Justice
White's
This would
indicate
intentionally
Such
reward
a 7 5C l a s s C M i s d e m e a n o r
question
By dropping
of h i s n a m e a n d
in T e x a s w o u l d
the
i 7n 4v e s t i g a t o r y
adopted
it.
in
"We don't
requirements."
an i n d i v i d u a l
individual
and D u n a w a y
a lawful
obviously
that
himself
in
stated,
who requests
an
unanswered
in T e r r y
and
r e p o r t or g i v e a f a l s e r e p o r t
lawfully
to identify
may be punished
Amendment
dress to a police officer
one
o n i t s f a c e or t h a t
opinion
the Court
officers
the
in t h e c o n t e x t
Fourth
the
the
The Court did not hold
Court referred
an i n d i v i d u a l
himself
satisfies
such
Code to
was
This
the
because
held
to believe that the defendant
stop.
White's concurring
whether
Amendment
for refusing
lawful
proscribing
which
Fourth
unconstitutional
be
decision,
3 8 . 0 2 of t h e T e x a s P e n a l
any reasonable suspicion
engaged
may
t h e C o u r t , in a n u n a n i m o u s
refuse
residence
ad-
refusal
today
by
him or her
with
a
under
section
38.02
of
Court
felt the s t a t u t e did give fair notice consistent
s t a n d a r d s of P a g a c h r i . s t o u .
Fourth
and
virtually
Court
Fifth
Amendment
complete discretion
did state that
arbitrary
right to freedom
Court dropped
implicated.
have
the right to request
unnecessary
to
struck
deciding
the
down
other
common
have
law.
Amendment
of
it e v e r
these
in
laws,
plagued
California
legislature
Fifth
Amendment
con-
concerns
that while
police
voluntarily
ques-
to
compel
for t h e C o u r t ' s
of
failure
the vagueness
The Court
noted
g r o u n d s on
statute.
doctrine
that
which
According
to
questions would
by
stop-and-identify,
mankind
for
as long as
it i s n o t n e c e s s a r y
them.
the
because
it
the
was
Ninth
the
Court,
b e in
advance
so.
ineffective
legislatures
in
loitering,
there
has
now for t h e Court
Despite overwhelming
the states'
retaining
liberties and
112
principle
reason
constitutional
114
be so?
The
potential
on t h e v a g u e n e s s g r o u n d ,
these f a l l a c i o u s , r e p u g n a n t , and
will
the
on
movement.
the other
created
If
about
crimes they have no right
Circuit
the
to do
problems
concerned
footnote.
discuss
of t h e n e c e s s i t y
vagrancy
police.
the first prong
the Ninth
Circuit
The
than
in a n o t h e r
affirmed
the statute afforded
The apparent
go any further
it
the
citizens to answer
concerning
unsolved
113
was revealed
only
"It is a settled
them to answer."
to
q u e s t i o n s and focused
a footnote stating
were
tions
the
of F i r s t
never
the
addressed
it w a s s t i l l
suppression
stitutional
The
The 7-2 majority
with
Court
back
to the drafting
more than
Kglender
merely
table.
lay
when
reasons to strike
appear
The
been
to
laws to rest,
and
down
persistent
sent
the
Justice Brennan
also
in c o n c u r r i n g
to violate the Fourth
in K o j e n d e r
Amendment
a n d t h e -freedom -from u n r e a s o n a b l e
pointed
out
criminal
activity being
may
not
after
compel
brief
Brennan
enjoy
A person
the
and
Amendment rights
questions after being
same right
Brennan
suspicion
o-f
questions
but
to
in m a k i n g
a
Jerry
as
and p l a c e d
silent
as those
has
no
w a y of
suspicion
facts
lastly pointed
knowing
known
him
to
in
belief
whether
to
116
officers
as requested
j e o p a r d y of
that
and
arrest
the person
approached
in
White
light
police
"reasonable
objective
of
their
matter, the person's only
choice
because to do otherwise would
place
even
though
has committed
there is
a
crime.
loitering,
and
s t o p - a n d - i d e n t i f y 1 1 7s t a t u t e s
p l a c e t h e i n n o c e n t in t h i s d i l e m m a .
Justice
a
be-
arrested
by
d e p e n d s s o l e l y on t h e
evaluated
As a practical
respond
a citizen
the officers have
because that condition
experiences."
is
out that
in
should
reasonably
t o h a v e c o m m i t t e d t h e m o s t h e i n o u s of c r i m e s a n d
115
such p r o b a b l e c a u s e .
Brennan
compel-
to probable cause to a crime
to remain
crime
encounter,
just as much
arrested
arrest
it a
lieved
for
leave
u n l e s s p r o b a b l e cause for
that California,
unattached
647(e)
requirement
seizures.
investigatory
police questions during
and Sixth
one to answer
custody.
cause
and must allow t h e person
period
stated
to answer
abridges Fifth
ling
searches
afoot may ask
an a n s w e r
a reasonably
refuse
probable
t h a t p o l i c e o-f-ficers w i t h r e a s o n a b l e
is p r e s e n t .
to
-found s e c t i o n
in h i s d i s s e n t i n g
opinion
Ofin.%
no
All
reasonable
vagrancy,
unconstitutionally
pointed
out,
along
with
to
Justice Brennan,
Fourth
that the vagueness doctrine was
a n d Fi-fth A m e n d m e n t
Justice Rehnquist
and
concerns.
White
secondary
dissented
with
stated:
I
w o u l d a g r e e w i t h t h e m a j o r i t y in t h i s
case
if
it
m a d e at least s o m e s e n s e
to
conclude
that the requirement to provide 'credible
and
r e l i a b l e i d e n t i f i c a t i o n ' a f t e r a v a l i d s t o p on
reasonable
suspicion
of c r i m i n a l c o n d u c t
is
'impermissibly
v a g u e in a l l of
its
applications.'...
Of
course,
if t h e s t a t u t e o n i t s
face
v i o l a t e s t h e F o u r t h or Fifth
Amendmentand I e x p r e s s n o v i e w s about that q u e s t i o n - t h e
C o u r t w o u l d b e j u s t i f i e d in s t r i k i n g it
down.
But
the majority apparently cannot bring
itself to t a k e t h i s c o u r s e .
It r e s o r t s i n s t e a d
to
the
vagueness
doctrine to
invalidate
a
s t a t u t e t h a t i s c l e a r in m a n y of i t s
applications
but which is somehow distasteful to the
majority.
A s here construed and a p p l i e d , the
d o c t r i n e s e r v e s a s an o p e n - e n d e d a u t h o r i t y
to
o v e r s e e t h e s t a t e s ' l e g i s l a t i v e c h o i c e s in t h e
c r i m i n a l - l a w a r e a a n d in t h i s c a s e l e a v e s
the
state
in
a
quandary as to how
to
draft
a
statute that will pass constitutional muster.118
The
upshot
continue
to
loitering
of Kol.ender
have
laws
is that t h e C a l i f o r n i a
their
"show me
your
if t h e y s i m p l y d e f i n e
Perhaps the Court
papers"
"credible
merely
chant
pyrrhic
for nocturnal
detained,
because
and
section
and
version
of
647(e),
assume
what everone must
simply
for
exercising
he may well
reliable."
Lawson's
arrested
under
find
himself
authority
open-
victory
of a
his right
119
anonymous.
a person
cannot be
to silence and
Ofm?
pen-
stopped,
revised
while the Supreme Court continues
know—that
may
and
if h e c o n t i n u e s t o s a t i s f y h i s
strolls,
interrogated,
wishes to remain
vagrancy
d o e s not b e l i e v e this can be d o n e and t h e
ended vagueness doctrine would be sufficient.
was
legislature
to
arrested
fulfulling
his
The
Texas
Texas
stop-and-identify
Penal
Code,
Supreme Court
far
greater
evaded
in B r o w n .
reluctance than
statutes,
an
reason
acceptable
section
section
constitutional
38.02
of
the
attack
by
the
though the Supreme Court has
lower
c o u r t s in s t r i k i n g
it w o u l d h a v e b e e n
not to strike
down
shown
down
"show
hard
pressed
to
find
the
predecessor
of
38.02.
Section
was
facial
Even
me your papers"
statute,
38.02 was adopted
January
1,
1974.
Its
A r t i c l e 2 . 2 4 o f t h e T e x a s C o d e of C r i m i n a l
predecessor
Procedure
which
provi ded:
Whenever a peace officer has reasonable grounds
to believe that a crime has been c o m m i t t e d , he
may
stop
any
person
whom
he
reasonably
b e l i e v e s w a s p r e s e n t and m a y d e m a n d of h i m h i s
name
and a d d r e s s .
If
such person f a i l s
or
refuses
to identify himself to the
satisfaction
of t h e o f f i c e r ,
he may take the
person
forthwith before a magistrate.
If t h e p e r s o n
fails
to identify himself to the satisfaction
of t h e m a g i s t r a t e ,
the latter may r e q u i r e him
to
furnish
b o n d or m a y c o m m i t
him
to
i§ii
until
he
so identifies himself.120 (emphesis
added)
Even
though
section
tional
defects,
it
Section
38.02
38.02 is plagued
is
a vast
(b) p r o v i d e s :
with numerous
improvement
over
"An o f f e n s e u n d e r
constitu-
Article
this section
2.24.
is a
121
Class
C misdemeanor."
provides:
shall
be
"An i n d i v i d u a l
punished
accompanying
sonment
no
by
adjudged
a fine
practice commentary
is authorised
jurisdiction
panying
Section
section
because
to imprison."
1 2 . 2 3 of t h e T e x a s P e n a l
guilty
not
to
of a C l a s s C
exceed
specifically
misdemeanor
j 2*?
$200."
states:
justice and municipal
123
The
"No
(MJ038
impri-
courts
The practice commentary
38.02 states that the underlying
Code
stop
have
accom-
must
be
l a w f u l , and t h e c i r c u m s t a n c e s
ly stop a p e r s o n
under Jerry.
when
may
legal-
he may not arrest him are reasonably
narrow
The commentary
124
out by s t a t u t e .
Even
stop are reasonably
narrow,
man
of
As
a
common
if t h e c i r c u m s t a n c e s
matter,
run
the risk
his
address
or
know what
unless a person
what
of a r r e s t b y r e f u s i n g
asking
this
the policeman
is not
justifying
it d o e s n o t f o l l o w
wants to find out first-hand
not
a peace officer
points out that
intelligence would
practical
officer
in w h i c h
that a
a "lawful
stopped
arrest
if h e
Jerry
stop"
a
means,
has
a
reasonable
by
to identify
spelled
is.
police
he
will
himself
been
and
lawfully
stopped.
It
is s a f e to say that Brown
cannot merely suspect
requested
and
a person
the information
though a Class C misdemeanor
of s e c t o n
granted
under
for f a i l i n g
Texas.
and
herself.
section
papers"
The
38.02
to identify
These
38.02
section
similar
The defendant
be released
impermissible
in B r o w n w a s
authority
as soon
as
unconstitutional
a r e e x a m p l e s of
case
or
s o m e of t h e e v i l s
125
create.
in T e x a s o n s e c t i o n
previously
mentioned)
38.02
The U.S.
D o e in
of
Even
applicaauthority
jailed
Lubbock,
section
she
38.02
identified
applications
"show
is
if
stop
38.02.
to the
as was Barbara
under
officer
himself
is a fine only o f f e n s e , the
Doe was jailed
statutes allow
leading
126
Texas.
(facts
a police
as a basis to lawfully
from him under
himself,
that she would
also that
refuse to identify
is frighteningly
Article 2.24.
Barbara
told
will
and then use this suspicion
request
tion
held
me
your
Spring
District
of
v^
Court
held
in
1981 t h a t s e c t i o n
The
Spring
Fourth,
to
court
and Fifth
violate
foster
38.02 was unconstitutional
found
Amendments.
invasion
of
the arresting
127
i nescapable.
cuit
District
Court
issued
willful
refusal
in
that
imposes a fine.
of
privacy
and
unfettered
were
by t h e Fifth
an
arrest
not
constitutionality
Thus,
38.02
These conclusions
was reversed
the District
38.02 was reversed
128
warrant
amount
of
a
to
statute
Court's
on t h e o t h e r
Cir-
ruling
g r o u n d s of
lack
jurisdicttion.
Notwithstanding
tion 38.02,
on
First,
the
to pay a fine does
cases challenging
section
of
section
of
solely on
A p p e a l s on t h e g r o u n d s t h a t
"custody"
against
also held
expectation
officers.
Court's decision
of
for
only
The court
of p r i v a c y
discretion
The
-face.
the statute to be violative
a citizen's reasonable
arbitrary
on i t s
the
the compelling
the Texas
books
until
constitutional
legislature
must
the Supreme
d e f e c t s of
be determined
Court
finds
Mary Bauer's case against
Deputy
it
sec-
to leave
it
specifically
unconstitutional.
James
Dakota
and
presents one final
vagrancy,
and
loitering
Appeals
affirmed
awarded
the
for v i o l a t i o n
129
1983.
the
b a s i s for
statutes.
The basis for the finding
excessive
force maliciously
and
Circuit
of t h e D i s t r i c t
in d a m a g e s a g a i n s t
of t h e B a u e r s ' c i v i l
rights under
0<ffl40
South
Court
Court
of
which
Deputy
Norris
42 U.S.C.
section
was that Deputy
sadistically
in
stop-and-identify,
The Eighth
jury verdict
Bauers $7500 each
attacking
Norris
Norris had
for the purpose
used
of
causing
harm.
The compensatory
the physical
the
emotional
mental
Circuit
stated
and
liberty
Bauer
Norris
force
interests
received
court
noted
the good
even
Kgiender
though
only
detained, searched
existance
one
of t h e C o n s t i t u t i o n
of s u c h s t a t u t e s .
pleases,
and association
right to be informed
the
to
t h a t t h e u s e of
speculate
indispensable rights.
The
claims.
citizens
stand
and
being
probable
sqaurely
sacred.
Bauer
probably
not
as
at t h e peril
accosted,
police
cause.
The
in t h e w a y of
to go
the
where
Concomitantly,
to
the
Additionally,
of
meaning
life,
of
liberty
a
an
vagrancy
a t t h e w h i m s of
The right to privacy,
are
arrest,
The
was
loitering,
any
Bauers
on t h e f a l s e
the constitutionality
arrested
Deputy
a s t o w h a t t h e s t a t e c o m m a n d s or f o r b i d s
right not to be required
property
on
was
o f f i c e r s w h o d o n o t p o s s e s s a s c i n t i l l a of
guarantees
inde130
injury."
itself
and ultimatley
pro-
force,
immunity
the statute
lead to innocent
sum
the due
unconstitutional.
losing
and
Eighth
a normal
and e m o t i o n a l
defense and stated
was
The
including
and m a l i c i o u s p r o s e c u t i o n
that under
can
more than
faith
appears that stop-and-identify,
statutes
humiliation
from excessive
physical
inter
a n d di s c o m f o r t ) ,
fear,
rights,
the damages notwithstanding
unconstitutional
131
i ssue.
It
placed
facts
false imprisonment,
court
award
in f r e e d o m
for actual
these
pain
upon,
l o s s of t h e r i g h t t o l i b e r t y .
a s an a f f i r m a t i v e
under
(including
of c o n s t i t u t i o n a l
p e n d e n t of r e c o v e r y
The
(including
that a "jury could
for d e p r i v a t i o n
cess and
harm suffered
harm suffered
anguish),
damages were based
the
and
or
law
are
the right to be free
from
unreasonable
s e a r c h e s and s e i z u r e s and
probable cause is even
remain
silent before and after
These
"show me your papers"
drafted, impermissibly
p r i n c i p l e s and
and
which
o-f m o r e
arrest
inestimable
arrest
based
value.
is e q u a l l y
in t h e p r o c e s s e x a s p e r a t e
undermine
9
how
fundamental
than
to
cleverly
rights
police-citizen
t h e e n t i r e s y s t e m of c o n s t i t u t i o n a l
133
t h e l i b e r t i e s of c i t i z e n s r e s t .
I»
41
less
The right
132
as s a c r e d .
statutes, no matter
t r a n s g r e s s on m a n y
on
and
conflict
restraint
on
ENDNOTES
1.
B a u e r v . N o r r i s , 713 F.2d 408 (8th C i r . 1 9 8 3 ) ; K o l e n d e r
Lawson,
U.S.
, 103 S . C t . 1 8 5 5 , 1 8 6 1 , 75 L . E d . 2 d
913 (1983)
(Brennan, J., concurring).
2.
B a u e r v . N o r r i s , 713 F . 2 d 408
3.
S.D. Codified Laws A n n . § 22-13-1
4.
N o t e , supra n o t e
5.
S p r i n o v . C a l d w e l l , 516 F . S u p p . 1223
(1981).
T e x . P e n a l C o d e A n n . § 38.02
1974).
6
-
v.
903,
(8th C i r . 1 9 8 3 ) .
(5)
(1979).
2.
(Vernon
7.
B r i e f for A o o e l l e e at 2 , L a w s o n v . K o l e n d e r , 658 F . 2 d
(9th C i r . 1981) .
8.
Id.
9.
L a w s o n v . K o l e n d e r , 658 F.2d 1362
(9th C i r . 1 9 8 1 ) .
10.
C a l . P e n a l C o d e § 647(e)
1971).
11.
B r i e f of P e t i t i o n e r a t 2 , B r o w n v . T e x a s , 443 U . S . 47
12.
M i c h i g a n v . D e F i l l i p p o , 443 U . S . 31 (1979)
(Brennan, J . ,
d i s s e n t i n q ) ; P a p a c h r i s t o u v . C i t v of J a c k s o n v i l l e , 405 U . S .
1 5 6 , 164 (1972) .
13.
O l m s t e a d v . U n i t e d S t a t e s , 277 U . S . 4 3 8 , 478
J. , dissenting).
14.
U n i t e d S t a t e s F e d e r a l B u r e a u of I n v e s t i g a t i o n , [1975] U n i f o r m
C r i m e R e p o r t s F o r the U n i t e d S t a t e s 179 (1976); O r d e r s to M o v e
On and the P r e v e n t i o n of C r i m e , 87 Y a l e L . J . 603 (1978) .
15.
T . Ballinaer, Clean Slate
16.
180 C o l o . 1 2 3 , 503 P . 2 d 157
17.
Id.
18.
N o t e , supra n o t e
19.
P e r k i n s , The V a g r a n c y C o n c e p t , 9 H a s t i n g s L . J . 2 3 7 , 2 4 4 , 2 4 5 ,
(1958) .
(Deering
(1928)
1362
(1979).
(Brandeis,
(1979).
(1972).
15.
42
flftfl4f?
20.
Heinrich, Lawson v. Kolender:
3 C r i m . J u s t . J . 507 (1980J7
21.
id.
22.
Details may be requested from Floyd Holder, Lubbock,
23.
C a l . P e n a l C o d e § 647.6
24.
T h e U n i f o r m A r r e s t A c t , a d o p t e d in f o u r s t a t e s , see D e l . C o d e
t i t , ~ I I , § 1902
A New Vestment For Our
Vagrants?,
Texas.
(West S u p p . 1975) .
(1979); M o . A n n . S t a t . § 8 4 . 7 1 0
( S u p p . 19 79);
N . H . Rev. S t a t . A n n . § 594.2~(1974); R . I . G e n . Laws § 12-7.1
7 1 9 6 9 7 ; T h e U n i f o r m A r r e s t A c t , 28 U . ~ V a . L . R e v . 315
(1942) .
25.
O r d e r s to M o v e O n and t h e P r e v e n t i o n of C r i m e , 87 Y a l e
603 ( 1 9 7 8 ) .
26.
F y f e , E n f o r c e m e n t W o r k s h o p , 19 C r i m i n a l L . B u l l . 470
27.
Id.
28.
W i l l i a m s , C o n s t i t u t i o n a l R e f l e c t i o n s On C a l i f o r n i a ' s R e q u e s t
For I d e n t i f i c a t i o n L a w , 8 B l a c k L a w J o u r n a l 177 (1983) .
29.
S u l l i v a n , Y o u r P a p e r s P l e a s e , 37 W a s h . & L e e L . R e v . 253
30.
W a r r e n & B r a n d e i s , T h e R i g h t to P r i v a c y , 4 H a r v a r d L . R e v .
193 ( 1 8 9 0 ) .
31.
42 U . S . C . § 1983
(1976) .
32.
Note, supra note
30.
33.
N o t e , supra note
13.
34.
Id.
35.
E . Corwin, The Constitution a n d W h a t
(1983).
It M e a n s T o d a y , 4 41
7l4th ed. 1978)7
36.
367 U . S . 4 9 7 , 5 3 9 - 5 5 5
37.
Id.
38.
381 U . S . 479
39.
Id.
40.
Note, supra note
41.
P o e v . U l l m a n , 367 U . S . 4 9 7 , 5 1 6 - 5 2 2
(1965)
(1961)
(Harlan, J . ,
(Goldberg, J.,
L.J.
dissenting).
concurring).
36.
(1961).
(1980).
42
N o t e , supra note
43
97 W a s h . 2d 9 2 , 640 P . 2 d 1061
44
I d . a t 9 7 , 640 P . 2 d at 1 0 6 6 .
45
N o t e , supra n o t e
5.
46
N o t e , supra n o t e
29.
47
319 U . S . 624
48
See i d . at
49
430 U . S . 705
50
See i d . at 7 0 9 .
51
48 F . 2 d 171
52
See i d . at 1 7 3 .
53
443 U . S . 47
54
N o t e , supra n o t e 11 at 6 .
55
392 U . S . 1 (1968) .
56
N o t e , supra n o t e
53.
57
N o t e , supra n o t e
9.
58
405 U . S . 156
59
N o t e , supra note
9.
60
569 F . S u p p . 974
(1983) .
61,
See i d . at 9 7 9 .
62,
N o t e , supra note
63 ,
U.S^. C o n s t , a m e n d . I V .
64.
U n i t e d States v . B r i q n o n i - P o n c e , 422 U . S . 8 7 3 , 878
65,
N o t e , supra n o t e
53.
66,
N o t e , supra n o t e
55.
67,
B r i n e g a r v . U n i t e d S t a t e s , 338 U . S . 1 6 0 , 175-176 (1949),
(citing C a r r o l l v . U n i t e d S t a t e s , 267 U . S . 1 3 2 , 162 ( 1 9 2 5 ) ) .
38.
(1982).
(1943).
633.
(1977).
(9th C i r . 1 9 3 1 ) .
(1979).
(1972).
60.
44
ftfM45
(1975).
68.
N o t e , supra n o t e
69.
N o t e , supra n o t e 55 at 2 3 .
70.
N o t e , supra n o t e 55 a t 2 1 .
71.
N o t e , supra n o t e 55 at 3 4 .
72.
Note, supra note
73.
442 U . S . 2 0 0 , 210 n . 12
74.
N o t e , supra n o t e 53 a t 47 n . 3 .
75.
Note, supra note
76.
443 U . S . 31
7 7
•
55.
53.
(1979).
6.
(1979) .
Detroit M i c h . Code § 39-1-53.3
(1976) .
78.
Note, supra note
76.
79.
80 M i c h . A p p . 1 9 7 , 2 0 3 , 262 N . W . 2 d 9 2 1 , 924
80.
N o t e , supra n o t e 76 at 3 5 .
81.
N o t e , supra n o t e 76 a t 4 0 .
82.
N o t e , supra n o t e
76.
83.
N o t e , supra n o t e
53.
84.
502 F.2d 93
85.
See i d . at 9 6 .
86.
492 F.2d 1100
87.
N o t e , supra n o t e
88.
Id.
89.
N o t e , supra n o t e 53 at 5 2 .
90.
U.S. Const, amend. V.
91.
384 U . S . 436
92.
People v . B e r c k , 32 N . Y . 2 d 5 6 7 , 5 7 4 , 300 N . E . 2 d 4 1 1 , 4 1 5 - 4 1 6 ,
347 N . W . S . 2 d 3 3 , 40 (1973); P e o p l e v . D e F i l l i p p o , 80 M i c h .
A p o . 1 9 7 , 262 N . W . 2 d 9 2 1 , 924 (1977), r e v ' d on o t h e r g r o u n d s ,
443 U . S . 31 ( 1 9 7 9 ) .
93.
N o t e , supra n o t e
(1974).
(1974).
(1974).
9.
(1966).
60.
mM(\
94.
U.S. Const, amend. VI.
95.
N o t e , supra n o t e
9 6.
N o t e , The V o i d - F o r - V a g u e n e s s D o c t r i n e In The S u p r e m e
109 U . P a . L . R e v . 67 (1960).
97.
L a n z e t t a v . N e w J e r s e y , 306 U . S . 451
98.
N o t e , supra note
99.
Id.
58.
Court,
(1939).
58.
100.
Jacksonville Ordinance Code § 26-57.
101.
N o t e , supra n o t e 58 a t 1 6 9 .
102.
N t o e , supra n o t e
60.
103.
N o t e , supra n o t e
84.
104.
N o t e , supra n o t e
86.
105.
Id.
106.
L a w s o n v . K o l e n d e r , A p p e n d i x to J u r i s d i c t i o n a l S t a t e m e n t ,
A - 4 2 to A - 4 4 , 658 F . 2 d 1 3 6 2 , 1 3 7 2 , (9th C i r . 1 9 8 1 ) .
107.
N o t e , supra h o t e 9 .
108.
Id.
109.
N o t e , supra n o t e
110.
Kolender v. Lawson,
903
53.
U.S.
, 103 S . C t . 1 8 5 5 , 75 L . E d .
(1983).
111.
Id.
112.
Id.
113.
I d . at 1 8 6 0 , 75 L . E d , at 9 1 0 , 911 n . 9 .
114.
I d . at 1 8 6 0 , 75 L . E d . a t 911 n . 1 0 .
115.
N o t e , supra n o t e 110 at 1 8 6 1 , 75 L . E d . a t 9 1 2 .
116.
Id.
117.
118.
Id.
N o t e , supra n o t e 110 at 1 8 6 5 , 75 L . E d . a t 9 1 7 .
46
Of/04?
119.
Note, supra note 26.
120.
T e x . C o d e C r i m . P r o . A n n , a r t . 2.24
121.
T e x . Penal Code A n n . § 38.02(b)
122.
T e x . P e n a l C o d e A n n . § 12.23
123.
Searcy & Patterson, Practice Commentary, Tex. Penal Code A n n .
=
=
=
§ 12.23 (Vernon 1 9 7 4 ) .
~
124.
Searcy & Patterson, Practice Commentary, T e x . Penal Code A n n .
§ 38.02
(Vernon
(Vernon 1967) .
(Vernon
(Vernon
1974).
1974).
1974).
125.
N o t e , supra note
53.
126.
N o t e , supra n o t e
5.
127.
Id.
128.
Sprinq v . C a l d w e l l , 692 F . 2 d 994
129.
N o t e , supra n o t e 3 1 .
130.
N o t e , s u p r a n o t e 2 at 4 1 4 .
131.
N o t e , supra n o t e
2.
13 2.
Note, supra note
28.
133.
Id.
47
mms
(5th C i r . 1 9 8 2 ) .
76
A companion
which
c a s e to Brown
the Court decided
was Michigan
t h e s a m e d a y t h a t an a r r e s t
faith
r e l i a n c e on an e x i s t i n g
valid
notwithstanding
ordinance's
identify
refuses to respond,
d o c u m e n t s or other
77
arrest.
The
defendant
This
with
created
authorized
a subsequent
a person
identify
stopped
himself,
Detroit
a woman
a reasonable
to properly
in h i s p r e s e n c e a n d
with reasonable
and produce
search
controlled
charge
for
possession
of
DeFillippo revealed
substance.
of a c o n t r o l l e d
who
is subject
to
s a w
the
disrobing.
afoot
of
which
DeFillippo.
identify himself, the
officer
was committing
him for failing
a p a c k a g e of
the failure to identify
the
verifiable
that crime was
After the search
of
cause
D§EiiliEB2
identification
was
stop-and-
in t h e p r o c e s s of
arrested
good
ordinance
identification
suspicion
the officers to request
m a d e in
Detroit's
p o l i c e o f f i c e r s in
in a n a l l e y
in
determination
probable cause to believe that DeFillippo
offense
A
judicial
Under
e v i d e n c e of s u c h
Once DeFillippo refused
had
stop-and-indentify
unconstitutionality.
ordinance,
v.. D e F i i l i p p o
to
an
identify.
marijuana
and
the police dropped
and charged
78
DeFillippo
a
the
with
substance.
79
The
Michigan
C o u r t o f A p p e a l s in P e o p l e v D e F i l l i p p o
that the ordinance was unconstitutional
sed t h e e v i d e n c e .
and
Fourteenth
warrant, search
arrest, standing
Court,
on i t s f a c e a n d
The Supreme Court stated:
Amendment
a person
an a r r e s t i n g
officer
may,
validly arrested.... The fact
80
alone, authorizes a search."
DeFillippo's
"Under
search
was
incident
held
suppres-
the
without
of a
According
to a lawful
Fourth
a
lawful
to
arrest,
the
the
evidence was properly
admitted,
victed.
specifically
faith
The
Court
reliance
and DeFillippo
held
was properly
that the
on t h e u n c o n s t i t u t i o n a l
con-
officers'
good
ordinance validated
the
81
arrest.
BeELiliBBQ
is a c l a s s i c
e x a m p l e of c a s e s w h e n
t h e u s e of a s t o p - a n d - i d e n t i f y ,
loitering,
can
identification
require citizens to produce
presence with
refusal
justifying
a full
into
probable
search
incident
exercising
his Fifth Amendment
crime
of
lawful
These
innocent
means
to
statutes
Amendment
or v a g r a n c y
cause
or e x p l a i n
criminal
to arrest.
their
the
activity
The individual,
right to remain
a
activity and furnishes the police with
a
otherwise
illegally
force citizens to choose
Amendment
silent,
by
makes
obtain
or Fifth
of
with
statute
less than p r o b a b l e c a u s e and then b o o t s t r a p
citizen's
out
the police
seized
between
evidence.
their
rights every time they are
by p o l i c e who many times h a v e only a "gut feeling"
Fourth
accosted
that crime
is
afoot.
The
facts
of DeFil.li.BEQ
before the Court
be
punished
police
absent.
by
inquiry
Brown were not sufficient
s q u a r e l y t h e i s s u e of w h e t h e r
remaining
based
s i l e n t or
upon
a lawful
T h e DeFi^l.i.egg d e c i s i o n
eliminated
examination
of
put
an i n d i v i d u a l
may
improperly
responding
to
stop when probable cause
is
on t h e good
the
to
faith
reliance
constitutionality
issue
of
the
82
ordinance.
The
articulable
facts,
which
eliminated
Court
in
Brown
suspicion
requirement
meant
Brown
that
found
the
reasonably
of J e r r y t o b e l a c k i n g
was not
the Court's contemplation
lawfully
stopped.
in
the
This
of t h e c o n s t i t u t i o n a l i t y
of
83
the Texas stop-and-i dent i f y
statute.
84
In P o w e l l
v._ S t o n e
Henderson,
Nevada vagrancy ordinance,
section 647(e),
ment
that
Powell
t h e N i n t h C i r c u i t C o u r t of A p p e a l s f o u n d
similar
to the
on
probable
require-
cause.
The
court stated that vagrancy statutes authorize arrest
conviction
Pqw§?1_1
for
court
conduct that
introduced
is no m o r e
a novel
than
on F o u r t h A m e n d m e n t p r i n c i p l e s .
that
the
statute's language was
of t h e o f f e n s e w e r e t o o o b s c u r e t o a f f o r d
criteria
by
pronged
Circuit
Fourth
Court
similarily
the Fourth
of
Amendment
can form a
stated
a
the
reasonable
belief
or
85
c a u s e that the o r d i n a n c e had been v i o l a t e d . "
The same
probable
an o f f i c e r
tres-
and vague that
elements
which
The
a second
The Ninth Circuit
"so g e n e r a l
and
suspicious.
analogy to find
pass
two
California
incompatible with the Fourth Amendment
arrests must be predicated
a
reasonable
attack was
used
A p p e a l s in N e w s o m e v..
drafted New York
and F o u r t e e n t h
loitering
by
the
86
Maicome
Second
to
find
statute incompatible
a
with
Amendments.
87
The Ninth Circuit
of
the
California Penal
Fourth and Fourteenth
doctrine
in L a w s o n
of
v.. K o l e n d e r
found
Code to be unconstitutional
Amendment
vagueness.
Ninth Circuit was two-fold.
grounds and
on
The Fourth Amendment
argument
The first argument
was that
First,
of
comport
the
fundamental
right to be secure against unreasonable
and
seizures.
T h e r e a s o n a b l e n e s s of t h e s e a r c h
the
the
vagrancy
for a r r e s t .
argument was that vagrancy statutes do not
OflO?7
647(e)
incompatible with
statutes subvert the probable cause requirement
second
section
The
with
searches
turns upon
the
seriousness
the
of
public
pelled
intrusion
interest.
to produce
on personal
The Lawson
identification
a b s e n c e of a n y k n o w n u n l a w f u l
sion
and
Lsiwsgn
in m a n y r e s p e c t s
court
security
concluded
outweigh
p r o v i d e a link
to
once
the information
f i l e s and
that the serious
to arrest.
The Fourth Amendment
tutional.
Such
bootstrapping
for a r r e s t
of t h e i r
The
social
Amendment
and c o n d u c t .
pect's
refusal
incriminate
with a post
°f
Arizona
arrestee
on
the incident
arrest
91
The
may
specifically
the
individual
in
police
statutes
reasons
are
why
unconsti-
on l e s s t h a n p r o b a b l e
provides that
seizures
"No p e r s o n
c a s e to be a witness
loitering,
in
...
by
cause
light
shall
against
be
90
himself."
and vagrancy
statutes
a suspect
explain
his
presence
laws impose a criminal
penalty
for the
Although
and F i f t h
surely
intru-
the probable cause requirement
that
to provide the police with
him.
the
personal
is placed
s e a r c h e s and
89
objective."
to demand
These
in
identification
88
to arrest
M a n y of t h e s t o p - a n d - i d e n t i f y ,
police
on
The court pointed
l o i t e r i n g , and v a g r a n c y
in a n y c r i m i n a l
authorize
that
allow unreasonable
Fifth
compelled
intrusions
alone presents two compelling
laws subvert
"weighty
alone,
com-
banks.
the authority
and
that to be
as a pat-down.
stigma placed
concerning
against
is not a d e m i r u m u s
is as s i g n i f i c a n t
large scale data
stop-and-identify,
upon suspicion
conduct,
and p e r m a n e n t
balanced
court believed
the mere possibility
leading
the temporary
security
this right
is
information
generally
that
stand
has more rights than
for t h e
a free man.
0flft?8
might
associated
Amendment problems, Miranda v.
did not
sus-
State
proposition
that
No
Miranda
indeed,
an
simply
m a d e it a r u l e t h a t o n e a r r e s t e d
rights,
the rights he holds whether
old,
sleeping
every
day!
Few
or a w a k e ,
Amendment
usually
down
grounds
found other
before they
struck
This is b e c a u s e
constitutional
his
have every minute
statutes have been
alone.
of
f r e e or i m p r i s o n e d , y o u n g
t h e r i g h t s w e all
"show me your papers"
Fifth
must be notified
down
or
of
on
courts
have
grounds to strike these
laws
contemplate the Fifth Amendment
question.
Two
state courts have struck down a loitering statute
on
Fifth
92
Amendment
grounds.
Additionally,
the Johnson court held that
the
Jacksonville
arresting
his
officer
loitering
her conduct,
93
ti o n a l i t y .
Fifth
did not cure the
Amendment
argument
your papers"
s t a t u t e s and
tutionality.
I t s l a c k of
its s t r e n g t h .
by
debate
supporting
resort.
the other
Even though
constitutional
advanced
which
isolation
arguments
argument has been
it i s t r u e l y
and should
be used
mainly
the Fifth Amendment
by one attempting
the
me
unconsti-
by t h e c o u r t s d o e s not
it h a s b e e n u s e d
independently
explain
"show
weaken
permitted
just b e l o w t h e s u r f a c e of
may indicate
the
unconstitu-
s t r i k e s t o t h e h e a r t of t h e i r
to lay
arguments,
ordinance's
to
remains viable against
The Fifth Amendment
the Supreme Court
tional
requiring
t o g i v e t h e a r r e s t e e an o p p o r t u n i t y
or
The
ordinance's safeguard
constitustrong
arm
only as a
last
in s u p p o r t
argument
to strike
of
other
should
be
down
these
law
when
1 aws.
The
d o c t r i n e of v a g u e n e s s h a s i t s r o o t s a t c o m m o n
courts
re-fused
application.
nal
to
en-force s t a t u t e s d e e m e d
The Sixth Amendment
prosecutions
the accused
which
shall
too
uncertain
provides,
" In a l l
enjoy the right
94
of t h e n a t u r e a n d c a u s e of t h e a c c u s a t i o n , "
95
t h e d o c t r i n e of v a giu e n e s s i t s c o n s t i t u t i o n a l b i r t h .
The
void-for-vagueness
First,
the
quate
doctrine advances
doctrine requires that
warning
to potential
crimi-
...
informed
three
for
to
be
provided
principles.
state laws must provide
o f f e n d e r s of w h a t c o n d u c t
is
adeunlaw-
96
ful.
Second,
the doctrine
ring
law-abiding
citizens
covered
by the law.
prevents vague statutes from
from conduct
Finally,
These
port
ideals have been
from
fine-tuned
arbitrary,
The Supreme Court
99
ville
articulated
vagueness
vagrancy
and
in
The underlying
1 9 7 2 in P a g a c h r i s t o u
the modern
loitering
it h e l d
v..
interpretation
a municipal
further
law
law r e m a i n s t o d a y .
and r e m i n i s c e n t
sup-
is
to
enforce-
Jackson-
void-fof—
proscribing
v a g u e and
The Jackson, Florida vagrancy ordinance
to
enforce-
purpose
ordinance
laws
Fourteenth
law
the
be
in o r d e r
C i t y of
of
to be unconstitutionally
g o o d e x a m p l e of h o w a n t i q u a t e d
the
fact.
that
and
c a p r i c i o u s and discriminatory
doctrine when
due process.
days
and today find
which r e q u i r e r e a s o n a b l e g u i d e l i n e s for
o f f i c i a l s a n d t r i e r s of
prevent
98
ment.
adequate guidance
t h e d u e p r o c e s s c l a u s e s of t h e F i f t h
Amendments
ment
which m a y or may n o t
the doctrine demands
provide
e n f o r c e m e n t o f f i c i a9 l7 s w i t h
enforce properly such laws.
deter-
to
deny
provides
a
of
pre-Magna
Carta
The Jacksonville
Ordinance
Code
mmv
section
as
26-57 provided
a t t h e t i m e of t h e a r r e s t s a n d
convictions
-follows:
Rogues
and v a g a b o n d s ,
or d i s s o l u t e
persons
w h o u s e j u g g l i n g o r unlaw-ful 1 g a m e s o r
plays,
common
drunkards,
common
night
walkers,
thieves,
p i l f e r e r s or p i c k p o c k e t s , t r a d e r s in
stolen
property,
lewd wanton and
lascivious
persons,
keeper
of g a m b l i n g
places,
common
railers
and
brawlers,
persons wandering
or
strolling
around from place to place
without
any
lawful
purpose
or
object,
habitual
loafers,
disorderly persons, persons neglecting all lawful b u s i n e s s and h a b i t u a l l y
spending
their
t i m e b y f r e q u e n t i n g h o u s e s of
ill
f a m e , g a m i n g h o u s e s , or p l a c e s w h e r e a l c o h o l i c
b e v e r a g e s a r e sold or s e r v e d ,
persons able to
work
but habitually living upon the
earnings
of
their
w i v e s or m i n o r
children
shadl.
be
deemed
vagrants and,
u p o n c o n v i c t i o n in
the
Municipal
Court shall be punished a
provided
for C l a s s D o f f e n s e s . 1 0 0 (emphasis a d d e d )
The Court found the vagueness to delegate
policy
matters to policemen
statute
vague
invited
law
failed
prohibited.
at
its
The
and d i s c r i m i n a t o r y
common
criminal
Court
did
not
left
pursue
tailored
implied
narrowly
essentially
the Fourth
the
all
violated
101
Amendment.
and
"beating
around
the
to
in
it
guess
Jacksonville
normally
innocent
vagrancy
law
the
t h e s t a n d a r d s of s e a r c h
the bush"
ocnni
conduct
In d i c t u m
B e c a u s e of t h e S u p r e m e C o u r t ' s p e r s i s t e n t
gymnastics
what
The
was
legislative bodies
drafting.
that the ordinance
s e i z u r e of
that
state that
The
enforcement.
were forced
a c t i v i t i e s o u t of
inherently vague which
more
intelligence
The Court also noted
makes
basic
on an ad hoc s u b j e c t i v e b a s i s .
t o g i v e a d e q u a t e n o t i c e of
C i t i z e n s of
meaning.
ordinance
acts.
arbitrary
impermissibly
exercising
of
Papachristou,
to
Court
and
legal
the
Jacksonville
which
legislature
the District
Court
unconstitutionally
Fourth, Fifth
and
addition
Sixth
down the Henderson,
person
of o r d i n a r y
and e n c o u r a g e d
v.. C a r s o n
vagrancy
down
o-f
as
First,
doctrine
mentioned)
ordinance.
stop-and-identify
intelligence
statute
rights.
the ordinance, which
arbitrary
struck
and violative
grounds previously
out that
a loitering
102
upon the void-for-vagueness
Nevada
Texas and California
drafted
vague,
Amendment
called
to other
fically pointed
in J o h n s o n
overbroad,
T h e PoweJLL c o u r t
(in
subsequently
to
The court
reads much
statutes,
strike
failed
speci-
like
the
to give
a
f a i r n o t i c e of f o r b i d d e n
and erratic
conduct
103
convictions.
arrests and
104
The Second
Circuit
void-for-vagueness
previously
as
in N e w s o m
doctrine
mentioned)
and explanation
unbridled
addition
to
York
of c o n d u c t
discretion
court
stated
to p o l i c e , and
t h e p r o s e c u t o r s n1o0 t5 t o a b u s e t h e l a w d i d n o t
unconsti tuti onal i t y .
After
on
the
which
being detained
b a s i s of
required
Lawson's
or a r r e s t e d
section
6 4 7 ( e ) of
persons who loiter
provide a "credible and
police,
loitering
statute
reliable"
Edward
Lawson
filed
civil
action
sought
alone, as
that the
California
or w a n d e r
suit
in F e d e r a l
a declaratory
(Wnn2
statute
intentions
its
fifteen
times
Penal
Code,
on the
identification
does
neutralise
approximately
the
identifica-
the good
of
the
grounds
on mere s u s p i c i o n
The Newsom
upon
other
The New York statute required
Texas and C a l i i f o r n i a .
conferred
(in
also called
to strike down a New
unconstitutional.
tion
v^ Mai com
streets
when demanded
District
judgment
to
by
Court.
that
the
statute was unconstitutional,
refrain
enforcement
a mandatory
of t h e s t a t u t e , a n d c o m p e n s a t o r y
damages
for
various
officers who had arrested
statute
was
than
deprivation
overbroad
The
statute.
and noted
him.
court
that a person
state appealed
cuit
and Lawson
issue.
The Ninth
tent with
Circuit
Ninth
Circuit
in L a w s o n
privacy
rights
and
process
clause
b e c a u s e of
ment.
The
statute
vague.
The
court
harnessing
Lawson
When
found
the
Circuit's decision,
the
recover
and
faith
denied
jury
to
to
be
and
vague
to
give
Amendment
violate
and
the
due
enforce-
unconstitutionally
statute's
effect
also
108
of
awarded
claim.
certiorari
before
(JWKQ
trial
cause
and
First
Cir-
inconsis-
failed
107
process.
on t h e d a m a g e
granted
it h a d p l a c e d
of
could not
rights. The Ninth Circuit
Court
identify
and d i s c r i m i n a t o r y
dictum the
to a jury trial
Supreme
647(e)
was thus found
Fifth Amendment
the right
by d u e
arbitrary
in
the
less
unconstitutionally
identified
section
noted
to
probable
enforcement
and a d e q u a t e n o t i c e as required
The
that
issue to the Ninth
g u a r a n t e e s of
arbitrary
the
on
that the statute was
and s e i z u r e s and
encouraged
from
enforcement
on t h e t h e g o o d
affirmed
Amendment
punitive
stopped
immunity
to
issue.
the constitutional
searches
it
faith
cross appealed
Fourth
reasonable
because
enjoined
106
on t h e good
and
rights
for failing
b e c a u s e of t h e o f f i c e r s ' g o o d f a i t h
him a jury trial
The
therefore
seeking
The court held
The court held, however, that Lawson
damages
fair
of h i s c o n s t i t u t i o n a l
probable cause cannot be punished
himself.
injunction
of
it s q u a r e l y
the
all
Ninth
of
the
constitutional
under
reasons why a person
who has been
t h e s t a n d a r d s o-f J e r r y c a n n o t
be punished
i d e n t i f y or a c c o u n t
for his p r e s e n c e .
held
that a person
could
tion
if
Court
not reasonably
assumed
assumption
obstacle
that
allowed
Court
to furnish
to get
past
the
The
Brown
Supreme Court being
on t h e o p e n - e n d e d
weak-kneed
void-for-vagueness
on t h e s e
Jexas
identifica-
This
unlawful
stop
its
face
doctrine to decide
the meaning
contemplated
"credible
that
California
breathe new
The
address
the
the second
it f a i l e d
was
to
that
legislature
calling
may
classify
a
This would
by
the matter
on t h e
to
stated
that the notice aspect
is
Lawson
111
doctrine,
important
only held the statute to violate the arbitrary
aspect
of t h e v a g u e n e s s w h i c h
enforcement
is not s u f f i c i e n t l y
s u s p e c t m u s t d o in o r d e r
when
particular
to satisfy
did
The
be
not
fair
Court
one.
The
enforcement
the standard
in d e s c r i b i n g
the statute.
(Kfft.^4
will
to give
Court
is created
mean
draftmanship
prohibited.
was not the
a
again.
vagueness
c i t i z e n s of w h a t c o n d u c t
provide
seem to
crafty
a s p e c t of t h e d o c t r i n e — f a i l u r e
notice
what
suspect
647 so that another
to indure and relitigate
C o u r t , in
the
identification.
life into section
vague
o f t h e D u e P r o c e s s C l a u s e of
requirement
and r e l i a b l e "
the
forced
by
because
back
Kolender.
on
Amendment
and
i s s u e s fell
that the statute was unconstitutionally
Fourteenth
the
Jerry.
The Court concluded
its face within
to
109
conduct,
satisfied
a n d s t r i k e d o w n t h110
e s t a t u t e on
it t h e m a n y o t h e r s it r e s e m b l e s .
with
of
the
v..
of a n y c r i m i n a l
t h e m e r i t s of L a w s o n
stopped
for r e f u s i n g
While Brown
not be required
suspected
lawfully
for
what
Presumably
a
the