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« Our Correspondent in Maine | Main | YAMB Discovery in the Upper Missouri »

June 22, 2004



While I have mixed feelings about suspects' rights to privacy, I do believe SCOTUS further eroded our Bill of Rights yesterday. In an era where cops have a low threshold for a burden of proof, we need our courts to defend, not attack, our rights as citizens.


I must say that I side with Sam on this one; mostly due to my libertarian agreement with Justice Stevens. Provision of your moniker is a de facto offering of all personal information required by state and regional agencies, and hence can and will be self-incriminating for any violation, known or unknown.


I absolutely hate this decision, but I'll add some context. I think Sam's comment on his blog is correct and remains so. This whole argument arises in the context of Terry v. Ohio. Although the threshold is lower than normal probable cause, a Terry stop still requires some articulable suspicion before the stop can occur -- note that the majority opinion assumes a "valid Terry stop" has occurred. Under Terry for example, a police officer can already stop you and pat you down and ask you questions about what you're doing. How asking you what your name is in this context is any more invasive is a legitimate question. I disagree with the Court's outcome on this, but I don't think they've approved questioning of just anyone a cop happens to see on the street without any prior suspicion.

This is probably a reinterpretation of Terry. I haven't reread Terry, but my recollection is that it focuses on the objectively observable aspects of a suspect's behavior. That is, if a cop sees an individual walking back and forth in front of a store, peering in the windows, looking up at the doors, and effectively "casing the joint," the cop can walk up to the suspect and ask what he's doing because he has a "reasonable suspicion" -- given the cop's training and experience -- that the suspect is planning a burglary. If the suspect says he's just walking down the street minding his own business (a clearly inaccurate statement, given the observations), then the cop can make further inquiry. The suspicion level ratchets upwards as the suspect givens answers that do not comport with the cop's observations. The problem is that the suspect's name bears no relationship to the observable behavior that is the fundamental basis of Terry. By requiring a suspect to give his name, the Court is permitting the police to obtain information that is not rationally related to the underlying basis for the Terry stop.

It should be noted that a routine traffic stop is NOT at Terry stop. In a traffic stop, the officer has generally already observed some illegal behavior. In that context, the Terry analysis does not apply.

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