Fifth Amendment challenge?

[SqueakMouse]

What is the name of your state? Michigan

Im considering urging my brother to actually hire an attorney to try and do this, but Im looking for an opinion as to whether or not it sounds legit before I open my mouth. The only attorney I know was just elected judge, and will probably hear part of this, so im flying blind.

He is required by law to register with his local law enforcement agency as a sex offender. This requirement mandates that he not only register within 10 days of changing his address, but also confirm his current address 4 times a year. There's a 15 day window, every 3 months, for him to make this 'confirmation'.

He just moved back nearby, and has informed me that during the move he missed his 'confirmation'. This is a misdemeanor offense. He's very nearly about to run out of his 10 day window to change his address, and is concerned that he'll be arrested for the prior misdemeanor, while attempting to lawfully change his address.

My question is: Does his being compelled to enter the police station to identify himself (as required by law) and change his address, violate his right against self-incrimination?

The statement made at the police station is certainly "...testimonial, incriminating, and compelled...", and seems to be in violation of his Fifth Amendment rights.

In Kastigar v. United States, (1972), the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”

Hiibel v. Sixth Judicial Court of Nevada, (2004), further clarified that unless a suspect is being questioned during a legitimate "Terry" stop, and the questions directly releate to the scope of that stop, he may invoke his privilege if "[T]he danger to be apprehended [is] real and appreciable..."


So, does this look anywhere near decent grounds for a challenge?

I believe he would have to intentionally not change his address, be convicted under the current law, then appeal that conviction. Is that correct?

Im not just waxing legal here. I would love the opinions of the legal eagles on the site.

Thanks in advance-What is the name of your state?

[BelizeBreeze]

Originally Posted by SqueakMouse

What is the name of your state? Michigan

Im considering urging my brother to actually hire an attorney to try and do this, but Im looking for an opinion as to whether or not it sounds legit before I open my mouth. The only attorney I know was just elected judge, and will probably hear part of this, so im flying blind.

He is required by law to register with his local law enforcement agency as a sex offender. This requirement mandates that he not only register within 10 days of changing his address, but also confirm his current address 4 times a year. There's a 15 day window, every 3 months, for him to make this 'confirmation'.

He just moved back nearby, and has informed me that during the move he missed his 'confirmation'. This is a misdemeanor offense. He's very nearly about to run out of his 10 day window to change his address, and is concerned that he'll be arrested for the prior misdemeanor, while attempting to lawfully change his address.

My question is: Does his being compelled to enter the police station to identify himself (as required by law) and change his address, violate his right against self-incrimination?

The statement made at the police station is certainly "...testimonial, incriminating, and compelled...", and seems to be in violation of his Fifth Amendment rights.

In Kastigar v. United States, (1972), the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”

Hiibel v. Sixth Judicial Court of Nevada, (2004), further clarified that unless a suspect is being questioned during a legitimate "Terry" stop, and the questions directly releate to the scope of that stop, he may invoke his privilege if "[T]he danger to be apprehended [is] real and appreciable..."


So, does this look anywhere near decent grounds for a challenge?

I believe he would have to intentionally not change his address, be convicted under the current law, then appeal that conviction. Is that correct?

Im not just waxing legal here. I would love the opinions of the legal eagles on the site.

Thanks in advance-What is the name of your state?

he is not a witness nor is he being questioned. He is fulfilling his obligations under law. You can tell him that he will most assuredly be arrested if he does NOT report.

[SqueakMouse]

Originally Posted by BelizeBreeze

he is not a witness nor is he being questioned. He is fulfilling his obligations under law. You can tell him that he will most assuredly be arrested if he does NOT report.

He has no intention of not meeting his legal obligations. My raising this question has little or nothing to do with his actions. Having said that, he most assuredly MUST be arrested and convicted under the law for there to be any chance of a challenge to that law.

He's not a witness, but he is indeed being compelled (by the reporting statute) to answer a question in regards to his identity. A police station is considered a custodial environment, especially if he has no choice but to enter it to fufill his legal obligation. By producing his ID and identifying himself he is establishing a link in a chain of evidence for the misdemeanor he's already technically committed (and may have a warrant issued for currently). This is where I feel his Fifth Amendment rights are being violated.

Sexual offender reporting statues are absurd. It's the only felony (in some cases) that I can think of where you can be committing it, simply by sitting on your couch. But i digress...

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[BelizeBreeze]

Originally Posted by SqueakMouse

He has no intention of not meeting his legal obligations. My raising this question has little or nothing to do with his actions. Having said that, he most assuredly MUST be arrested and convicted under the law for there to be any chance of a challenge to that law.

He's not a witness, but he is indeed being compelled (by the reporting statute) to answer a question in regards to his identity. A police station is considered a custodial environment, especially if he has no choice but to enter it to fufill his legal obligation. By producing his ID and identifying himself he is establishing a link in a chain of evidence for the misdemeanor he's already technically committed (and may have a warrant issued for currently). This is where I feel his Fifth Amendment rights are being violated.

Sexual offender reporting statues are absurd. It's the only felony (in some cases) that I can think of where you can be committing it, simply by sitting on your couch. But i digress...

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Your argument just showed how little you have on the ball. goodbye.

[SqueakMouse]

Originally Posted by BelizeBreeze

Your argument just showed how little you have on the ball. goodbye.

I guess I was looking for some constructive criticism, not an ad hominem attack on the author. I have no problem with an argument being picked apart. The situation he brought up to me seems unique, and I want to elicit a discussion on it.

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[justalayman]

Well, this isn't a debate forum.

You must realize your arguements are flawed in so many ways. First thing is, depending in what state is involved, the police can ask your name at just about any time and the USOC has supported the constitutioanlity of that request. Giving up your name is not, in itself, incriminating information so the compelling to divilge it does not violate any constitutional rights.

Next, your brother is required as part of his sentence to register his address as ordered. At that point, his constitutional rights are legitamately set aside, same as when you get tossed in jail.



As far as attacks go, Belize Breeze was unusually mild in his comments.

[tranquility]

I, too, was suprised at BBs relaxed attitude. He can sometimes be a bit prickly.

To answer the original post, no, there is not a constitutional violation. As justalayman said, the reporting requirement is statutory and based on punishment for the crime. Felons can be prevented from voting, parolees can have their 4th amendment rights curtailed, other things as well.

As to the more general, it has been litigated where identification of one's self is a violation of testifying against yourself. It comes up in booking, tax forms, ownership of luggage with identification tag and containing drugs. While the court usually finds some reason why the particular instance under decision is not a violation, it often conceeds there is some theoretical possibility different facts could be. Here, that is not even the case. Identification is not the testimony it is a fact. That the police will arrest the person on a warrant does not relate to testimony at all. The person stating his name will *not* have that statement used against him in any way. The person's identiy will be used, not his statement. There is no 5th amendment implications.

[BelizeBreeze]

Originally Posted by tranquility

I, too, was suprised at BBs relaxed attitude. He can sometimes be a bit prickly.

awwww shucks.....