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Texas §38.02 trial

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PrefersPrivacy

Guest
Hi, newuser here. I'm representing myself against the misdemeanor charge of "failure to identify to a police officer." My trial is soon, so this forum seemed like a fun thing to try.

Here's the story, as short as I can tell it.

I walk, often at night, around my neighborhood in any of several routes which I find pleasant. Nothing nefarious going on, I just like to walk in the silence of the night.

One morning/night I'm walking and a policeman drives up, gets out and approaches me. He demands my I.D., and I tell him that in the state of Texas, I'm under no obligation to identify myself to him. He tells me he understands that, but that I should understand that he's "... just doing [his] job, you know." He explains that somebody is breaking into cars around the neighborhood. Okay, fine, to get him to go away I showed him my DL, and that was that. He followed me out of the area but nothing came of it.

Well, a couple weeks later- same cop, same area, same request, same explanation of Texas law from me, Whoah! Different reaction from policeman. I got arrested for refusing to tell the cop my name.

(for those not familiar with http://www.bakers-legal-pages.com/pc/3802.htm">Texas Penal Code section 38.02)

Good lord, you'd think that http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=443&invol=47">Brown v. Texas would have stopped this a long time ago- like 25 years ago! It's very clear from the way the Code is constructed that I was illegally arrested. I plead not guilty and as I say, my trial is soon.

My questions...

1. Should I bother testifying?
I don't believe that the prosecution can even establish reasonable suspicion supporting the stop and frisk that started this. i've seen the officer's report- there's <b>nothing there</b>. There's lots of talk about a "suspect" but the only justification of the officer's suspicion is that "criminal mischief" had occurred "in the area." Firstly, I don't think there had been any recent reports of mischief. Secondly, the U.S. Supreme Court has ruled that being in a high-crime area does not in itself constitute reasonable suspicion. I believe I can show that my behavior was entirely consistent with that of an innocent person.

2. If I do not testify, how best to approach the issue of the prior encounter? Can I simply ask the officer about it during cross? It's my belief that the prior encounter demonstrates that the officer <i>already knew</i> my name and address, and that the arrest for failure to ID was incidental to the officer's investigation into crimes for which he had no probable cause to believe I was responsible.

Anyway- the prosecution has made the contention that refusing to give a name at all is the same thing as giving a false name. That is obviously not a legally sound position to take. Nevertheless, it was enough to send this case to trial. So to be certain I can defend myself, I must dispute the existence of reasonable suspicion. Any help, advice, tips or warnings are all greatly appreciated.
 
Last edited:


HomeGuru

Senior Member
PrefersPrivacy said:
Hi, newuser here. I'm representing myself against the misdemeanor charge of "failure to identify to a police officer." My trial is soon, so this forum seemed like a fun thing to try.

Here's the story, as short as I can tell it.

I walk, often at night, around my neighborhood in any of several routes which I find pleasant. Nothing nefarious going on, I just like to walk in the silence of the night.

One morning/night I'm walking and a policeman drives up, gets out and approaches me. He demands my I.D., and I tell him that in the state of Texas, I'm under no obligation to identify myself to him. He tells me he understands that, but that I should understand that he's "... just doing [his] job, you know." He explains that somebody is breaking into cars around the neighborhood. Okay, fine, to get him to go away I showed him my DL, and that was that. He followed me out of the area but nothing came of it.

Well, a couple weeks later- same cop, same area, same request, same explanation of Texas law from me, Whoah! Different reaction from policeman. I got arrested for refusing to tell the cop my name.

(for those not familiar with http://www.bakers-legal-pages.com/pc/3802.htm">Texas Penal Code section 38.02)

Good lord, you'd think that http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=443&invol=47">Brown v. Texas would have stopped this a long time ago- like 25 years ago! It's very clear from the way the Code is constructed that I was illegally arrested. I plead not guilty and as I say, my trial is soon.

My questions...

1. Should I bother testifying?
I don't believe that the prosecution can even establish reasonable suspicion supporting the stop and frisk that started this. i've seen the officer's report- there's <b>nothing there</b>. There's lots of talk about a "suspect" but the only justification of the officer's suspicion is that "criminal mischief" had occurred "in the area." Firstly, I don't think there had been any recent reports of mischief. Secondly, the U.S. Supreme Court has ruled that being in a high-crime area does not in itself constitute reasonable suspicion. I believe I can show that my behavior was entirely consistent with that of an innocent person.

2. If I do not testify, how best to approach the issue of the prior encounter? Can I simply ask the officer about it during cross? It's my belief that the prior encounter demonstrates that the officer <i>already knew</i> my name and address, and that the arrest for failure to ID was incidental to the officer's investigation into crimes for which he had no probable cause to believe I was responsible.

Anyway- the prosecution has made the contention that refusing to give a name at all is the same thing as giving a false name. That is obviously not a legally sound position to take. Nevertheless, it was enough to send this case to trial. So to be certain I can defend myself, I must dispute the existence of reasonable suspicion. Any help, advice, tips or warnings are all greatly appreciated.
**A: you're kidding right?
 
P

PrefersPrivacy

Guest
Kidding? No, I'm afraid I was quite serious. The big joke in this case is the charge.
 
H

hexeliebe

Guest
Since you're bound and determined to make this a serious exercise I at least hope you're going to get a good grade by listening.

First of all, quit relying on Brown. It's old and has been 'revamped' since 1979.

The following might be of interest to you.

U.S. Supreme Court
FLORIDA v. BOSTICK, 501 U.S. 429 (1991)
501 U.S. 429
FLORIDA v. BOSTICK
CERTIORARI TO THE SUPREME COURT OF FLORIDA

No. 89-1717

This opinion from U.S. Supreme Court UNITED STATES v. SOKOLOW, 490 U.S. 1 (1989) 490 U.S. 1 UNITED STATES v. SOKOLOW CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 87-1295.

"(a) Under Terry v. Ohio, 392 U.S. 1, 30 , the police can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if they lack probable cause under the Fourth Amendment. Reasonable suspicion entails some minimal level of objective justification for making a stop - that is, something more than an inchoate and unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause. P. 7. "


And finally:

U.S. Supreme Court
KOLENDER v. LAWSON, 461 U.S. 352 (1983)
461 U.S. 352
KOLENDER, CHIEF OF POLICE OF SAN DIEGO, ET AL. v. LAWSON
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 81-1320.

Argued November 8, 1982
Decided May 2, 1983

Now, having given you your homework assignment, here is what is going to happen. You are going to be found "GUILTY", you will post an appeal bond (exactly the amount of the fine plus court costs) you will then be free to appeal this to the next highest court all the way to the U.S. Supreme Court which will remand it back from whence it came because the issue has already been decided.

Then, $1,000s of dollars later, and countless missed days from work, you'll win.
 
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PrefersPrivacy

Guest
Your prediction may be accurate, but what's been done is done and I'll deal with these things as they come. Right now I'm focused on the trial, not the (possible) appeal.

I'll be interested to see if the policeman shows up, and if he does, exactly how he plans to support the arrest.

_____________________________
Texas Penal Code section 38.02 (relevant parts A and B):

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

(1) lawfully arrested the person;

(2) lawfully detained the person
___________________________

I NEVER gave a false name, the arresting officer's report doesn't claim so- the prosecutor made it up. Even if I was 'lawfully detained,' (I'm not stipulating that) refusing to identify myself was not a crime under 38.02, A or B.

The cases you cited are already part of my defense. However, IANAL so my real worry is being able to communicate my position to the judge. Thanks.
 
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PrefersPrivacy

Guest
Arresting officer didn't show up. Thanks for your help.
 

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