RichardKenner

No, it was the last two sentences of the majority opinion.

Yes, it does! In the absence of any definition of a term in the statutes, the courts often look to dictionaries because the general principle is that word have their plain meaning unless otherwise defined.

I don't believe that it's at all certain that the Concealing Identity statue is a "stop and identify law". I'm aware of at least one web site that considers it that (and I agree that Hiibel lists it as such), but that's not what the plain language of the statute says.

Moreover, Hiibel is inconsistent with other Fifth Amendment decisions on one important issue: it speaks as if the Fifth Amendment many only be cited if the particular answer that a person would give to a question would incriminate them, but a more accurate statement is that if there exists an answer that might incriminate the person, they may refuse to answer, whether or not that would be their answer. Were that not the case, you have the absurd result that you couldn't prove that you were able to assert the privilege without first implicating yourself as part of that proof!

Here, the police have Phil's boarding pass. Whether he gave it to them or not is irrelevant to the argument below. Now that they have it, there's the question of whether he's "concealing" his identity (meaning presenting a false identity). That would be a crime.

That's a very different situation from Hiibel. There, they were investigating an assault. Hiibel was stopped in connection with that assault (which, I believe, he did not commit). His name was not relevant to whether he commited that assault. Thus, there was no valid way in which giving his name could incriminate him in the assult.

Here, the stop is because of an alleged presentation of fraudulent ID (or, at the least, an issue involving ID). Hiibel doesn't apply here because his identity is relevant to the purpose of the stop and you can't make the same argument that his name couldn't incriminate him for that charge.

Also note that if you're correct that Phil was doing this to "Flex His Rights", then he most certainly didn't violate that statute since it requires "intent to obstruct the due execution of the law or with intent to intimidate, hinder or interrupt any public officer or any other person". Quite the contrary, the intent here was to "Flex His Rights"!

sethb

That's why I guarantee reservations with AmEx: if a hotel tries to walk me despite my presenting the AmEx card I guaranteed the reservation with, a phone call to AmEx will (well, always has, so far) convinced the hotel that they'd prefer letting me have a room to losing the ability to take AmEx.

Worst case, AmEx will find and pay for an alternate room. Also, people I know have seen them scraping the "We take AmEx" decals off hotels when a hotel decided not to honor AmEx guarantees.

Ari

This is the exact reason Phil should have verbally identified himself-- because a debate over the NM law is really not something he needed to get into unless that was a goal. This had to do with the TSA and now it is also about some NM law, something I doubt Phil had any interest in to begin with.

The issues were taking photos and non-presentation of ID at the checkpoint-- now there is an issue in there that might result in a conviction. This just confuses things.

Rogi

Don't mean to side track, but is this gurantee valid on a hotel purchased with an Amex? (any Amex)

greentips

Ditto. Mine was a rental car company at PHX. Rental agent needed DL (reasonable since I was renting a car.) CC was held while I loaded the car. Numbers were copied along with DL info. Next, I get a call from CC company asking if I booked a flight for travel two days later from Ghana to London. Nope says I. Traveler did get caught, and he had the audacity to buy travel insurance on my CC with complete information which was mailed to my house. Now, I use my business address for car rentals. Don't know what they do to crooks in Ghana, but I was asked to forward the documents to CC company for forwarding to law enforcement. What if it was a terrorist operation using my ID?

AngryMiller

Had the bank account cleaned out several years ago when I foolishly gave my debit card to a hotel employee who insisted on having it for "incidentals" (i.e. long distance phone calls, room service, etc) that I never, ever use. An observant person at BOA called the wife, reversed the charges and took care of everything. Went back there a couple years later and had a talk with the manager and police department. Manager danced around a bit and then opened up once it was established I was talking about an employee they fired for doing the very same thing. Hotels get the corporate CC for lodging and nothing else. Coworkers had charges made to their CC after surrendering it for the same reason (different hotel) which resulted in the travel agency running it through hotel corporate and having that chain pulled from approved list of hotels.

Ari

That is the question-- the defense will likely portray the police action as being vindictive-- this will bolster that position.

I can't think of a single reason why it wouldn't be admitted..

Actually, I distinctly recall those last two sentences as those of the majority opinion-- leaving the issue open to some future "as applied" challenge-- but upholding the law as a facial matter. I have verified that from your link. The last two sentences of the majority opinion are:

I also distinctly recall the dissent having a problem with that as a practical. I read the dissent, and sure enough, my recollection was, again, entirely correct. From your link, a part Justice Breyer's dissent:

As you can see, not only is what RichardKenner posted part of the majority opinion, but the dissent actually had a problem with it.

I can think of two examples in which an "as applied" challenge might fly:

(1) Take a stop and identify statute that requires name, DOB and address (I am not going to go looking for one, but I find it likely that one of the almost-half of the states in the Union has one that requires DOB-- it makes sense). A suspect is arrested for underage drinking. Providing his DOB to the officer would be both testimonial and incriminarory in nature, as it is an element of the crime. For most cases, DOB wouldn't be an issue, but "as applied" to this hypothetical, it might very well violate the 5th Amendment to compel it.

(2) Next, take fraud. (I believe this might have been tried and rejected since Hiibel), but this is an example of the exact type of challenge the Court did "not resolve" in Hiibel; it may be resolved now. Someone arrested for using a fake ID to cash a check would arguably have a 5th Amentment interest in keeping his true identity secret since his identity not being that on the ID would be an element of the crime.

That said, I see nothing in Phil's case that would be an issue.

Firebug4

You are both correct. That is what happens when I am reading without sleep. I will have to find the cases when I am back at work or perhaps will ask why I am here (currently in training). I know that their have been cases where individuals have refused to identify to Law Enforcement due to their knowledge that they had outstanding warrants. They attempted the 5th amendment defense and the courts ruled that giving your name to Law Enforcement was not self-incriminating. This is why that even after Miranda has been given and the suspect has invoked his rights the officers can still ask biometric information such as name, DOB, height, weight etc. The courts have also ruled that blood samples, hair samples DNA etc. are not protected under the 5th amendment I find it surprising that your name would be protected. I will do the research but I apologize that it might take sometime. I am in training for two weeks then I am moving.

FB

Ari

I believe everything you say above is 100% correct.

I imagine the bank fraud thing has likely been tried before-- I imagine it failed, but can't find one right now. I also haven't looked real hard. Fofana actually had that issue come up and I will have to see how they ruled. I haven't seen it hashed out by the Supreme Court yet, but maybe I missed it.

My other example (1) probably hasn't been tried yet.

What are you training on and where are you moving?

I'll attempt the research later.

RichardKenner

For the record, I do as well.

Boggie Dog

Wondering if the SCOTUS ruling today regarding Miranda will have any bearing on Phil's case?

N1120A

This isn't a Miranda case. This deals with a pre-Brown stop and identify ordinance.

Combat Medic

Tell me how crazy I am if you would. I was reading the fifth amendment and it says "nor shall private property be taken for public use, without just compensation" Could it be argued that blood or DNA is being taken for public use without just compensation?

-Mike

RichardKenner

No. You'd need to show that the amount of blood taken had a value in the case of blood. For DNA, only microscopic amounts are "taken", so I don't see how you could even potentially make that argument.

pmocek

In Officer Dilley's complaint, he accuses me of violating "30-20-1, 12-2-6, 12-2-19, 12-2-3 NMSA 1978".

Best I can tell, it seems that I was not charged with NMRC 30-22-3: Concealing identity, but with:

1. New Mexico Revised Code 30-20-1: Disorderly conduct
2. Albuquerque Code of Ordinances 12-2-16: Concealing identity
3. Albuquerque Code of Ordinances 12-2-19: Resisting, obstructing, or refusing to obey an officer
4. Albuquerque Code of Ordinances 12-2-3: Criminal trespass