Was this arrest legal? Or a violation of the woman's rights?

[philip964]

http://www.khou.com/news/crime/A-womans ... 94581.html" onclick="window.open(this.href);return false;

I certainly understand why the officer's were following up on her boyfriends arrest. But was this arrest legal, are you required to identify yourself? What is the law?

Last time I police officer asked me my name I told him right away. I didn't get arrested as I was only photographing on a public street, but I wondered what would have happened if I had said, "I do not have to identify myself. "

[JJVP]

http://www.khou.com/news/crime/A-womans ... 94581.html

I certainly understand why the officer's were following up on her boyfriends arrest. But was this arrest legal, are you required to identify yourself? What is the law?

Last time I police officer asked me my name I told him right away. I didn't get arrested as I was only photographing on a public street, but I wondered what would have happened if I had said, "I do not have to identify myself. "

KHOU 11 News’ legal expert, who watched the video for himself, reached a different conclusion.
“I think the officers were out of line,” said attorney Gerald Treece. “There isn’t a ‘you didn’t identify yourself’ exception to enter your home and search it. There just isn’t that.”

[texanjoker]

That is a good one that made me re-read the law on it. The shortened version is that a person commits a crime if they are arrested, lawfully detained or witnessed a crime and fail to ID. In this case they were contacting her because a witness alleged the robber had been at the home in a stolen car a few days before. It would be reasonable to detain her to obtain her name. I don't know what they did, but I would have tried computer work first prior to going to the house. I would want to know history of people believed to be in the house as this could be a safety issue, or you might find active arrest warrants, ect. The video doesn't show them making entry, but it is clear the deputy appears to be within the threshold of the home. At what point did he enter? That part is not clear. Sometimes you just need to leave, and do more investigative work to look for the name and return with a search warrant if you can articulate the PC. If they did an illegal search, anything they found in the home will be tossed out.

http://codes.lp.findlaw.com/txstatutes/PE/8/38/38.02" onclick="window.open(this.href);return false;

[jocat54]

Not info for me to make a decision on that one.

Sure would like to see what occurred before the video started.

[gigag04]

There are two common ways to get to fail to ID - Refusal, and false info...(the third is an enhancement of false info if the subject is wanted)

Refusal can ONLY be charged if the person is under arrest for something other than Fail to ID. A good example is a drunk is arrested for fighting or whatever, and refused to give his name/address/dob to the arresting office. This is a class C violation.

False info occurs when a person is detained, and gives a fake name, address, or DOB. Usually this occurs when a person has warrants and is hiding their identify. I encountered it alot during traffic stops and consent contacts in high narcotics areas. I could only charge it, if I developed a valid detention such as involvement in potential narcotics activity (hand to hand transactions, flagging cars down, etc), OR if I had a valid stop light no headlight on a bike or walking in the street where sidewalk provided.

I'm not sure which route the deputies went, but I see the case getting kicked, unfortunately. If her thug boyfriend was committing robberies and she was helping him, she is a thug too. This isn't an excuse for a weak arrest though - do your homework and make it stick. That said, I'm not sure of the details that occurred leading up to the video and wether a valid detention could be articulated or the woman was arrested for something in addition to fail to ID.

Code: Select all

Sec. 38.02.  FAILURE TO IDENTIFY.  (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;  or
(3)  requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
(c)  Except as provided by Subsections (d) and (e), an offense under this section is:
(1)  a Class C misdemeanor if the offense is committed under Subsection (a);  or
(2)  a Class B misdemeanor if the offense is committed under Subsection (b).
(d)  If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is:
(1)  a Class B misdemeanor if the offense is committed under Subsection (a);  or
(2)  a Class A misdemeanor if the offense is committed under Subsection (b).
(e)  If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.  Amended by Acts 1987, 70th Leg., ch. 869, Sec. 1, eff. Sept. 1, 1987.  Acts 1991, 72nd Leg., ch. 821, Sec. 1, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994;  Acts 2003, 78th Leg., ch. 1009, Sec. 1, eff. Sept. 1, 2003.

[chasfm11]

That is a good one that made me re-read the law on it. The shortened version is that a person commits a crime if they are arrested, lawfully detained or witnessed a crime and fail to ID. In this case they were contacting her because a witness alleged the robber had been at the home in a stolen car a few days before. It would be reasonable to detain her to obtain her name. I don't know what they did, but I would have tried computer work first prior to going to the house. I would want to know history of people believed to be in the house as this could be a safety issue, or you might find active arrest warrants, ect. The video doesn't show them making entry, but it is clear the deputy appears to be within the threshold of the home. At what point did he enter? That part is not clear. Sometimes you just need to leave, and do more investigative work to look for the name and return with a search warrant if you can articulate the PC. If they did an illegal search, anything they found in the home will be tossed out.

http://codes.lp.findlaw.com/txstatutes/PE/8/38/38.02" onclick="window.open(this.href);return false;

I'm a bit confused here. The description says "are arrested". I don't think the woman was arrested prior to failure to ID. It also says "detained". Don't you have to have PC to detain someone, particularly if you entered their home to do it? That part "witnessed a crime" is the part where I'm confused. If the robber/boyfriend did come to the apartment, that isn't the same as the woman being at the scene of one of his crimes and watching it go down. So based on the information provided, I don't see that the officer's actions met any one of those tests. What am I missing?

This is one of those cases where simply telling the officer her correct name might have avoided some of the hassle. Then again, if the deputies were already overreaching in the situation, it might not have had any effect on the outcome.

[EEllis]

There is some mixed info going around which makes it hard for me to make a call here. My understanding from another source is she was actually charged with giving a false name not refusing to give her name so I have to wonder. The initial entry is important, if she didn't refuse the initial entry and police have PC then they have the right to further investigate for a period of time. There is no way to tell from this if that is the case. If she was a witness then I think they were probably out of line. If she was a suspect and they had PC and she allowed them in at first then she is out of luck. Can't tell by the vid which it might be. IMHO

[texanjoker]

That is a good one that made me re-read the law on it. The shortened version is that a person commits a crime if they are arrested, lawfully detained or witnessed a crime and fail to ID. In this case they were contacting her because a witness alleged the robber had been at the home in a stolen car a few days before. It would be reasonable to detain her to obtain her name. I don't know what they did, but I would have tried computer work first prior to going to the house. I would want to know history of people believed to be in the house as this could be a safety issue, or you might find active arrest warrants, ect. The video doesn't show them making entry, but it is clear the deputy appears to be within the threshold of the home. At what point did he enter? That part is not clear. Sometimes you just need to leave, and do more investigative work to look for the name and return with a search warrant if you can articulate the PC. If they did an illegal search, anything they found in the home will be tossed out.

http://codes.lp.findlaw.com/txstatutes/PE/8/38/38.02" onclick="window.open(this.href);return false;

I'm a bit confused here. The description says "are arrested". I don't think the woman was arrested prior to failure to ID. It also says "detained". Don't you have to have PC to detain someone, particularly if you entered their home to do it? That part "witnessed a crime" is the part where I'm confused. If the robber/boyfriend did come to the apartment, that isn't the same as the woman being at the scene of one of his crimes and watching it go down. So based on the information provided, I don't see that the officer's actions met any one of those tests. What am I missing?

This is one of those cases where simply telling the officer her correct name might have avoided some of the hassle. Then again, if the deputies were already overreaching in the situation, it might not have had any effect on the outcome.

You only need reasonable suspicion to detain. I can see if they had info about her being a possible accomplice, ect that they could detain. That is a lower standard then probable cause that is needed for an arrest. Entering the house before hand is subject to question and the video doesn't show what transpired on that part.

[Jumping Frog]

The shortened version is that a person commits a crime if they are arrested, lawfully detained or witnessed a crime and fail to ID.

http://codes.lp.findlaw.com/txstatutes/PE/8/38/38.02" onclick="window.open(this.href);return false;

Two small -- but key -- clarifications here, as stated in the statute you quoted.

First, if I am lawfully detained or witnessed a crime, I am not required to provide identification. I can only be charged if I provide false information.

Second, (leaving CHL issues aside) if I am arrested, I am not required to provide some form of identification. The statute requires me to identify myself by telling you my name, address, and date of birth, but it does not require me to provide some form of identification (driver's license, etc.).

[gigag04]

The shortened version is that a person commits a crime if they are arrested, lawfully detained or witnessed a crime and fail to ID.

http://codes.lp.findlaw.com/txstatutes/PE/8/38/38.02" onclick="window.open(this.href);return false;

Two small -- but key -- clarifications here, as stated in the statute you quoted.

First, if I am lawfully detained or witnessed a crime, I am not required to provide identification. I can only be charged if I provide false information.

Second, (leaving CHL issues aside) if I am arrested, I am not required to provide some form of identification. The statute requires me to identify myself by telling you my name, address, and date of birth, but it does not require me to provide some form of identification (driver's license, etc.).

This ^

Detention only requires one to tell the truth IF they choose to identify themselves.

Once arrested, one must give name, address, DOB

[sugar land dave]

Sec. 38.02. Failure to Identify.
(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; or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
(c) Except as provided by Subsections (d) and (e), an offense under this section is:
(1) a Class C misdemeanor if the offense is committed under Subsection (a); or
(2) a Class B misdemeanor if the offense is committed under Subsection (b).
(d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is:
(1) a Class B misdemeanor if the offense is committed under Subsection (a); or
(2) a Class A misdemeanor if the offense is committed under Subsection (b).
(e) If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 869, Sec. 1, eff. Sept. 1, 1987. Acts 1991, 72nd Leg., ch. 821, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1009, Sec. 1, eff. Sept. 1, 2003.

[EEllis]

I think it's clear he could require her name DOB and address in this situation if the people were outside the residence. She was without a doubt either a witness or a participant in multiple felonies so that isn't the real question. It is how they entered that matter. The officer had no right to enter if she refused entry. If he was initially granted entry and then the woman changed her mind I have no idea what the law says. I expect that at that time,in the middle of a RS interview, in a place where they were legally granted access, they most likely have the authority to conclude that interview before leaving. I think she wanted to stuff the cat back in the bag by ordering the cops out when the "interview" got to much she should've just given her name and DOB .

[mojo84]

I think it's clear he could require her name DOB and address in this situation if the people were outside the residence. She was without a doubt either a witness or a participant in multiple felonies so that isn't the real question. It is how they entered that matter. The officer had no right to enter if she refused entry. If he was initially granted entry and then the woman changed her mind I have no idea what the law says. I expect that at that time,in the middle of a RS interview, in a place where they were legally granted access, they most likely have the authority to conclude that interview before leaving. I think she wanted to stuff the cat back in the bag by ordering the cops out when the "interview" got to much she should've just given her name and DOB .

You appear to be arguing for the sake of arguing. You said "IF the people were outside the residence". What gives them the right to demand and require a citizen to identify themselves and show papers/ID even if they are outside? Plus, just because she's out on the front porch does not mean they automatically have the right to enter her apartment.

How do you know "without" a doubt she was either a "witness or a participant in multiple felonies"?

What you "expect at that time" is of no consequence. The only thing that matters is what actually happened at that time. How do you know they were "in a place where they were legally granted access"? Your last sentence is a whole lot of assumption and speculation.

Maybe she did let them in, maybe she didn't. I don't know that we can know that based on the video. I also don't see anything in the video that proves she is a criminal or suspect in a crime. I also don't believe the representative for the police department that said she must identify herself is correct in his interpretation of the law.

If you are going to argue and try to come across as some learned expert, it would help for your arguments to not be based on so many assumptions, speculation and "IF".

[EEllis]

I think it's clear he could require her name DOB and address in this situation if the people were outside the residence. She was without a doubt either a witness or a participant in multiple felonies so that isn't the real question. It is how they entered that matter. The officer had no right to enter if she refused entry. If he was initially granted entry and then the woman changed her mind I have no idea what the law says. I expect that at that time,in the middle of a RS interview, in a place where they were legally granted access, they most likely have the authority to conclude that interview before leaving. I think she wanted to stuff the cat back in the bag by ordering the cops out when the "interview" got to much she should've just given her name and DOB .

You appear to be arguing for the sake of arguing. You said "IF the people were outside the residence". What gives them the right to demand and require a citizen to identify themselves and show papers/ID even if they are outside? Plus, just because she's out on the front porch does not mean they automatically have the right to enter her apartment.

How do you know "without" a doubt she was either a "witness or a participant in multiple felonies"?

What you "expect at that time" is of no consequence. The only thing that matters is what actually happened at that time. How do you know they were "in a place where they were legally granted access"? Your last sentence is a whole lot of assumption and speculation.

Maybe she did let them in, maybe she didn't. I don't know that we can know that based on the video. I also don't see anything in the video that proves she is a criminal or suspect in a crime. I also don't believe the representative for the police department that said she must identify herself is correct in his interpretation of the law.

If you are going to argue and try to come across as some learned expert, it would help for your arguments to not be based on so many assumptions, speculation and "IF".

Well any argument about this is based on speculation because there just isn't enough info to say either way. But I do think it is very clear that the woman is, at the min, a witness to a crime. Her boyfriend was in and out of the area with stolen property and driving the car used during his crimes. To say that there is RS that the girl saw him in a vehicle that was reported during a crime is pretty obvious. Heck the police can even be wrong it doesn't matter just if their belief is reasonable and it's hard to see how anyone could twist things otherwise. Police have the right to ask, and it's against the law in Texas to refuse to identify, if you are a witness or suspect in a crime. So if they were approached outside of the home the police with RS could charge her if she refused to give her name and DOB. The only aspect of the case that is even close to controversial is because it happened inside her home. I don't know enough on Texas law to say but I was wondering if the officers had been invited in wouldn't the RS requirement be enough to charge. I'm sure if she told them from the start that they could not enter and that she would not speak to them that they would not of had cause to arrest or enter her home. So for me the big question was what does Texas law say and depending on the law how did they gain entry. I speculated because otherwise there is nothing to talk about and nothing to explore.

Now what the heck is with the angry responses and insulting crap when people post opinions that run contrary to what some hold? Is this that kind of board? Why have or ask questions if any who post contrary to what some believe get subjected to this crap?

[gigag04]

Police have the right to ask, and it's against the law in Texas to refuse to identify, if you are a witness or suspect in a crime.

Wrong. You are missing some key parts of the statute that I have touched on twice in this thread.