{"id":8934,"date":"2013-07-31T10:02:36","date_gmt":"2013-06-24T00:55:37","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-06-23T12:36:59","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=8934","title":{"rendered":"Cal.2: Merely asking for one\u2019s ID, without demanding it, is not a seizure of the person"},"content":{"rendered":"

Defendant was already stopped and officers approached him because he resembled a robbery suspect from one that just occurred and nearby. Merely asking for one\u2019s ID, without demanding it, is not a seizure of the person because there was no effort to ask for it back. [Probably because he thought it had been seized.] People v. Leath<\/a>, 217 Cal. App. 4th 344, 158 Cal. Rptr. 3d 449 (2d Dist. 2013):<\/p>\n

<\/p>\n

Each of the cases discussed above concludes that the Fourth Amendment is not implicated when a police officer asks to see an individual’s identification card. They differ, however, on the constitutional implications if the individual complies with the request. Castaneda holds that a detention occurs once the individual relinquishes his or her identification card because, having done so, he or she would not feel free to leave. Jenkins and Lopez reach a different result, concluding that there is no detention so long as the card is voluntarily relinquished.<\/p>\n

We think Jenkins and Lopez articulate the better rule. As one court has said, the Castaneda holding essentially \u201ceviscerate[s] the rule that a law enforcement officer may ask an individual for identification without having any suspicion that he or she has committed a crime, because as soon as the individual complies with the constitutional request, an unconstitutional seizure will have occurred.\u201d (Harrison v. City of Oakland (N.D.Cal. 2008) 2008 U.S. Dist. LEXIS 95179, *13.) We agree: The right to ask an individual for identification in the absence of probable cause is meaningless if the officer needs probable cause to accept the individual’s proof of identification. Moreover, we agree with the analysis of the Fourth Circuit Court of Appeals, that an individual’s voluntary cooperation with an officer’s request for identification does not convert the request into a detention because the individual is \u201cfree at this point to request that his [identification] be returned and to leave the scene.\u201d (United States v. Analla (4th Cir. 1992) 975 F.2d 119, 124, quoted in People v. Bouser (1994) 26 Cal.App.4th 1280, 1285 [32 Cal. Rptr. 2d 163].) We thus adopt the rule articulated in Jenkins and Lopez and hold that a voluntary relinquishment of one’s identification card does not constitute a seizure as long as the encounter is consensual under the totality of the circumstances.<\/p>\n

In the present case, the trial court concluded that defendant voluntarily complied with the officers’ request for identification. This conclusion is supported by substantial evidence. The officers did not accuse defendant of any illegal activity when they first addressed him\u2014they merely told him his car door was open and asked if the car belonged to him. They then asked for\u2014but did not demand\u2014identification. …<\/p><\/blockquote>\n

This borders on the ridiculous. This is another example of an appellate court detached from the real world of criminal cases. How is asking not understood as a command?<\/p>\n

Back to blog<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-8934","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/8934","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=8934"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/8934\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8934"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8934"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8934"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}