Posted by Ilya Somin:
Of Police Officers and IDs:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1180059702
Co-blogger Jonathan Adler writes:
I have no problem with the idea that a seizure occurs when a
reasonable person would believe that he or she is not free to walk
away. My problem is that the "reasonable person" some judges
imagine seems far too willing to question or challenge police
authority. I sincerely doubt that most "reasonable" Americans
unschooled in criminal procedure feel free to casually deny police
requests, let alone disregard police inquiries entirely and just
walk away. This may be how judges interact with police officers,
but in this regard I do not believe the average judge adequately
represents the reasonable person.
I think that this is exactly right. When I clerked on the US Court of
Appeals for the Fifth Circuit , I saw numerous cases where citizens
allowed police to conduct searches (and find incriminating evidence!)
in situations where legal precedent allowed them to refuse. Moreover,
if my own experience is at all typical, even some employees of the
legal system are reluctant to "casually deny police requests."
Back in 2001, when I was clerking for the Fifth Circuit in Houston, I
was pulled over by a police officer for a minor traffic violation (I
thought I wasn't doing anything wrong, but the officer had a different
view, and perhaps he was right). He asked me to show him my license,
which I did. Unfortunately, since I was only living in Texas
temporarily, I was still using my Massachusetts license. This wasn't
good enough for the officer. "Son," he said, "you have to show me a
Texas ID."
I suspected that it was not legal for him to require a Texas ID. After
all, what happens if he stops a driver from another state who was just
passing through? Would he be required to have a Texas ID as well?
Nonetheless, I was VERY reluctant to get into an argument with a cop;
after all, if I pissed him off, he could saddle me with a more
expensive ticket, or worse. Instead, I showed him the closest thing I
had to a Texas ID: my ID from the Fifth Circuit. "You work for the
Court of Appeals?" the officer asked skeptically. Such a
suspicious-looking character couldn't possibly be an employee of the
criminal justice system! "Tell me the address of the federal court
house," he demanded. After I told the officer the correct address, it
dawned on him that I really was a court employee, and not a devious
impostor trying to get away with traffic violations. Right away, the
tone of the conversation changed, and I was let off with a mild
warning (whereas before it seemed fairly clear that he was going to
write me a ticket).
The episode shows the favoritism that police sometimes extend to
fellow law enforcement employees. But it also suggests that even
lawyers and others better acquainted with the law than the average
person might be reluctant to challenge police demands - whether those
demands are legal or not.
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