Wednesday, December 28, 2005

Ohio Patriot Act's "failure to disclose one's personal information" provision utilizes a Supreme Court precedent

Fellow S.O.B Alliance bloggers Viking Spirit and Weapons of Mass Discussion weigh in with opposing views on a specific provision (Sec. 2921.29) in the Ohio Patriot Act requiring an individual to provide information to a peace officer is specific situations involving public safety.
(ed. It's good to see that the Alliance is not of one mind and contributes to public policy debates even amongst itself.)

A deeper reading of the provision (specifically the Bill Analysis of the version passed by the Senate) shows that the legislation has Supreme Court precedent in support of the specific provision:

Offense of "failure to disclose one's personal information"

The bill prohibits a person who is in a public place from refusing to disclose the person's name, address, or date of birth, when requested by a law enforcement officer who reasonably suspects that either: (1) the person is committing, has committed, or is about to commit a criminal offense, or (2) the person witnessed any of the following: (a) an "offense of violence" (see "Definitions of terms used in the bill," below) that would constitute a felony under Ohio law (see COMMENT 3), (b) a felony offense that causes or results in, or creates a substantial risk of, serious physical harm to another person or to property, (c) any attempt or conspiracy to commit, or complicity in committing, any offense identified in clause (2)(a) or (b), or (d) any conduct reasonably indicating that any offense identified in clause (2)(a) or (b) or any attempt, conspiracy, or complicity described in clause (2)(c) has been, is being, or is about to be committed. A violation of this provision is the offense of "failure to disclose one's personal information," a misdemeanor of the fourth degree.

The bill states that nothing in the provisions described in the preceding paragraph requires a person to answer any questions beyond that person's name, address, or date of birth and that nothing in those provisions authorizes a law enforcement officer to arrest a person for not providing any information beyond that person's name, address, or date of birth. (R.C. 2921.29.)

Comment 3 referred to above is as follows:

3. In Hiibel v. Sixth Judicial District Court of Nevada (2004), ___ U.S. ___, 124 S. Ct. 2451, 2004 U.S. LEXIS 4385, the U.S. Supreme Court upheld a conviction under a Nevada "stop and identify" statute. The Nevada statute, NRS § 171.123, provides that:

1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.

2. Any peace officer may detain any person the officer encounters under circumstances which reasonably indicate that the person has violated or is violating the conditions of his parole or probation.

3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.

4. A person must not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the immediate vicinity of the place where the detention was first effected, unless the person is arrested.

Another Nevada statute, NRS § 199.280, prohibits a person from willfully resisting, delaying, or obstructing a public officer in discharging or attempting to discharge any legal duty of the officer's office.

Briefly, in Hiibel, a police officer responding to a call reporting that a man assaulted a woman found Hiibel (the defendant) standing outside a parked truck with a woman inside the truck. The officer asked for the defendant's identification 11 times and was refused each time, and the officer arrested the defendant. The defendant was convicted under NRS § 199.280 for obstructing the officer in carrying out his duties under NRS § 171.123. The Supreme Court determined that: (a) the stop of the defendant (referred to as a "Terry stop"), the request for identification, and the State's requirement of a response did not contravene the guarantees of the Fourth Amendment, because the request for identity had an immediate relation to the purpose, rationale, and practical demands of the Terry stop and because the request for identification was reasonably related in scope to the circumstances that justified the Terry stop, and (b) the defendant's conviction did not violate the Fifth Amendment's prohibition on compelled self-incrimination, because disclosure of his name presented no reasonable danger of incrimination.


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