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The following post was shared with the CopBlock Network by John-Henry Hill, M.D., Ph.D., via the CopBlock.org submissions page.

Are You Required To Show ID or Answer Questions To Police and Other Government Agents Upon Demand? – by John-Henry Hill, M.D., Ph.D. – October 9, 2013

“They must find it difficult, those who have taken authority as truth, rather than truth as authority.” – Gerald Massey

“He, who would be deceived, let him.” – ancient Roman maxim of law

“We have people in government who should not be allowed to play with matches.” — Will Rogers

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“It has long been established that the loss of constitutional freedoms, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).” — CANEISHA MILLS, ET AL., v. DISTRICT OF COLUMBIA, No. 08-7127, U.S. Court of Appeals for the District of Columbia, July 10, 2009

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Are You Required To Show ID or Answer Questions To Police and Other Government Agents Upon Demand?

For showing an ID: The answer is NO, except ONLY under extremely limited circumstances (detention with “reasonable, articulable suspicion” during a Terry stop” OR when being detained under “probable cause” for the commission of a crime.

For answering questions: Absolutely NO, NEVER! You are NOT required to answer any questions or to speak at all. (Further, you are NOT required to take any “tests” – such as a so-called “field sobriety test” re: alcohol consumption or an “alcohol breath analyzer test.” Further, you can NOT be punished for your refusal. However, the U.S. Supreme Court recently ruled that you are required to clearly and explicitly state that you “invoke your right to remain silent”, your “5th Amendment guarantee against self-incrimination, or words to that effect.

Below are some U.S. Supreme Court decisions which affirm your right to NOT show an ID (or otherwise identify yourself) or answer any questions.

  • ”Texas may not criminalize by statute or practice conduct that is Constitutionally protected. — Coates v. Cincinnati, 402 U.S. 611, 616 (1971)
  • 21. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) “a statute which serves as “merely the cloak” for arrests which would not otherwise be lawful is a pernicious affront to the Fourth Amendment and cannot be upheld”
  • “Where rights as secured by the Constitution are involved, there can be no rule making or legislation which will abrogate them.” Miranda v. Ariz., 384 U.S. 436 at 491 (1966).
    Thus: All State, county, city or town STATUTES (regulations, ordinances, procedure/practice, etc), that “criminalize” a Constitutionally-protected right, are VOID and of NO LEGAL FORCE !!!!!!
  • Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) the Fifth Amendment “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings

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Some Constitutional protections and U.S. Supreme Court rulings on the matter.

  • Brown v. Texas, 443 U.S. 47 (1979)
    In 1979, the U.S. Supreme Court ruled on Brown v. Texas, a case where a man in Texas refused to show police ID because there was no probable cause. The court noted “he was arrested for violation of Tex.Penal Code Ann., Tit. 8, § 38.02(a) (1974), which makes it a criminal act for a person to refuse to give his name and address to an officer “who has lawfully stopped him and requested the information.” However, the court reversed his conviction:
    [Even if there is a STATE statute, Police need “reasonable suspicion” BEFORE they can demand you show ID or identify yourself.]
    Held: The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be “reasonable.” Cf. Terry v. Ohio, 392 U. S. 1; United States v. Brignoni-Ponce, 422 U. S. 873. The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society’s legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, 440 U. S. 648. Here, the State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, and the officers’ actions were not justified on the ground that they had a reasonable suspicion, based on objective facts, that he was involved in criminal activity. Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant’s right to personal security and privacy tilts in favor of freedom from police interference.”
    The court concluded “The application of Tex.Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed.” Brown v. Texas, 443 U.S. 47 (1979)
  • Berkemer v. McCarty, 468 U.S. 420 (1984) an individual stopped pursuant to Terry is not “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), precisely because the individual remains free to ignore or otherwise decline to respond to an officer’s questions.
  • Florida v. Royer, 460 U.S. 491, 500 (1983) “The person approached, however, need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way” Id. at 497-98.
  • [http://supreme.justia.com/cases/federal/us/443/47/case.html]
  • Terry v. Ohio, 392 U.S. 1 (1968)
    In the 1968 case of Terry v. Ohio, the Court held that police could “stop and frisk” a suspect on “reasonable suspicion” that he had already committed, or was about to commit, a crime.
  • The right of privacy may not be intruded upon by the government absent probable cause, see Dunnaway v. New York, 442 U.S. 200, 208 (1979); indeed, it is the probable cause requirement that “safeguard[s] citizens from rash and unreasonable interferences with [their] privacy.” Brinegar v. United States, 338 U.S. 160, 176 (1949).
  • Florida v. Royer, 460 U.S. 491, 500 (1983) “The person approached, however, need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way” Id. at 497-98.
  • Illinois v. Wardlow, 528 U.S. 119, 125 (2000)
    “If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way.”
  • Brinegar v. United States – 338 U.S. 160 (1949) “The citizen who has given no good cause for believing he is engaged in [criminal] activity is entitled to proceed on his way without interference” (Page 338 U. S. 177)

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Constitutional Protections from Warrantless Searches and Compulsory ID

  1. In this case, there were no “exigent circumstances”, there was no “reasonable suspicion” that a crime had been committed or was about to occur; (1968 case of Terry v. Ohio) There were no grounds for a warrantless search or arrest, detainment, Terry stop, or for a demand for ID. Brown v. Texas 1979 held that absent reasonable suspicion of criminality, the police can not simply stop people and ask for their names.
  2. Brown v. Texas, 443 U.S. 47 (1979)
    “Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be “reasonable.” Cf. Terry v. Ohio, 392 U. S. 1; United States v. Brignoni-Ponce, 422 U. S. 873 (1975). The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society’s legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, 440 U. S. 648. Here, the State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, and the officers’ actions were not justified on the ground that they had a reasonable suspicion, based on objective facts, that he was involved in criminal activity. Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant’s right to personal security and privacy tilts in favor of freedom from police interference.”
    http://supreme.justia.com/cases/federal/us/443/47/case.html
  3. Terry v. Ohio, 392 U.S. 1 (1968)
    In the 1968 case of Terry v. Ohio, the Court held that police could “stop and frisk” a suspect on “reasonable suspicion” that he had already committed, or was about to commit, a crime.
  4. Miranda v. Arizona – 384 U.S. 436 (1966)
    https://supreme.justia.com/cases/federal/us/384/436/case.html
  5. The right of privacy may not be intruded upon by the government absent probable cause, see Dunnaway v. New York, 442 U.S. 200, 208 (1979); indeed, it is the probable cause requirement that “safeguard[s] citizens from rash and unreasonable interferences with [their] privacy.” Brinegar v. United States, 338 U.S. 160, 176 (1949).
  6. United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975) The government agents can not stop and search all vehicles; that is not reasonable under the Fourth Amendment
  7. The exception to the Fourth Amendment is an exceedingly narrow one, United States v. Place, 462 U.S. 696 (1983)
  8. Florida v. Royer, 460 U.S. 491, 500 (1983) “The person approached, however, need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way” Id. at 497-98.
  9. Failure to observe these limits converts a Terry encounter into a full-fledged arrest under the Fourth Amendment that can only be justified by probable cause. Royer, 460 U.S. at 1325; Dunaway, 442 U.S. at 216; Brignoni-Ponce, 422 U.S. at 881-82.
  10. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) the Fifth Amendment “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings”
  11. Haynes v. United States, 390 U.S. 85, 97 (1968)
  12. Illinois v. Wardlow, 528 U.S. 119, 125 (2000)
    “If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way.”
  13. Brinegar v. United States – 338 U.S. 160 (1949) “The citizen who has given no good cause for believing he is engaged in [criminal] activity is entitled to proceed on his way without interference” (Page 338 U. S. 177)
  14. Kolender v. Lawson, 461 U.S. 352, 369 (1983) probable cause, and nothing less, represents the point at which the interests of law enforcement justify subjecting an individual to any significant intrusion beyond that sanctioned in Terry. See also Kolender, 461 U.S. at 366-67 noting that states “cannot abridge this constitutional rule by making it a crime to refuse to answer police questions during a Terry encounter.”
  15. Texas may not criminalize by statute or practice conduct that is Constitutionally protected Coates v. Cincinnati, 402 U.S. 611, 616 (1971)
  16. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) “a statute which serves as “merely the cloak” for arrests which would not otherwise be lawful is a pernicious affront to the Fourth Amendment and cannot be upheld”
    Thus: All State, county, city or town statutes (regulations, ordinances, conduct, etc), that “criminalize” a Constitutionally-protected right, are VOID and of NO LEGAL FORCE !!!!!!
  17. Berkemer v. McCarty, 468 U.S. 420 (1984) an individual stopped pursuant to Terry is not “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), precisely because the individual remains free to ignore or otherwise decline to respond to an officer’s questions.
  18. Michigan v. DeFillippo, 443 U.S. 31, 40 (1979)
  19. Adams v. Williams, 407 U.S. 143 (1972)
  20. Camara v. Municipal Court, 387 U.S. 523, 534-35 (1967)
  21. United States v. Robinson, 414 U.S. 218, 227-28 (1973)
  22. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) “a statute which serves as “merely the cloak” for arrests which would not otherwise be lawful is a pernicious affront to the Fourth Amendment and cannot be upheld”
  23. In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), The issue was whether someone who had been lawfully subject to a Terry stop can also be required to provide his name to the police officer who stopped him. The justices answered yes (5-4) but all nine justices agreed that a person who is not behaving in a way that gives rise to an articulable suspicion of criminality may not be required to state his name or show identification. The Hiibel majority took care not to disturb precedents like Brown v. Texas.

BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE IN SUPPORT OF PETITIONER, Hiibel v. Nevada No. 03-5554

“Justice Brandeis famously observed that the Fourth Amendment to the United States Constitution embodies an individual’s “right to be left alone,”, an entitlement constituting the “most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 227 U..S. 438, 478 (1928) (Brandeis, J., dissenting). The Supreme Court has long held that the Fourth Amendment protects this “inestimable right of personal security,” Terry v. Ohio, 392 U.S. 1, 8-9 (1968), by prohibiting the search and seizure by the police of an individual’s person in the absence of probable cause. Florida v. Royer, 460 U.S. 491, 498 (1983).

In Terry v. Ohio, 392 U.S. 1, 8-9 (1968), the Court recognized a “limited exception to this general rule,” allowing a law enforcement officer to briefly detain a person on the street based upon a reasonable suspicion of criminal activity, and to frisk the person for concealed weapons. See also United States v. Sokolow, 490 U.S. 1, 17 (1989). “Because Terry represented a departure from the constitutional mandate of probable cause, this Court has maintained it as a narrowly defined exception defined solely by its underlying purpose. See Dunaway v. New York, 442 U.S. 200, 207-09 (1979). Thus, while Terry allows a police officer to “ask the detainee a moderate number of questions to determine his identity and try to obtain information confirming or dispelling the officer’s suspicions,” this Court has also held that the individual detained “is not obliged to respond” to such questions, and must be released unless his “answers provide the officer with probable cause to arrest him.” Berkemer v. McCarty, 468 U.S. 420 (1984)

“The Fourth Amendment expresses the recognition that the power to arrest is among the greatest intrusions on individual liberty; the social, legal, and human consequences of this power have thus led the court to refrain from unduly expanding the right of law enforcement officers to demand compliance from individuals briefly detained pursuant to the limited investigatory stops condoned in Terry.” Berkemer v. McCarty, 468 U.S. 420 (1984)

…”a statute that compels self-identification, and thereby disregards the Constitutionally significant distinction between reasonable suspicion and probable cause, represents an unjustified expansion of Terry and must be invalidated.” Berkemer v. McCarty, 468 U.S. 420 (1984)

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USSC Rulings re:BORDER PATROL Fixed-Site, Suspicionless Internal Checkpoints (NOT on the international border)

U.S. v. Martinez-Fuerte (USSC) – MOST IMPORTANT !!

“It is agreed that checkpoint stops are ‘seizures’ within the meaning of the Fourth Amendment.” (U.S. v. Martinez-Fuerte) Supreme Court required that these checkpoint seizures be limited to, “brief questioning” to inquire into immigration status (U.S. v. Martinez-Fuerte). Further, the courts have ruled that these checkpoints cannot be “catch all” checkpoints, that operate looking for any and all types of violations, but rather that they are limited to immigration status. Border Patrol internal, fixed-site (permanent) suspicionless checkpoints require the seizure to be brief and limited to inquiring into immigration status. The Supreme Court stated that “[A]ny further detention . . . must be based on consent or probable cause.” (U.S. v. Martinez-Fuerte).

Indianapolis v. Edmond (USSC)

“A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” (Indianapolis v. Edmond) In other words, if a government agent has articulable “reasonable suspicion” that a person has violated a law, they can seize that person in order to begin an investigation.

Florida v. Bostick (USSC)

What questions are individuals required to answer at these Border Patrol stops, if any? The answer is none. Cooperation during suspicionless checkpoints is not required. Individuals have a right to not answer questions, and there is no law that requires them to provide any identification. Further, cooperation with an investigation/inquiry is NOT required even in stops that are based on suspicion, so they are most certainly not required in a stop where there is no suspicion of wrongdoing. Still further, choosing not to cooperate with government actors at a suspicionless checkpoint, cannot be used against you as a basis for suspicion. The Supreme Court ruled, “We have consistently held that a refusal to cooperate…does not furnish the minimal level of objective justification needed for a detention or seizure.” (Florida v. Bostick) The Fifth Circuit that holds jurisdiction over the checkpoint in Uvalde, Texas agrees stating, “[I]t would make a mockery of the reasonable suspicion and probable cause requirements if citizens’ insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.” (United States v. Machuca-Barrera, 5th Cir. Appeals).

United States v. Machuca-Barrera (5th Appeals) – VERY IMPORTANT !!

Fifth Circuit Court of Appeals (which has jurisdiction over the checkpoint in Uvalde, Texas), a stop of “a couple of minutes” is “within the permissible duration of an immigration checkpoint stop (United States v. Machuca-Barrera).” That Circuit has also ruled that Border Patrol officers may “ask questions outside the scope of the stop,” ie questions that are not related to immigration status, but they may do so “only so long as such questions do not extend the duration of the stop (United States v. Machuca-Barrera, 5th Cir. Appeals).” The Fifth Circuit that holds jurisdiction over the checkpoint in Uvalde, Texas agrees stating, “[I]t would make a mockery of the reasonable suspicion and probable cause requirements if citizens’ insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.” (United States v. Machuca-Barrera, 5th Cir. Appeals). An individual does not have to cooperate with agents at these checkpoints, and after the “couple of minutes” required to “briefly inquire” into immigration status, agents who have developed no reasonable suspicion for any violation, must release the motorist in order to comply with the Fourth Amendment – even if the individual chose not to answer questions or cooperate.

The Fourth Amendment to the United States Constitution guarantees the people the right to be free from “unreasonable searches and seizures.” The United States Supreme Court stated, “It is agreed that checkpoint stops are ‘seizures’ within the meaning of the Fourth Amendment.” (U.S. v. Martinez-Fuerte). The reason the High Court maintained that these checkpoints are seizures, is because all traffic is required to stop at these checkpoints. As such, for the time a vehicle is stopped at the checkpoint, both it and its passengers have been “seized” by the government and cannot depart the checkpoint without permission from the government. The question then becomes, is that seizure reasonable or not?

The Supreme Court ruled that, “A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” (Indianapolis v. Edmond) In other words, if a government agent has articulable “reasonable suspicion” that a person has violated a law, they can seize that person in order to begin an investigation. This is the standard used, for example, when a police officer pulls over somebody speeding. They develop the suspicion through a radar gun or other mechanism, and can then make the individual stop and issue a citation, which then has to be proved in court. If a police officer pulls somebody over without suspicion that they have committed a crime then, according to the courts, they have conducted an unreasonable seizure and therefore violated the Fourth Amendment.

Border Patrol checkpoints not on the border are often referred to as suspicionless checkpoints. That is because all people have to stop and are seized, despite the lack of suspicion that any crime or violation has been committed. So while the Supreme Court has historically ruled such seizures a violation of the Fourth Amendment, the High Court did make an exception for these checkpoints. In doing so, however, they laid down specific parameters that must be followed for the seizure at these checkpoints to remain reasonable. Namely, the Supreme Court required that these checkpoint seizures be limited to, “brief questioning” to inquire into immigration status (U.S. v. Martinez-Fuerte).

Further, the courts have ruled that these checkpoints cannot be “catch all” checkpoints, that operate looking for any and all types of violations, but rather that they are limited to immigration status. Anybody who has much experience with these checkpoints knows they routinely stray outside these lines and are effectively in place to also look for drugs. Drug dogs are not gifted in the art of smelling citizenship (they’re also prone to false alerts especially when handled by a dishonest dog handler). But legally, these checkpoints are limited to briefly inquiring into immigration status, and they are not allowed to investigate into anything else unless they have reasonable suspicion for a non-immigration violation. The reason for this is because these suspicionless seizures are an intrusion into the lives of law abiding citizens who are forced to stop there, and the courts have reasoned that as long as they are limited to brief inquiry into immigration status, then the intrusion is minimal and therefore justified. As an aside, Supreme Court justices Thurgood Marshall and William Brennan vehemently disagreed with this view that such an intrusion would be minimal and therefore did not think them reasonable under the Fourth Amendment. In fact, they argued that the ruling allowing these checkpoints to seize motorists, no matter how brief, did not justify the intrusion upon citizens suspected of no wrong doing who were simply traveling down the highway. They wrote:

The starting point of this view [the majority opinion] is the unannounced assumption that intrusions are generally permissible; hence, any minimization of intrusions serves Fourth Amendment interests. Under the Fourth Amendment, however, the status quo is nonintrusion, for, as a general matter, it is unreasonable to subject the average citizen or his property to search or seizure. Thus, minimization of intrusion only lessens the aggravation to Fourth Amendment interests; it certainly does not further those interests (U.S. v. Martinez-Fuerte).

The majority of Supreme Court justices found otherwise, and made an exception for Border Patrol internal, fixed-site (permanent) suspicionless checkpoints, but required the seizure to be brief and limited to inquiring into immigration status. The Supreme Court stated that “[A]ny further detention . . . must be based on consent or probable cause (U.S. v. Martinez-Fuerte).”

So what is brief, and what is further detention? According to the Fifth Circuit Court of Appeals (which has jurisdiction over the checkpoint in Uvalde, Texas), a stop of “a couple of minutes” is “within the permissible duration of an immigration checkpoint stop (United States v. Machuca-Barrera).” That Circuit has also ruled that Border Patrol officers may “ask questions outside the scope of the stop,” ie questions that are not related to immigration status, but they may do so “only so long as such questions do not extend the duration of the stop (United States v. Machuca-Barrera, 5th Cir. Appeals).”

What about an order to exit the vehicle? Do individuals have to exit the vehicle if requested to do so during the brief immigration inquiry? The answer is no. Regardless of whether requested in primary or requested in secondary, an individual has no legal obligation to exit their vehicle. Certainly such action is not required to briefly inquire into immigration status, and further, the Border Patrol has no authority to order a person to exit their vehicle. Why not? Yet again, it’s because there is no suspicion of any wrongdoing. The Supreme Court has ruled otherwise in the case of suspicion-based stops by law enforcement [police], such as a traffic stop for suspicion of speeding (Pennsylvania v. Mimms). In that case, the Supreme Court has said law enforcement can order vehicle operators out of their vehicles for “officer safety.” The High Court chose, during suspicion based stops, to value the safety of government actors during routine traffic stops over the safety of American citizens. However, agents of the Border Patrol have no such authority at suspicionless checkpoints.

So what questions are individuals required to answer at these Border Patrol stops, if any? The answer is none. Cooperation during suspicionless checkpoints is not required. Individuals have a right to not answer questions, and there is no law that requires them to provide any identification. Further, cooperation with an investigation/inquiry is not required even in stops that are based on suspicion, so they are most certainly not required in a stop where there is no suspicion of wrongdoing. Still further, choosing not to cooperate with government actors who intrude into your life at a suspicionless checkpoint, cannot be used against you as a basis for suspicion. The Supreme Court ruled, “We have consistently held that a refusal to cooperate…does not furnish the minimal level of objective justification needed for a detention or seizure.” (Florida v. Bostick) The Fifth Circuit that holds jurisdiction over the checkpoint in Uvalde, Texas agrees stating, “[I]t would make a mockery of the reasonable suspicion and probable cause requirements if citizens’ insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.” (United States v. Machuca-Barrera, 5th Cir. Appeals). An individual does not have to cooperate with agents at these checkpoints, and after the “couple of minutes” required to “briefly inquire” into immigration status, agents who have developed no reasonable suspicion for any violation, must release the motorist in order to comply with the Fourth Amendment – even if the individual chose not to answer questions or cooperate.

The Fifth Circuit has also stated, “Our decisions have held that police violated the Fourth Amendment by extending a stop by even three or five minutes beyond its justified duration (United States v. Machuca-Barrera).” As such, I am extremely confident that my lawsuit will be victorious as I was detained for nearly thirty-four minutes, after agents failed to ask me any questions related to immigration status until more than ten minutes into the detention, and only did so after I had provided my driver’s license, military ID card, and even offered my passport (an offer the agent ignored). Beyond that, when the supervisory agent even later finally asked for both of my passports, I quickly provided them to him. Still, he put them in his shirt pocket and detained me for another fifteen minutes while he called my military chain of command to verify that I was actually in the military–questions and actions that had nothing to do with my immigration status, but rather demonstrated a desire to punish me for recording the incident. The agents repeatedly lied, saying that they had asked me my immigration status in primary, and that I had refused to answer the question. The video shows that I answered every single question asked of me, with the one singular exception of providing the identity of my commanding officer, which I was not required to provide and which was information irrelevant to my immigration status. Beyond extending the detention to call my military employer, their intent to harass was further demonstrated several weeks later when they wrote a letter to my military commander and claimed that my conduct was “unbecoming.”

The law is clear, and even if I were to have to appeal my case to the Fifth Circuit that ruled in Machuca-Barrera, I am very confident that the Fourth Amendment will be vindicated.

These checkpoints are intrusions into the lives of law abiding American citizens who simply wish to travel unmolested. Agents at these checkpoints require no suspicion of any wrongdoing to force themselves into your lives, but the Supreme Court has made it clear that they must remain limited intrusions. It is important for us, especially for those of us who have taken an oath to support and defend the Constitution, to not blindly acquiesce to unlawful demands agents might make. If we do so, we unwittingly train them to expect all who pass to likewise give up their constitutional rights or be harassed. Even those who answer all relevant questions, as I did, and who provide four forms of identification including two passports, as I did.

If we don’t support and defend the Fourth Amendment, what will be next? Government agents able to enter our homes without any suspicion of wrongdoing and without a warrant? Government agents who seize us during a walk to work without any suspicion of any wrongdoing? Let’s not allow the further eradication of our rights. Not on our watch.

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PLUS:

Fixed-Site, Immigration Checkpoints, Away from the Border:

Established checkpoints located away from the border, such as at San Clemente, on Interstate 5, and Fallbrook, on Interstate 15, were, at one time, considered to be the “functional equivalent” of a border, and therefore subject to the same rules, even though these two points are miles from the U.S./Mexican border. (See United States v. Martinez-Fuerte (1976) 428 U.S. 543 [49 L.Ed.2nd 1116].)

At the time, a checkpoint was thought to be the “functional equivalent of the border” only when the government has proven to a “reasonable certainty that the traffic passing through the checkpoint is international in character. [Citation] In practical terms, this test means that border equivalent checkpoints intercept no more than a negligible number of domestic travelers.” (United States v. Jackson (5th Cir. 1987) 825 F.2nd 853, 860.)

Actual “border checkpoints”(located at the international border) implicate the broader powers of the federal government to conduct searches and seizures of persons for immigration, drug interdiction, or other purposes at the border or its functional equivalent. (See United States v. Montoya de Hernandez (1985) 473 U.S. 531, 541-542 [87 L.Ed.2nd 381, 391-392]; United States v. Ramsey (1977) 431 U.S. 606, 616 [52 L.Ed.2nd 617, 626].)

More recent authority, however, recognizes that such internal checkpoints are merely “immigration checkpoints,” and not the equivalent of an international border. (United States v. Franzenberg (S.D.Cal. 1990) 937 F.Supp. 1414; United States v. Machuca-Barrera (5th Cir. 2001) 261 F.3rd 425, 432, fn. 15.)

Therefore, it has been held that stops at such points for immigration purposes is lawful despite the lack of “reasonable suspicion,” requiring only that such stops be “selective.” (United States v. Martinez-Fuerte, supra.) THUS: One has to STOP one’s car; but does NOT have to answer any questions or show an ID (or otherwise identity himself).

“But the search of a vehicle at an [fixed-site, internal] immigration checkpoint, away from the border, may require ‘probable cause’ to justify.” United States v. Ortiz (1975) 422 U.S. 891 [45 L.Ed.2nd 623].

Thank you for reading.

– John-Henry Hill, M.D., Ph.D.

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51 Comments

  1. K.

    He is right in that you don’t have to talk to the police, ever. But there can be very real world consequences to that decision. Make your decision, but don’t bitch when your choice was a bad one. Have fun.

  2. @T

    There can be real world consequences TO talking. A cop is no ones friend. If he is talking to you, he is looking to arrest you.

  3. Seems the nutter from across the pond has found someone else to listen to his babble.

  4. That would be #311 there, CS. I saw a recent post by a freaking Harvard Law Professor who says the same thing – never, ever, talk to a cop without a lawyer present. He actually reasons it out, showing how a cop can use what you say to hurt you, but not to help you. That in fact, they are forbidden to use anything you say to help you because it would be hearsay. Not sure I’m repeating exactly, I’m an engineer, not a lawyer. But it was to that general effect.

    And as for t, yep, the real world consequence would be that the cop couldn’t talk you into incriminating yourself by just “getting the story down on paper”.

  5. My question for “t” is why would there be real world consequences,we just read that the courts have upheld,over and over,that you have no legal requirement to talk to the police,so WHY is there REAL WORLD CONSEQUENCES,when you do what are legaly obligated.It seems to me that you are trying to justify the illegal violence that follows “contempt of cop”.This post especially proves that police should have any and all immunities stripped from thier jobs.When they violently oppress someone then we could sue them personaly,and I would bet that the contempt of cop beatings would become a thing of the past.

  6. because he is cop so he is god and can pick some bs thing out of his ass and screw your day by falsely arresting you bit that is where remaining absolutely silent even with your signed statment they make you give at the jail just sign it date it and hand it back let your lawyer do ALL of your talking

  8. @upyourarse

    “My question for “t” is why would there be real world consequences,”

    T’s answer is that the cop is then left to act only on what he has learned, if you won’t talk. True.
    What is also true, and t won’t admit it, is that if a cop is talking to you about an accusation, he is already gearing up to arrest you. As certain said, and t knows full well, a cop’s goal is to get you to incriminate yourself.

  9. Shawn says:
    October 10, 2013 at 1:30 pm
    @T

    “There can be real world consequences TO talking. A cop is no ones friend. If he is talking to you, he is looking to arrest you.”

    I had a conversation with a Police Officer the other day about a local sports team. The peculiar thing is, I didn’t get asked for ID nor was I arrested. We spoke for a good 15 minutes. To use Ariel’s words. Shawn you’re a bigot.

  10. @ERD

    Your correct sort of. I do watch who I associate with. But it is perfectly reasonable to base that view on how a group behaves. Cops have earned my ‘bigotry’. Time and again, they prove me right about their lack of character and values. Look at t. There is nothing he won’t justify in a cop. He even stands up for the cop discussed here who punched an innocent woman. He stands up for Officer Harless. That shows a lack of moral character.

    Cops are power hungry, egotistical, and well aware that they can get away with murder. That isn’t the description of someone that it is wise to include in your life.

    You want to associate with cops, be my guest. But what do you think will happen if you suddenly become at odds with one another?

  11. Shawn,

    I don’t foresee that happening. Then again I don’t live in Florida either.

  12. More fucking bullshit from an activist. Who the fuck is that guy? He claims to be a doctor yet there is no record of him. Just another lying activist who got the same information from the same out dated garage sale law book. If you don’t want to talk to a police officer then so be it. But there will be consequences and a fucking cunt activist who decided not to cooperate gets what they ask for. You fucking cunt activists will act like fucking morons at check points and everytime you break the fucking law. Be detained, get arrested, it doesn’t bother me.

    Ron Paul says, “All activists lie all the time everytime”.

  13. Slaps, if raping poor defenseless goats doesn’t cause you to lose any sleep, nobody would expect an activist getting arrested to bother you either.

    Ron Paul really says – Slaps is a douchebag

  14. Really Slaps? Did you even read the article? Just make dumb replies with bad language and make yourself look stupid with quotes Ron Paul never said. By the looks of other peoples remarks, they have a high regard for you.

  17. I didn’t expect an answer because the only answer is that the police are a gang just like every other gang in America.Maybe I am also a bigot ,erd but I don’t hang out with cops and I don’t hang with the brothers in Detroit.Its called Self preservation.I am also sure that that sports team conversation didn’t begin with ” let’s see some I D”.So next time you could give him a back rub or smoke his pole.

  18. October 11, 2013 at 2:49 pm
    Annonypussy certain – It is so sad to see you continue to carry out your sick fantasies. The videos proved you were a sick person and now the beating of your mom has come to light. How far will you go?

    Last weekend you beat the living hell out of your mom. She was almost admitted to the hospital. Now you go around and act like you did nothing wrong. I know you are pounding on your mom because she gave those videos of you to post. I have more respect for your mom then I do for you. Hopefully you will end up in jail long before you ever hurt her again loser.

    Ron Paul say, “All activists lie all the time everytime”.

  19. Upyourarse,

    You are absolutely correct. The conversation didn’t begin with him asking for ID.

    Rub his back? Smoke his pole? Now you are talking out your arse. Handjobs are more my style. ;-)

    Fucking moron.

  20. Your name is evilradicaldude and I’m the moron.I would venture to say that you are not evil and certianly not radical since most of your post reflect the standard retoric of a statist fool.Well,I for one am not afraid,and do not need a policeman to protect me,and certainly not to extort my wealth.So love up on your booty buddies but always remember I dont talk out my arse but I will stuff that logic stick upyourarse.

  21. LMAO, “logic stick” huh?

    You couldn’t hit the bottom of a tuna can with your “logic stick”. So I have no fear of your anal rape threat.

    If you don’t know how I got my screen name, then you need to pull your head out of your arse.

    Sincerely,

    ERD

  22. Sorry but Im not the type to investigate where bloggers came up with there names,but it sounds kinda like a guy who listens to black metal and plays a lot of video games.Given your proclivity for cop love,and the name erd I imagine a man almost large enough to ride a roller coaster.I did love your tuna can anal agy,but being a well rounded person I happen to know that tuna cans come in many sizes. The only thing I threatend you with was logic,sorry in your mind,you were wishing that I was a cop.

  23. Jason, you are so full of shit. Nobody gives a flying fuck about cops anymore and ones like you get what they deserve.

    Thanks for playing! ;)

  24. upyourarse says:
    October 11, 2013 at 4:29 pm
    “Sorry but Im not the type to investigate where bloggers came up with there names,but it sounds kinda like a guy who listens to black metal and plays a lot of video games.Given your proclivity for cop love,and the name erd I imagine a man almost large enough to ride a roller coaster.I did love your tuna can anal agy,but being a well rounded person I happen to know that tuna cans come in many sizes. The only thing I threatend you with was logic,sorry in your mind,you were wishing that I was a cop.”

    Not really into metal or video games. I prefer Dungeon and Dragons. Oh…. I also LOVE LOVE LOVE magic and the zombie apocalypse. While I might not be tall enough to ride a roller coaster, my size allows me to ride around on average size dogs as if they were horses. HOW MANY PEOPLE CAN SAY THAT? See I am an optimist. No mention of living in my parents basement? That disappointed me. :-(

    Enough about me. I am not going to argue that you aren’t a “well rounded” person. You probably sound like your chewing on your face when you speak too. You seem to have a fixation with shoving things up people’s asses hence your screen name and earlier comment. To each his own. I’m not judgmental.

    Now, quit licking the window and put on your helmet. If your not interested in my screen name, why comment about it? Doesn’t seem very “logical”. If I may be a bit pedantic, please work on your paragraph and sentence structure. It is horrible.

  25. Jack Shit – Nice name cunt. There are more people who view the PD as heroes then those who think activists are heroes. I’m glad the fucking worthless pieces of shit activists are on this website. Then you all can pat each other on the fucking back and tell each other what a bunch of fucking victims you all think you are. You fuckheads sit around circle jerking each other because no one thinks you people are worth the time it takes to pronounce your name. Since you are such a fucking cunt, I’m sure it won’t be long until you get yours jsut like the rest of the goober activists on this site.

    Ron Paul says, “All activists lie all the time everytime”.

  26. Shawn: You’re really turning into an idiot. Again, the ABSOLUTE CRUSH of numbers are against you. If I handle 25 calls a day and with an average of 4 people contacted at each…..do I then arrest all 100 or maybe only 50 each shift ???? The people who generally get arrested….are the people who should be arrested. As already demonstrated….your talking to us or not will more than likely only harm you

  27. 39 sided dice huh,different generation but same mentality and social awkwardness.I will give it to you about the riding dogs and shit.That was some funny shit.The ass thing is just something I saw an asshole cop do to some young ladies on the side of the road and I’ve had a fetish every since.You also hit the nail fright on the head about face chewing,in fact I kinda talk like Biggie Smalls,only a little more Caucasian sounding.I can’t help it,hits from the bong and DMT have left me with slight drawl.I didn’t quite understand the window licking bit ,sounds like a metaphor for pokin your coolo ,with the reference to putting on my helmet and all, just sayin .Sorry for the paragraph issue ,but being a radical libertarian ,I am allergic to structure .

  28. It has nothing to do with being a “radical libertarian”. You’re just dumb and obviously fucked up tonight.

    Sincerely,

    ERD

  29. The real analysis shouldn’t be a legal one, but a practical one, a simple balance of harms test.

    Will it harm me more to a) identify myself or b) not identify myself?

    Failing to identify yourself is not “sticking it to the man.”

    Purposefully driving to check-points to show you don’t have to identify yourself is not “sticking it to the man.”

    Having to appeal your case to the Supreme Court to prove you were right about not being required to show an ID is “the man sticking it to you!”

  30. The author says you cannot be punished for refusing a breath test.

    He is WRONG!

    Can you refuse breath tests? Sure.

    Can you be punished for refusal? Most (if not all) states have an implied consent law so research your local laws.

    In VA, the first conviction of refusal is a civil penalty with a loss of license for 1 year with no restricted being issued.

    Subsequent refusals are punishable as misdemeanors with longer periods of loss of license.

    VA has found refusing FST’s (field sobriety tests) can be used by the officer in determining probable cause to arrest you for DUI.

    I offer no advice on this forum on whether you should take or refuse FST’s or breath tests. I’m simply advising you to check your state’s laws for the ramifications of refusal so you can make an informed decision.

  31. Certain,

    That video, if it’s the one I’m thinking of, also included a retired cop saying the same thing. There are real word consequences to doing either.

    Cops, when they think they are being accused of a crime, blab their heads off. Can’t shut them up. I believe they are trying to disprove “silence is guilt”. Okay, that’s the smart ones, the dumb ones shut up and call a lawyer.

  32. PO,

    “In VA, the first conviction of refusal is a civil penalty with a loss of license for 1 year with no restricted being issued.” Yeah no punishment there. Is there any state that doesn’t have implied consent and administrative punishment?

    The DUI Blog covers this extensively.

    In Arizona, the request to identify requires RAS on the officer’s part and also a warning after first refusal that refusing will lead to arrest. You can’t arrest on first refusal. A good cop will adhere, a bad cop will game it.

    I have no problem giving my name; I do have a problem if the cop refuses. He would be violating an Arizona statute that clearly requires an officer to fully identify himself. Of course that statue has no dentures let alone teeth.

  33. I try to avoid any and all police interaction when I’m not in court.

    So I know where troopers lurk on the interstate and I know what speed draws them out.

    I don’t drive after midnight unless absolutely necessary, and when I do, I don’t speed.

  34. Wisconsin’s DUI/OWI (my state has a distinction between driving while intoxicated and operating while intoxicated) laws is the most lenient I’ve ever seen. Our state constitution has been amended so sobriety checkpoints are illegal & the first DUI/OWI conviction isn’t even a crime (unless a child is in the vehicle). The 2nd and 3rd DUI/OWI are misdemeanor charges.

    Refusal of a PBT or FST will most likely lead to arrest for DUI/OWI but you can still refuse. You can also refuse a post-arrest breath, blood, urine test but I would have to inform you that I will suspend your license on the spot and that refusal doesn’t guarantee that you’ll walk out of court without conviction. You could be found guilty based on the refusal alone. Cooperation also determines if the offender spends 12 hours in the Sheriff Clarke’s Graybar Inn or if I call a responsible adult and and send the offender home with a court date.

    If found guilty, the offender is fined up to $300 with an additional surcharge (I think it’s $500) and a license suspension of up to 9 months with eligibility for an occupational DL after 30 days. However, if the defendant has been cooperative from the start, the judge almost always reduces the fine (not the surcharge) & waives the 30 day wait. The defendant can immediately walk next door to the DMV office and receive an occupational driver’s permit.

    But for your first offense and no children were in the vehicle, that’s it..

    Fines, of course are higher on subsequent convictions and they may include jail time, mandatory alcohol/drug counseling and a very expensive IID.

  35. @Public Offender

    “The real analysis shouldn’t be a legal one, but a practical one, a simple balance of harms test.

    Will it harm me more to a) identify myself or b) not identify myself?

    Failing to identify yourself is not “sticking it to the man.””

    I never got the refusal to provide ID. My limit is when they want to play 20 question about where I have been, where I am going, why, etc. That is degrading and treats people like their coming and going is answerable to cops. It isn’t.

    I don’t refuse to be nasty. I refuse because I have to have self respect. Of course a cop’s attitude can get a little more cooperation, but good attitude cops are increasingly hard to find.

  36. Silliness. All a bunch of nonsense.

  37. @t

    Anything that doesn’t give cops what they want is silliness to you. You are all about the needs of cops.

  38. Shawn: Whatever guy. Talk / don’t talk. Blow / don’t blow. Do the drunk Olympics / don’t do the drunk Olympics. You still think we arrest everyone we talk to. We talk…..the only possible influence that will have ….at street level….is negative to you. But you are super experienced….you do what you want. Doubt it works as well as you think it will.

  39. REPLY to: Jason Free 123 statement date October 10, 2013 at 6:41 pm

    1.) I am most certainly NOT an activist. I believe that politics is a “sucker’s game” to keep the people riled up and busy while the real “powers-that-be” SCREW us.
    “Capital must protect itself in every way, through combination [conspiracy and deceit] and through legislation … the common people have lost their homes, they will be more tractable and more easily governed by the strong arm of the law, applied by the central power of wealth, under control of leading financiers… This is well known among our principal men [bankers] now engaged in forming an imperialism of capital to govern the world. By dividing the people we can get them to expand [expend] their energies in fighting over questions of no importance to us except as teachers of the common herd. Thus by discreet action we can secure for ourselves what has been generally planned and successfully accomplished.” — Excerpt from “Banker’s Manifesto of 1892”

    2.) “John-Henry Hill” is one of many pen-names I have used over the years, necessary because I worked either as a contractor or employee for various agencies of the U.S. government, including the U.S. military.

    3.) The M.D. degree is real, as is the Ph.D. (in early American political history)
    – please see: http://JohnHenryHill.Wordpress.com

    4.) Why do you “attack the man”, instead of debating the issues presented?

    5.) Any GOOD lawyer (as opposed to an “attorney”) – using the Common Law and occasionally statutory law – can easily defeat the police in court for violations of a man’s rights, REGARDLESS of what acts, statutes, codes, regulations, ordinances, by-laws, rules, etc.

    “Where rights secured by the Constitution are involved, there can be NO rulemaking or legislation which would abrogate them.” Miranda v. Arizona – 384 U.S. 436 (1966)
    – which means that ALL statutes, acts, regulations, rules, etc. on the federal, state or locals level which violate a RIGHT, as guaranteed in the Constitution, are VOID from their inception and of NO lawful effect. This principle of law pre-dates the Constitution by hundreds of years and has been affirmed by the U.S. Supreme Court in literally hundreds of cases.

    ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
    ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
    Jason Free 123 statement date October 10, 2013 at 6:41 pm

    More fucking bullshit from an activist. Who the fuck is that guy? He claims to be a doctor yet there is no record of him. Just another lying activist who got the same information from the same out dated garage sale law book. If you don’t want to talk to a police officer then so be it. But there will be consequences and a fucking cunt activist who decided not to cooperate gets what they ask for. You fucking cunt activists will act like fucking morons at check points and everytime you break the fucking law. Be detained, get arrested, it doesn’t bother me.

  40. Jason, if you were not such a pussy cop, you would post your real name and address so we could talk about this, Man to Pig!

    But we all know that you don’t have the balls to do that. You are just another loser cop who got picked on in school and need to hide behind a tin badge to keep from getting your ass beat, AGAIN!

    Here’s hoping your next traffic stop is your LAST!

    1. On the rare occasions I see bad cops that I knew as teenagers… they were not the picked on kids. They were the kids who did the picking on AND the groping of females. They simply chose a job that meant they could actually be paid and given awards for doing what they loved as kids.

  41. Jack shit – Your mother named you well. I don’t see you posting your real name or address. You are nothing but a piece of shit cunt child molester. YOu are too stupid even for words. I use my real name and you fuckers still don’t believe it. Makes no difference to me. You are no man. You will never be half the man your mommy is. You are the loser who got picked on in school. You had no friends, you are still working the smae job you did in high school and you are a fucking liar. You were some greasy slime ball who pissed on everything you could. Why don’t you post your real name and address. I’m sure you won’t because you are a pussy keyboard wannabe. Go back to butt fucking your mom you inbred child molester.

    Ron Paul says, “All activists lie all the time everytime”.

    1. Wow, obviously you don’t need an education to be a cop in America. Do you kiss your mother with that mouth? Land of the oppressed home of the pussy. Glad your empire is crumbling you pawn.

      1. Actually, it is the ONLY profession that has fought for and won multiple court rulings saying that they can discriminate against people with high IQs in hiring or promotion. It’s not just that you don’t need an education to be a cop. They PREFER hiring stupid people.

    2. Pffft.. who cares about how much of a man he is. I’m concerned that you aren’t even a real human. You’re a state sanctioned gang member lowend thug that didn’t want to give up your highschool glory days of daterape and shoving smaller kids into lockers…. so you found a job where they will pay you to do it. You are not only a scumbag on the general human decency level.. if you’re a cop acting like this… you’re also a disgrace to this nation and an enemy of the constitution and people you swore an oath to serve.

      You are as low, if not lower, than any child molester, drug pusher, rapist, or wife beater. (actually, statistically speaking.. if you’re a cop, you probably ARE a rapist or wife beater.. and on roids)

      If you are the one INSISTING that people MUST give their real names online, and insisting that YOU are fully identifying yourself, I say “pics or STFU”. Show us a photo of you holding your ID, with your name, that shows the same face on the ID as is on the person holding it. Won’t do it will you? Well, doing so isn’t mandatory on the web, but it does mean you’re going to be regarded as just another lying idiot on the web if you’re insisting that youre brave and putting yourself out there.

      BTW.. before disrespecting the alleged job of another, you should probably make sure that you don’t work in an industry that not only prefers hiring stupid people, it’s actually fought for the right to weed intelligent people out.

      I hope you get shot on duty by someone with a good enough lawyer to get off on self defense. If you have a wife and kids, it will be the best thing that ever happened to them.

  43. Shawn,

    Never forget t. is only one cop. Until you have the 999 other cop opinions, well, you just have the one.

    From what I’ve seen from lawyers, ex-cops, and cops on Police.one it isn’t so simple as talk=good (you go home) or talk=bad (you get arrested). So it does have a degree of crap-shoot, however, once you’re arrested you need to shut up (as any smart cop does in the same situation). Unfortunately, anything you said before the arrest applies too.

  44. Thank you so much for the information. I saved this page, print screen style.

  45. Texas needs to REMOVE Border Patrol check points. Useless and harass our Liberty. It does not work, How many Illegal are there? Beyond these checkpoints. They are trying to justify their existence at your cost. When a BP disrespect US Army Soldiers for no reason, that’s when there’s a problem. After 8 years you have to be a US citizen. The license plate tells a lot about who’s the owner? I question? why I have to say US citizen? I d much rather show my passport. That says I was born in the US. But wait the BP will still held me to verify with my US Army Commander. It’s an embarrassment that Border Patrol Agent’s act this way toward military. The Border Patrol need better training on treating US citizen with Respect. I want to see if they do this to the CIA, FBI, or Federal Judges
    On vacation.

  46. The police officers in Illinois are borderline retarded and don’t even know the laws except when I comes to the 5 they know to issue traffic tickets. I’m surprised more of them haven’t shot themselves with their own guns.


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