It’s been more than half a century since the U.S. Supreme Court expanded the ability of police officers to stop, question, and frisk a person suspected of engaging in criminal activity over the strenuous dissent of Justice William O. Douglas. Justice Douglas believed that police stopping a person based upon suspicion rather than the Fourth Amendment standard of probable cause represented an unwarranted intrusion upon an individual’s rights and liberty.
The 1968 decision in Terry vs. Ohio remains the law of the land, but it appears legislators in Oklahoma wanted to take Terry stops, as the brief encounters authorized by the landmark case have come to be known, even further. A proposed law would have required detained persons to provide identification and explain their actions “to the satisfaction of the peace officer” according to the language of the proposed law. One issue with the proposed legislation had to deal with its necessity (or lack thereof) in light of the powers police have under the Terry ruling. Regardless, the vague language of the bill left many in the legal community wondering how the authors of the proposed Oklahoma law expected it to pass constitutional muster.
Extent of police-civilian contacts
Society relies upon its law enforcement agencies to enforce the law and provide residents of the communities they serve with a safe environment in which to live. With that in mind, contact between police officers and members of the public occurs more frequently than you might think.
According to the results of a study conducted by the federal Bureau of Justice Services, 21% of people 16 years of age or older reported having some form of contact with police within the preceding 12 months. Police officers initiated 23% of those contacts, and residents initiated 19% of them. The study revealed that contact initiated by police was equal for black and white residents.
Making arrests and investigating criminal activity are not the only reasons residents and police officers interact. The Bureau of Justice Services reports that contacts may be initiated for the following reasons:
· Services provided by police to members of the community
· Residents seeking information from police officers
· Residents reporting criminal activity
· Vehicle occupants during police stops for traffic violations
· Searches conducted by police
· Suspicious behavior causing police to stop residents in public places
Under the guidelines of Terry vs. Ohio, a police officer having reasonable suspicion of criminal activity may stop a person in a public place to investigate further. If the officer believes the person may have a concealed weapon, a light pat-down of the outer garments may be conducted, and any weapon detected may be seized.
The Court did not require the person stopped for suspicious behavior answer an officer’s questions or provide identification. Unless a police officer has probable cause to believe the individual committed a crime, the person may leave and not be detained.
Oklahoma sought to take Terry stops to another level
Oklahoma would have become the 25th state to require the public to identify themselves to police officers when requested during what would otherwise be a Terry stop. The U.S. Supreme Court was asked to rule on the constitutionality of laws requiring citizens to produce identification during contacts with police. The decision in Hiibel v. Sixth Judicial District Court of Nevada, released in 2004, held that asking someone to identify themselves was not a violation of the right against self-incrimination contained in the Fifth Amendment to the Constitution, because a person’s identity was not incriminating.
Allowing police to ask someone to identify themselves when stopped for what the officer believes may be suspicious behavior might be consistent with the Terry and Hiibel decisions. Still, Oklahoma legislators tried to go too far. If you provide an officer with your driver’s license or other photo identification, then you may not be free to walk away or refuse to answer additional questions posed by the officer.
Proposed law would have trample upon a person’s constitutional rights
The legislative proposal included the following language: “Any person who fails to identify himself or herself and explain his or her actions to the satisfaction of the peace officer may be further detained….” Providing your identity to a police officer may not violate your Fifth Amendment rights according to the Court in Hiibel, but this language compelling a person to explain their activities certainly would be a violation of the right against self-incrimination.
Another issue raised by the quoted language is the lack of any standard by which an officer may determine if a person’s actions have been satisfactorily explained. The lack of a clear standard has been the basis for courts striking down loitering and vagrancy laws as a violation of the Due Process Clause of the Constitution.
A brief Terry stop, as envisioned by the Supreme Court, could have turned into a person being detained indefinitely for exercising a constitutional right. Thankfully, sounder minds in the Oklahoma legislature prevailed, and House Majority Leader Jon Echols killed this proposed assault on individual rights before it was allowed to become law in Oklahoma.