Kolender v. Lawson - Oral Argument

ORAL ARGUMENT OF A. WELLS PETERSEN, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: Thank you gentlemen, the case is submitted.

At one o'clock we will hear arguments in Kolender versus Lawson.

Mr. Petersen, you may proceed whenever you're ready.

Mr. Petersen: Mr. Chief Justice and may it please the Court:

Appellants are asking this Court to find California's Penal Code Section 647(e), as interpreted by People v. Solomon, constitutional; furthermore, that when the statute is properly applied, it satisfies the Fourth Amendment criteria; and finally, that when the police acting properly under the statute request a person to identify themselves, that that does not violate their rights under the Fifth Amendment.

Now, the facts normally in a case like a Terry stop case, the facts are normally quite important and very relevant.

In this particular case, the facts surrounding the stop of Mr. Lawson are not relevant because the matter will go back down for a trial at the district court level, a jury trial on the facts.

Therefore, I think it would be inappropriate and really they're not relevant to a decision today, not at all.

It is first critical to review Appellants' claim that the statute is constitutional as interpreted by the Solomon court, and our first premise is that because of Solomon, with Terry, we have clear standards that proscribe the police in enforcing the statute.

Now, the court below recognized the statute engrafted the guidelines from Terry through Solomon.

Therefore, before 647(e) ever comes into play the police must have articulable facts demonstrating their belief was reasonable that the person was acting in a suspicious manner relating to criminal activity.

This standard and guideline ensures a tempered act of a policeman.

As this Court held recently in Cortez, the police action must be considered in light of the total circumstances.

The police then act on probabilities, after considering the data at their disposal.

And it would be impossible to write either a statute or an opinion that encompassed every conceivable situation that could be considered suspicious, and that's a point conceded by Appellee.

But it isn't even necessary, because we have Terry that sets forth adequate standards against which the police activity is measured.

Now, Terry obviously was both loitering and wandering for a criminal purpose, which therefore required the police to respond because the public safety demanded it.

Now, Terry provides the standards not only for stops, but also probable cause to arrest, and while those standards may lack machine tool precision--

Unidentified Justice: In Terry there was a frisk before there was an arrest.

Mr. Petersen: --There was also a request for an--

Unidentified Justice: And in the frisk they found a gun.

Mr. Petersen: --There was a request for identification--

Unidentified Justice: And then there was an arrest.

Mr. Petersen: --then a frisk, and then an arrest.

Unidentified Justice: But the arrest was after the frisk.

Mr. Petersen: That's true.

But while these standards may lack, as I say, the precision that some may wish, they certainly have provided constitutional guidelines since their inception that have guided courts throughout the country.

And California has only memorialized the Terry stop by statute and court opinion intertwined to give us a solid basis upon which to judge these matters.

Certainly, the standard imposed upon the police to articulate what they perceive as criminal activity is no more onerous than we placed on the police in making a stop, a driving while intoxicated stop.

Solomon also provides the second leg of the standard, a standard for what satisfies the request for identification.

It must be to a reasonable policeman reliable.

Now, while this may present some problem to some, we ask all sorts of people to make decisions on reliability.

We ask bartenders to--

Unidentified Justice: Does that require someone to carry and produce identification?

Mr. Petersen: --No, ma'am, it does not.

It does not do that at all.

It only requires that the officer be satisfied that the identification is reliable.

I'm sure that all of us recognize that there are joggers who go about--

Unidentified Justice: How does one do that without carrying something?

Mr. Petersen: --It's quite easy.

You query.

In other words, a jogger stopped... and we all recognize the fact that there are joggers now plying their trade in sweatpants and sweatshirts because it makes them less noticeable in the jogging atmosphere and they can run away from their crime.

But if a person were jogging and wasn't carrying their identification, the officer would merely inquire where they lived and their name, identification.

The person provides it.

The officer then asks them what the major intersection is near the home, what the route was that he ran to get from there, or where it is in relation to where the person was stopped.

All of these things that seem to be unable to be answered by people such as Mr. Powell in Nevada, who couldn't respond to where his friends lived or their name or their address or which direction he was rightfully headed at that time.

Those things are ways of getting to the reliability of the identification.

Unidentified Justice: May I ask, following up on that, supposing you stopped the jogger, you asked him his name, he says, my name is John Smith, and then you ask him these additional questions about how he ran to that particular location.

He says, I would prefer not to tell you.

Does he commit a crime?

Mr. Petersen: He has not provided the officer the level of identification that 647(e) requires under Solomon.

Unidentified Justice: And he has committed a crime?

Mr. Petersen: Solomon says that he must... that you must discern where the man can be contacted at a later date if that's necessary.

Unidentified Justice: So he has committed a crime if he says, I would prefer not to tell.

Say he gives his address also.

Mr. Petersen: Well, if he gives his name and address--

Unidentified Justice: He has nothing with him.

You say, would you tell me, what route did you jog over here from.

He says, I would prefer not to--

Mr. Petersen: --If the officer at that point feels that that, knowing the neighborhood--

Unidentified Justice: --Say he thinks he's lying.

Mr. Petersen: --Sure, he thinks he's lying.

Then he--

Unidentified Justice: Then he's committed a crime?

But say he's not lying.

He tells him truthfully what his name and address is, but he declines to tell him how he got from point A to point B.

Has he committed a crime?

Mr. Petersen: --Yes.

I find it difficult in the scheme of a rational person--

Unidentified Justice: Supposing he says--

Mr. Petersen: --in an interface with the police not being willing to say, well, I ran down this--

Unidentified Justice: --Well, maybe on the way over he robbed someone.

Maybe he snatched a purse on the way over.

And he figures if he tells him how he came he would incriminate himself.

That might be his real motive for not wanting to tell the police officer.

But the mere fact he did not answer is a crime?

Mr. Petersen: --If he did not give reliable identification.

Unidentified Justice: Well, I told you what he gave.

Mr. Petersen: If he did not provide reliable identification, because you said that the police officer did not believe him--

Unidentified Justice: Does the police officer have to give him any kind of warning?

Does the police officer have to give him any kind of warning that the information might help them catch the thief who stole, in my hypothetical case, a purse three blocks away?

Mr. Petersen: --There is no requirement that I know, statutory or otherwise, that requires a policeman to inform a person why he is being stopped.

Now, in the world of common sense and the way that police operate, normally that information does come out and people are told that--

Unidentified Justice: As I understand your explanation of the statute, without any Miranda warning or its equivalent, if a man who is in fact suspected of committing a crime is stopped and asked if he was at the location of the crime and he just says, I'd rather not answer, he's now committed the offense.

Mr. Petersen: --No, not if he responded--

Unidentified Justice: The question was, how did you get from A to B.

And you said if he doesn't tell me he's committed the offense.

Mr. Petersen: --If he has not provided the officer with reliable identification, he certainly has.

Unidentified Justice: Well, he told him, my name is John Smith--

Mr. Petersen: Now, leapfrogging to the Fifth Amendment issue--

Unidentified Justice: --Well, your opponents argue that.

Mr. Petersen: --I realize that, and if you'd like to discuss that, I think it's important to--

Unidentified Justice: Well, you were telling us how the statute is properly construed at this point, as a preliminary to your argument.

Mr. Petersen: --There might be other ways of getting to the reliability of the data, of the identification.

Unidentified Justice: But there would be an approved way.

Mr. Petersen: All we're after with 647(a) is the man's name and address, or the woman's or the person's.

Unidentified Justice: But you then said the customary procedure correctly applied under the statute is to follow up with a question of how did you get from A to B, without any warning of the consequences of either answering or not answering.

Mr. Petersen: The warnings only are given to, can you provide any other reason why I should believe that you live at such and such an address.

Unidentified Justice: Well, no.

You've told me what you said is the approved way.

Mr. Petersen: That's right.

Now, the--

Unidentified Justice: In a Terry stop can the officer reach into the pocket of the suspect and pull out his wallet and check for ID?

Mr. Petersen: --Under Wisconsin law they certainly can.

The Wisconsin Supreme Court in Flynn decided that and said they could, and also--

Unidentified Justice: Was that part of a patdown process in Wisconsin?

Mr. Petersen: --No, it was part of asking for an identification.

It wasn't... to my understanding of Flynn, it was not part of seeking weapons.

It was, the officer wanted to find out who the person was and he reached into his pocket and took his wallet.

Unidentified Justice: Has this Court ever said that that's all right under a Terry stop?

Mr. Petersen: No, not to my knowledge they haven't.

They denied cert in Flynn, but of course that doesn't necessarily--

Unidentified Justice: Would the California statute then allow the same information to be obtained, but in a different way?

Mr. Petersen: --We feel that there are certainly ways to ask for a reliable identification without interfering with the person's Fifth Amendment rights, as Justice Stevens raised.

We feel that there are certainly ways and avenues of inquiry which can be used that will bring about the information that is non-incriminatory.

Unidentified Justice: The California courts have interpreted this statute to require the person stopped to account for his presence or her presence.

What does that mean?

Mr. Petersen: That means that you provide reliable--

Unidentified Justice: That's the sort of inquiry you're talking about?

Mr. Petersen: --That's right.

You must only provide reliable identification.

That's all that's required.

Unidentified Justice: You keep saying "identification".

I think you must mean information, don't you, because the third question Justice Stevens has proposed, or that you proposed, is not identification at all.

How did you get here?

Mr. Petersen: Well, what you're getting to is identification.

The reliable information, the information to verify that the identification is reliable, is what he was getting to, I believe, if I read his question correctly.

Unidentified Justice: Well, he gave you the name and the address, and you--

Mr. Petersen: That's right.

He said, my name is John Jones and I live at 25 Main Street.

And the officer for some reason disbelieved him and then said, well, can you tell me how you, the route that you jogged, or can you... and that would have incriminated him.

Perhaps he would have said, well, you know, I live at that address and the next intersection is Main and L, and that's nearby and the officer would recognize that and recognize the information as reliable.

Unidentified Justice: --Or suppose the officer--

Mr. Petersen: I think that's reasonable and I think it's reasonable police action that we're looking for here.

Unidentified Justice: --Suppose the officer is basically on the lookout for the neighborhood rapist, who is believed to drive a blue car.

Then under this statute can he go on and inquire about, how did you get here, did you travel in a car, what color?

Mr. Petersen: Well, if we're talking about a jogger, no.

No, once the person has given reliable identification, he may not.

Under Solomon the person must be allowed to proceed.

That doesn't mean that some time in the future when the detective who is investigating the neighborhood rapist comes upon various names seen under suspicious circumstances, that he cannot go to the person's home and make further inquiries under other circumstances.

That's just normal investigation.

Unidentified Justice: How about right there on the street?

Mr. Petersen: No, that isn't authorized.

You must allow him to go on his way once he provides reliable information.

If what he tells you triggers additional suspicions, such as what occurred when Mr. Powell was stopped in Las Vegas, then certainly further inquiry... a policeman would be remiss if he did not inquire further.

Unidentified Justice: May I ask one other question.

What about the "account for his presence" language in the statute?

Mr. Petersen: The "account for his presence language" has been interpreted by Solomon to mean only that you provide reliable identification, not that I'm here because I want to stand and watch something, or I'm not here because... I'm here at the corner because I'm supposed to meet someone.

That's not part of the procedure at all.

Unidentified Justice: Just all it goes to is--

Mr. Petersen: The Solomon court has said that.

Unidentified Justice: --Well, I'm still... if it weren't for that language, I would have been puzzled by your statement that the correct practice under the statute would be to ask a question such as, what are some of the neighboring streets or how did you get from there to here.

You think that goes to the reliability of the identification?

Mr. Petersen: That's right.

If they were as you stated, the officer disbelieved the person.

Unidentified Justice: See, you have, I suppose by hypothesis, at the time of the stop the officer suspects him of being engaged in criminal activity.

Mr. Petersen: Already has articulable facts to justify the first intrusion.

Unidentified Justice: Right.

So he thinks he's involved in criminal activity.

Mr. Petersen: Right.

Unidentified Justice: He says, I want to ask you your name and so forth.

Mr. Petersen: That's right.

Unidentified Justice: But he doesn't tell him he thinks he's involved in criminal activity.

Mr. Petersen: No.

Most of the time people will... the interchange will result in that.

However, there's no requirement, as I stated before, that I know of where you have to notify someone why you are stopping them.

It just happens that most people are.

You have to notify them at the arrest--

Unidentified Justice: And you don't have to notify them if you say, how did you get here, even though the purpose of the question is to find out if maybe he's the purse-snatcher?

Mr. Petersen: --No, the purpose of the question is to find, is to gain the reliability of the information.

Unidentified Justice: I see.

Mr. Petersen: If you suspect him as a purse-snatcher, you're focusing in and your Fifth Amendment comes into play, of course, at that time.

But just asking a name and address has, as cited in my reply brief, been designated as, for lack of a better word, pedigree information that's required, that doesn't require a Miranda warning before you require that.

Unidentified Justice: This statute provides, would you say, wider latitude to police than the Terry stop?

Mr. Petersen: No.

No wider latitude whatsoever, because they're inextricably intertwined.

They form the basis.

All we've done is memorialize Terry with a statute and say that Terry applies and you can stop a person and ask them for identification under Terry circumstances.

It's a Terry stop.

Unidentified Justice: But if under Terry you can't compel someone to produce their wallet and their ID, how is this statute not broader than Terry?

Mr. Petersen: Because Terry did not get to the issue of requiring the person to provide his identification.

I think the only place that was mentioned was in Justice White's concurring opinion, when he said that when he asked them for identification and he told them, Mr. Terry told the officer what his identification was, in Justice White's opinion he said that if he had chosen not to tell him he could have walked away.

Under these facts and circumstances, we feel that there's a reasonable governmental interest in having the person provide his name, and the people of California have so stated through their legislature.

Unidentified Justice: So it may be broader than Terry if Justice White's view is correct?

Mr. Petersen: If Justice White's view is taken as part of the opinion, it might be a tad broader.

But still in all, I think by the same token it's more restrictive, too, because if you don't have reliable information under which you think your safety is at stake you can't pat them down.

You can only ask for their name.

And it allows a lower level of intrusion than a Terry patdown, and that's what makes this very reasonable.

It's eminently reasonable that if a person is suspected of criminal activity, say it's a prostitute on the corner or say a bookmaker in a barbershop or something like that, where you wouldn't normally feel that your life was in danger, so it wouldn't justify a patdown search, you could still, with articulable facts justifying a detention, the initial detention, you could still inquire as to their name and address and identity.

Unidentified Justice: What do you say are the articulable facts that supported this stop here?

Mr. Petersen: There were 15 of them.

Unidentified Justice: Well, just take the last one.

Mr. Petersen: I think basically, and as I said before, I really didn't come prepared to discuss the facts of the case because they're going to be litigated again, because the Ninth Circuit sent it back for a jury trial on whether or not the person was stopped.

But let's take the time, the first time, which is one that I am familiar with, when the person was walking along a darkened road in the nighttime hours and there had been a series of car clouts in the area, and the person was not wearing a raincoat, although it was a rainy night.

It would appear that he wasn't from the immediate neighborhood, that he was from outside the area; that he was not walking along the edge of the street, that he was walking out toward the middle, according to the officer.

Unidentified Justice: How much... you haven't got to the appearance yet.

What about the appearance that attracted the officer's notice, or did that... is that known?

Mr. Petersen: As far as... my recollection is that the facts, those facts are what the officer related as connecting the person to criminal activity.

Middle of the road walking; on a dark street without any lights; might be hit; car clouts in the area, might be car clouting; and the fact that he--

Unidentified Justice: By that you mean vandalism?

Mr. Petersen: --That's it, yes.

So those were the facts.

As I said before, I think that to get into the specific facts and argue the specific facts of these things isn't proper, since it will go to trial again on those facts.

Unidentified Justice: But it won't go to trial on the question of the Respondent's guilt or innocence.

It just goes to trial, doesn't it, on the issue of whether or not there was good faith on the part of the officers?

Mr. Petersen: That's true, that's true.

But it will go to trial on that and the good faith on the officers' part certainly depends to a large extent upon the facts surrounding each of the stops.

Unidentified Justice: Did the district court make any finding as to the need for the injunction issue in this case, whether there was a likelihood that the stops would recur?

Mr. Petersen: He did not, in my reading of his ruling did not.

We are in the process of seeking to have the injunction lifted until this decision from this Court comes down.

But we have not proceeded on that until following our appearance here.

I would like to hit on the... or to just mention the reasonableness of this type of a stop before we conclude, because I think that the governmental interest to deter and detect crime is a major societal interest, a weighty social objective, I think it was stated in Brown.

And the intrusion of being asked for identification this Court has characterized in Bignoni-Ponce and Martinez-Fuerte and Mendenhall as being limited intrusions or modest, whereas when you ask somebody to assume the position and be frisked that is a serious or severe intrusion that can result in great indignity, and I think that's a fair statement.

So when you put that on the scales and you weigh the great governmental interest against the minimal intrusion of asking for identification, I feel that it's fully justified under the circumstances.

I feel that anybody at the bench, the bar or in the audience who was faced with a situation where they saw someone walking around their house on public streets, where people have a perfect right to, at odd hours, early morning hours, because you were concerned or I was concerned, we called the police, that we would think it was reasonable that they asked that person what their name was.

I think it's perfectly reasonable.

Now--

Unidentified Justice: If you asked everybody's name in New York, you'd surely need a whole lot of police.

Mr. Petersen: --I still think it's a valid safeguarding tool, and I think it's important that they be allowed to do that, and I think that the concern of the freedom to move has got to be weighed against the freedom of other people to move also.

And each one interfaces with the other one... excuse me.

Unidentified Justice: Go ahead.

Mr. Petersen: If you had an absolute right to wander, you wouldn't even be able to arrest somebody.

You'd have... it'll lead to total anarchy if you leave it to its logical conclusion.

Unidentified Justice: Your latest hypothetical about a person seemingly lurking around a house late at night prompts this question.

What if it's high noon in Time Square or somewhere in Los Angeles?

Mr. Petersen: I certainly think that the time and the place and the total circumstances, just as in Cortez, the total circumstances play a large role in it.

In Cortez it was the time of the night, the position of the car--

Unidentified Justice: Well then, is your answer that at high noon in the downtown district of Los Angeles, with no indication usually associated with drug transfers, just simply a person walking along, that this statute would not authorize a stop?

Mr. Petersen: --No, not unless there was... you know, it was in the daytime in an Ohio city where Mr. Terry was stopped, and I think--

Unidentified Justice: Cleveland.

That was Cleveland, in the middle of the business district, right in front of the Statler Hotel.

Mr. Petersen: --That's right.

I think it was daytime, and--

Unidentified Justice: Absolutely.

Mr. Petersen: --because, without any other facts, you know, it's what prompts the stop.

Unidentified Justice: Are you suggesting some peculiar rule that applies to Cleveland, but not to the rest of the country?

Mr. Petersen: Oh, no, no, no.

Not at all, not at all.

[Laughter]

I'm sorry if I left that impression.

Unidentified Justice: It's the Statler Hotel.

Mr. Petersen: My intention was to state that a man at high noon who isn't exhibiting any criminal tendencies certainly wouldn't be stopped, or his walking up and down looking like he's looking for a cab.

That's completely different.

It's the totality of the circumstances.

I'd like to reserve some time for rebuttal.

Chief Justice Burger: Mr. Rosenbaum.

ORAL ARGUMENT OF MARK D. ROSENBAUM, ESQ., AS AMICUS CURIAE, IN SUPPORT OF JUDGMENT BELOW

Mr. Rosenbaum: Mr. Chief Justice and may it please the Court:

This case raises fundamental constitutional questions regarding the broad exercise and extension of police authority and the relationship between that authority and an individual in a free society.

Through 646(e), police make and enforce as elements of a criminal law requiring innocent persons to disclose proof of identification upon official demand, deliberately imprecise and evolving standards designed to govern investigatory activities.

Analysis of 646(e) therefore turns upon two basic concerns which, with the Court's permission, I will address this afternoon: first, whether incorporation of the so-called Terry standard as an element of a 646(e) offense, based upon the moment to moment decisionmaking by a police officer, deprives that statute of any objective core; and if so, whether it thereby impermissibly offends due process vagueness doctrine by encouraging arbitrary and discriminatory enforcement, by denying fair notice, and by trenching upon basic constitutional rights of privacy, security and mobility.

And second, whether 647(e) works in two ways to undermine the central importance of the probable case requirement: whether it offends the Fourth Amendment by sanctioning intrusions upon individual security and privacy upon less than probable cause, and upon no other interest than the general one in crime prevention and detection, but not, as Mr. Petersen would have it, based upon whatever incremental advantage exists through the existence of a criminal sanction; and whether it also subverts Fourth Amendment guarantees by converting the power to make inquiry and to investigate upon less than probable cause into the power to arrest and search absent functionally at least the existence of probable cause.

Let me start with the vagueness issue, and let me pay particular attention to the issue which Justice O'Connor has raised, the question of whether or not the statute in fact requires persons within the state of California to carry and to display at all times upon official demand proof of identification.

For in practice 647(e) is functionally indistinguishable from the very sort of stop and identify statute in application which this Court specifically disapproved of in Brown versus Texas.

The consequence of 647(e) is that in California there is a internal passport requirement.

This is true because the basis for a Terry stop and demand, an officer's basis which Mr. Petersen described, is both unknown and unknowable to anyone but the detaining officer, including of course the individual detained.

And this is true for two reasons that go to the heart of the Terry decision: First, the decision stop an individual under Terry is one that is peculiar dependent upon the skill and the experience and the training of the officer.

As Justice Powell stated in Mendenhall and as the Chief Justice has stated in court and in Brown versus Texas, this sort of skill and experience and training simply is not available to the average lay person.

Unidentified Justice: Would you say, then, that a case in which a Terry stop was made is not reviewable by the courts because it's so esoteric they just wouldn't know anything about it?

Mr. Rosenbaum: No, of course not.

What Terry established was an objective standard for courts to review whether or not a stop which took place in the past was constitutional or not.

But the critical point for our purposes with respect to notice is whether the individual on the street, the person who is being detained by the officer, can make a judgment at that time as to whether he or she wishes to state his or her rights under Brown versus Texas and say, I don't believe you have reasonable suspicion here, I don't want to have to disclose my identity to you, I want to rest upon my rights, or whether the person has any opportunity to make that sort of judgment.

Unidentified Justice: What if the statute spoke in terms of probable cause and not articulable suspicion?

Would that affect your argument on this point at all?

Mr. Rosenbaum: Well, that's an interesting question.

I would say first that if the statute had a probable cause requirement it would, first of all, probably be an unnecessary statute, because as Justice O'Connor indicated earlier, at that point the officer can conduct a search.

The officer can actually reach into the individual's pocket.

But with respect to the vagueness question that you're asking about, Justice Rehnquist, I would say it would be a close question, but I would say that there is a difference which this Court has recognized on numerous occasions between probable cause and reasonable suspicion.

Probable cause comes with a lot more freight, and in addition probable cause is a recognition in this society that we will accept different sorts of relationships between the individual and the law enforcement apparatus.

Unidentified Justice: But that's true of articulable suspicion, too, isn't it, if you phrase it in those terms?

Articulable suspicion is some sort of halfway house between probable cause and nothing.

It's better than nothing, but not as good as probable cause.

Mr. Rosenbaum: Yes, and because of that we will permit the police to make certain intrusions upon individual privacy that we won't permit in the nothing situation.

But the issue as far as notice is concerned is whether the individual on the street is capable of making the judgment as to whether the officer who's doing the detention--

Unidentified Justice: Do you think that individual has any better basis for making the judgment if it's probable cause?

Do you think the typical lay person really knows what the components of probable cause are any more than they know what the components of articulable suspicion are?

Mr. Rosenbaum: --Well, let me answer that in two ways.

First, as I indicated to Your Honor, it is a close question, but probable cause comes with a different set of freight and it is more understandable.

Moreover, we are talking about a vagueness doctrine, and as this Court has repeatedly recognized, last time in the Hoffman Estates case, the drug paraphernalia case, the Mesquite case, the case involving the licensing ordinance, we will adjust our vagueness standards depending upon the constitutional rights that are involved.

In the probable cause situation which you hypothesized, we are willing to draw perhaps a less strong line in terms of what we would expect from the individual himself.

But the basic point, of course, is that in the probable cause hypothesis that you state there simply is no need for the sort of statute that you're describing in the first place.

And returning again to the notice point that we're talking about, the problem of the individual on the street, not having the skill and the training and the experience of the officer, is compounded because quite fundamentally that individual simply doesn't have the information available to the officer.

What precipitates the Terry stop may be an informant's tip, as in Adams versus Williams, may be a DEA profile, as in Reed versus Georgia, it may simply be a call from the patrol car.

But whatever the basis of that information, the individual on the street, who ought to be able to decide comfortably with the knowledge that at the very minimum that individual has the rights guaranteed by this court in Brown versus Texas, simply has no way of making an assessment as to whether or not a forfeiture ought to exist here, whether or not it is proper to disclose identification.

Unidentified Justice: Is this your... do you think this is your strongest point here, counsel?

Mr. Rosenbaum: I have two strong points with respect to vagueness, Your Honor.

The first is the notice--

Unidentified Justice: Do you think the vagueness argument is your strongest point?

Mr. Rosenbaum: --I think both the vagueness argument and the Fourth Amendment arguments are compelling in this particular case.

The other prong of the vagueness argument that I want to focus upon that complements this particular notice requirement is the fact that, as an incorporation of the Terry standard within 647(e), that incorporation means that the statute has no objective core.

It is like the Massachusetts flag desecration statute which this Court ruled unconstitutional in Smith versus Goguen.

Like the phrase there, "treats contemptuously", there is no basis here for an objective standard because what is taking place here is that an element of the crime is being defined by the moment to moment decisionmaking of the officer on the street.

What 647(e) does is to codify an officer's suspicions regarding wrongdoing and then to criminalize the failure of an individual to allay those particular suspicions or to furnish information.

And while we are perfectly willing, as a matter of recognizing the importance of investigations, to say that where that standard appears as part of an investigatory statute or part of an investigatory standard, to consciously relax our standards of vagueness--

Unidentified Justice: Is it your argument that the statute is vague or that it's overbroad?

Mr. Rosenbaum: --It is that the statute is vague because it is not capable of any constitutional application.

There is no way that this statute can be applied without causing a forfeiture of the rights which this Court guaranteed in Brown versus Texas.

Unidentified Justice: You say it's not capable of being applied in any situation?

Mr. Rosenbaum: That's correct, because whether you look at vagueness or whether you look at the Fourth Amendment argument, what is inherent in this statute is a forfeiture of the rights of privacy and security and mobility that were guaranteed under Brown versus Texas.

The arbitrary and discriminatory enforcement therefore flows from the use of this investigatory standard as one of the elements.

And as I indicated, while this Court has indicated, has stated that it will relax standards of vagueness in circumstances short of a criminal sanction, where the element becomes part of it different constitutional considerations flowing from the fact that a breach of a criminal statute results in arrest and imprisonment means that we have to use a tighter consideration.

And if there be any doubt that this statute in fact works arbitrary and discriminatory enforcement, this Court need only look at the facts of this case and the studies perceiving urban realities that we cite in our papers.

For in this case Mr. Lawson, a black man of unconventional appearance, was stopped not less than 15 times over a 22-month period on occasional visits to the San Diego area, always in white neighborhoods, always by white officers.

And on not one of those occasions was he ever charged, arrested or prosecuted for any other offense.

Unidentified Justice: Would you think if, added to whatever the other facts were, the Respondent here, the Appellee, was wearing a stocking cap over his head with holes for the eyes?

Mr. Rosenbaum: That would also be an unconventional appearance.

Unidentified Justice: Well--

[Laughter]

I was thinking of something a little more than unconventional.

Mr. Rosenbaum: That of course would permit a Terry stop.

But it still wouldn't answer our basic question with respect--

Unidentified Justice: Well, would it fit under this statute?

Could he be properly stopped under this statute?

At night, after dark, stocking mask over his face?

Mr. Rosenbaum: --Yes, the individual--

Unidentified Justice: He could be stopped?

Mr. Rosenbaum: --Yes, could be stopped and could be requested for identification.

But the question in this case is not whether or not those questions can be asked.

As Justice White indicated in Terry, those questions may be asked of any individual detained.

Unidentified Justice: They could also... they could detain him until they asked the questions.

Mr. Rosenbaum: That's correct.

Unidentified Justice: You agree with that.

Mr. Rosenbaum: That's correct.

Unidentified Justice: But your point is he should not be forced to answer the question at the pain of criminal penalty.

Mr. Rosenbaum: That's correct.

And turning to the Fourth Amendment analysis, it was... your statement in Terry itself in the concurring opinion has since been restated, both in Davis, where it was regarded as "settled principle", and in Dunaway versus New York... that really indicates the underpinnings of the Fourth Amendment argument here, because this statute undermines the Fourth Amendment in two particular ways.

First, as Justice O'Connor was indicating, what it does is to in every application dissolve the probable cause requirement unless an individual is prepared to waive his or her constitutional rights with respect to interference with police officers.

This statute, if you think about it, is really nothing more than a newfangled variation of the same sort of vagrancy law that this Court struck down in Papachristou versus Jacksonville, because there it manufactured probable cause to arrest persons appearing suspicious.

This statute manufactures probable cause to arrest persons appearing suspicious who refuse to allay those suspicions.

Let's look at how thus statute actually works.

Unidentified Justice: May I interrupt with one question?

Mr. Rosenbaum: Certainly.

Unidentified Justice: Following up on the Chief Justice's hypothetical question, supposing an officer does encounter, 3:00 o'clock in the morning in a residential neighborhood, a person wearing a stocking cap.

Is there anything he can do to that person?

He can stop him and ask him questions, and say the man says, I won't answer.

Is there any remedy that's available to the police?

Mr. Rosenbaum: The officer can ask the questions.

If there is no response, as Justice White pointed out in Terry, that can alert the officer's need for continuing observation.

But it is the Fourth Amendment that answers the question that you pose, Justice Stevens, because if the failure to answer and to do nothing more than place the individual under close surveillance--

Unidentified Justice: But can the officer attach evidentiary significance to the failure to answer, if you assume there's a constitutional right not to?

Mr. Rosenbaum: --If the officer could do that, then what would happen is there would be probable cause to arrest and this statute would not exist.

Unidentified Justice: You mean it would be all right to stop him and if he doesn't answer say, well, now I've got probable cause?

Mr. Rosenbaum: No, to the contrary.

That's the nub in this particular statute.

If a refusal to answer, and it's just a simple question, what's your name, and the person just stands silent, if in fact that would not cause enough information to be added to the initial suspicion to cause probable cause, then the Fourth Amendment demands that the person be let go.

More questions could be asked.

The officer could say, why won't you give us any answer, what are you doing in this neighborhood, whatever questions a trained officer believes appropriate.

But if at the conclusion of those questions the officer doesn't have enough information to form probable cause, then the Fourth Amendment mandates that the individual be released and whatever appropriate surveillance continue, whatever appropriate observation continue.

But that's a balance that I'm not making; that is a balance that is inherent in the probable cause requirement.

Unidentified Justice: But you're saying that there's no way a state can pass a statute to deal with the hypothetical case I give you, that would enable the officer to elicit the name and address of the person from an unwilling... if he didn't want to give it?

Mr. Rosenbaum: That's correct.

And that really comes close to what the case, of course, is all about.

That is, the relationship between law enforcement and the individual and what may be our repugnance, on civic basis or moral basis, to individuals not furnishing answers.

But to go so far as to arrest because of failure to provide information, without anything more... this isn't a Michigan versus DeFillippo case, where the person first says, I'm Sergeant Mash, and then I'm someone else, and that may accrete enough information to cause probable cause.

Short of that, the officer cannot arrest the individual for failure to give a name and identification.

Unidentified Justice: Would you suggest that if there is probable cause to arrest and everybody concedes it, the state could then say that once there's probable cause to arrest it is also a crime to refuse to give the name?

Mr. Rosenbaum: No, because when--

Unidentified Justice: No, what?

Mr. Rosenbaum: --No, I think that would be improper.

I think finest it would most likely be unnecessary because of--

Unidentified Justice: Well, you're making a... it wouldn't be a Fourth Amendment argument?

Mr. Rosenbaum: --No.

There's a Fifth Amendment problem that would--

Unidentified Justice: That's where you would--

Mr. Rosenbaum: --Right.

Once the probable cause to arrest takes place, then we have either a custodial interrogation setting or something remarkably close, and it would be Fifth Amendment considerations that would govern our judgment.

But I want to return to how this statute works with respect to probable cause in its actual operation.

What is the day to day application, not a fanciful hypothetical, but how does it really work?

An officer approaches an individual and detains that individual.

The individual is frozen.

The officer says to the individual, what is your name and address?

And the individual doesn't answer, perhaps is silent, perhaps refuses to answer whatsoever.

What is the state of affairs in terms of Fourth Amendment constitutional doctrine at that time?

Well, we certainly, assuming the officer has in good faith made a Terry stop, we have reasonable suspicion.

But we don't have probable cause to make that arrest.

And what that also means under Terry and this Court's decisions in Robinson versus United States, in Gustavson versus Florida, is that the officer at that point cannot make a search.

Then what happens with 647(e)?

The statute is activated, an arrest is made, and the officer at that point can make an arrest and a search and obtain the very information which moments ago the Fourth Amendment precluded.

It is a probable cause manufacturing machine.

Let's look at it in another way.

An officer goes up to a person and wants to reach into the person's pocket to get the ID, but is precluded by the Fourth Amendment because they only have Terry.

The officer says to the individual, you reach in your pocket and other identification, and the individual refuses or is silent.

647(e) is activated and it is the law... it the law... that then permits the officer to reach into the individual's pocket and extract the very identification which just moments ago the probable cause requirement absolutely forbade.

There is no way--

Unidentified Justice: --It would also authorize a complete search incident to arrest.

Mr. Rosenbaum: --That's correct.

It is more it is more than just a reaching in for identification.

It is that plus, because then the individual is subjected to all the constitutional deprivations that attach to the arrest and to the full search that Just.

White just mentioned.

Unidentified Justice: Where do you get that from, where they can make a full search?

Mr. Rosenbaum: They can make a full search incident to arrest.

Unidentified Justice: Custodial arrest.

Mr. Rosenbaum: Yes, sir.

Unidentified Justice: On the street?

Mr. Rosenbaum: That's what this Court--

Unidentified Justice: I thought you could make a pat-down.

Mr. Rosenbaum: --Perhaps I'm not being clear.

I'm discussing the situation where under this statute the officer obtains probable cause.

Unidentified Justice: I'm just wondering whether you're getting too far away from this case.

Mr. Rosenbaum: Well, what I'm saying is that actually your point indicates how the Fourth Amendment can be subverged, because they start with Terry and very limited powers of the frisk, and all of a sudden with 647(e) entering the case it is a full search incident to arrest that is permitted.

And that's one of the Fourth Amendment problems with the statute.

Unidentified Justice: Terry gives you that same sort of acceleration on the facts of Terry, doesn't it?

If you reach in and find someone is carrying a concealed weapon and carrying a concealed weapon is a crime, all of a sudden you do have probable cause.

Mr. Rosenbaum: Yes, and that's because society has recognized that the possession of a concealed weapon is a substantive offense that we will punish and permit to have a search incident to afterwards.

But what's the substantive offense in our case?

In our case it is a crime out of what is not a crime.

All the person has done is refuse to allay suspicions, either silently, noisily or whatever.

And all of a sudden that becomes, not like a concealed weapon, but that becomes the basis for the full arrest and search incident to arrest.

Unidentified Justice: Well, that's what the court approved in Michigan against DeFillippo, though.

Mr. Rosenbaum: Yes, but in Michigan versus DeFillippo, the court declared that statute there unconstitutional.

And that issue--

Unidentified Justice: Surely, if the statute had been constitutional it all would have fallen.

Mr. Rosenbaum: --If the statute is constitutional, my argument obviously falls, but what I'm indicating--

Unidentified Justice: No.

Your demonstration of what flows fro the statute is exactly what happened in De Fillippo.

Mr. Rosenbaum: --Yes, and... but the question is what happens to the probable cause requirement in those circumstances.

And that's just one of the ways that the probable cause requirement is undermined in this particular case.

Let's look at what this does with respect to permitting intrusions upon constitutional rights of security and privacy and mobility upon less than probable cause for the governmental interest here that is accrued through the existence of a statute; that penalizing the disclosure of identification.

And in this respect, I would direct the Court's attention to its decisions in Terry and Brignoni Ponce and Summers.

In Terry, this Court stated that it would permit a frisk of an individual, non-stopped, upon less than probable cause but not upon a general interest in crime prevention or detection.

Rather, the Terry frisk was specifically predicated upon preserving an officer's safety in circumstances that would warrant concern.

It was not prevention or detection, though obviously, that option was available to it.

Unidentified Justice: But the initial detention is, of course.

Mr. Rosenbaum: Yes.

And what we're looking at in this case is what will we permit short of probably cause in additional to estop.

And it is our position that this Court has never permitted an intrusion of this sort of character beyond the stop itself for an interest just from the generalized one, in crime prevention or detection.

That's what Terry indicated with respect to the justification of the frisk.

Let's look at Brignoni Ponce which I would contend in many ways controls this case.

Indeed, I would suggest that Mr. Petersen's argument simply cannot be squared with the holding of that case.

In Brignoni Ponce, this Court examined a roving patrol that was interested in determining whether or not aliens, in violation of immigration laws, were being transported.

And this Court stated that upon less than probable cause, upon reasonable suspicion, stop estop would be permitted.

Now, what is significant about this case for our purposes here is that that particular style, that particular intrusion to ask questions regarding immigration status, was purely an investigatory act.

It was no less investigatory than the sort of stops of Mr. Lawson that took place in the San Diego area.

But what is critical here is that that investigatory stop was sanctioned not upon the general interest of crime prevention or detection which Mr. Petersen would like to sustain this statute on, but rather, was predicated very specifically on this nation's peculiar problems in the area of immigration.

And the Court will recall Justice Powell, at pages 881 and 82, specifically stating that any further intrusion beyond asking about immigration status or asking about the suspicious circumstances regarding immigration would not be permitted under the Fourth Amendment; that there had to, at that point, be consent or probable cause.

So in circumstances remarkably identical to the circumstances here, the general interest in crime prevention or detection was not enough to sustain the intrusion.

And I would submit to this Court that that is predicated upon an understanding as to really the degree of advantage that law enforcement gains through the actual operation of a statute like this.

Not, as Mr. Petersen would have it, some sort of global discussion of crime prevention or detection.

But rather, what is involved simply by having this particular statute available.

Let's look at that.

By Mr. Petersen's own tally, there are only some eight states in the Union, only some eight states, that even have statutes like this.

And neither Mr. Petersen nor any of the amiti filing papers on his behalf, has cited to this Court a single study or a single fact that would indicate that it is the existence of this statute that is responsible for the advantages gained.

Nor would the statute itself preclude investigations from going forward, for as Justice White has indicated in his statements, the individual is still under police surveillance, the officers are still free to continue whatever surveillance.

And perhaps the most interesting point of all flows from the record in this case, because when you examine the 15-odd stops that happened, in the majority of stops when the officer sought to attain information from Mr. Lawson regarding identification, they didn't use the statute as the basis.

That statute's advantage, as an increment to crime prevention or detection, while I'm not suggesting is insubstantial, while I'm not suggesting is non-existent, certainly is not of the sort or magnitude that would in any way cause the gross departure from the probable cause requirement that is stated here, that is suggested here by the government's argument.

And it is really here in appreciation of that fact and in appreciation of the discussion that we had with respect to vagueness, that it becomes clear as to what this case is all about.

For it is here that the fundamental policies of vagueness and the Fourth Amendment coalesce.

For while in circumstances short of probable cause, it may be our moral and civic judgment that individuals questioned by the police should respond, including even disclosure of identity, what finally defines the character of a free society and separates it from a totalitarian one is ultimately the relationship between the individual and the law enforcement apparatus... how much space exists, whether one is free, or whether one is subservient.

And in the end, this case is much more than a case about the amenities of life.

What this case is about in a free society is nothing less than the integrity and the autonomy of the individual, and what our collective repugnance will be to an attempt to destroy those particular values.

If the Court has no further questions, I have completed my argument.

Chief Justice Burger: Mr. Petersen, do you have anything further?

You have five minutes remaining.

ORAL ARGUMENT OF A. WELLS PETERSEN, ESQ. ON BEHALF OF THE APPELLANTS, -- Rebuttal

Mr. Petersen: Mr. Chief Justice, may it please the Court:

Appellant seems to merge his lack of notice and Fourth Amendment rights together in arguing that a person really doesn't know what might constitute suspicious behavior.

This is true of any arrest.

Now, if I or anyone else happens to be dressed like a criminal, physical appearances of a criminal--

Unidentified Justice: What's dressed like a criminal?

Mr. Petersen: --Well, the police report comes in that a crime has been committed and the criminal was dressed in a certain way, had a certain physical appearance--

Unidentified Justice: Oh, if he corresponds, if he meets a description that's been sent out.

Mr. Petersen: --Meets the description, and is driving a car that was used in a crime.

To be perfectly innocent... happened to me once.

You're stopped.

There's nothing wrong, absolutely nothing wrong there, and I was not put on notice that dressing that way, appearing that way or driving in that car was anything other than completely innocent.

However, I was stopped.

And it can happen to anyone.

And you cannot put the onus--

Unidentified Justice: Mr. Petersen, that seems to demonstrate the validity of your opponent's argument.

Mr. Petersen: --No.

Not so.

Unidentified Justice: The person stopped doesn't know the basis for the stop.

Mr. Petersen: That's right.

And that's... necessary.

I identified myself and was allowed to go on.

Unidentified Justice: I know you did.

But how does the person stopped know whether the statute requires him to answer the questions.

Mr. Petersen: It's not necessary.

There's no way you can possibly let everybody know what, in any particular set of circumstances, is going to be suspicious to a policeman.

Unidentified Justice: And so your answer is that the person stopped can never know whether he has an obligation under the law to answer the question.

Mr. Petersen: Once the policeman asks him, he has the obligation to answer him.

Unidentified Justice: Even if the policeman doesn't have reasonable suspicion?

Mr. Petersen: Probable cause, reasonable suspicion.

Unidentified Justice: But does he have an obligation to answer if the policeman does not have reasonable suspicion?

Mr. Petersen: He's got a good lawsuit afterwards.

Unidentified Justice: But you didn't answer my question.

Mr. Petersen: For the civil suit.

Yes, he has an obligation to answer because you have an obligation under any arrest--

Unidentified Justice: But then the statute is not confined... then the statute is not confined in its application to cases in which the officer has reasonable suspicion.

Mr. Petersen: --Neither are cases of arrest always confined within probable cause to arrest.

Unidentified Justice: Well, but that's the way you speaking for the state of... or city of San Diego... interpret this statute.

Mr. Petersen: For the state of California.

Yes, sir.

Because otherwise, all your obstruction of justice--

Unidentified Justice: Well, maybe that's the way... what you mean.

I just want to be sure that's your position.

Well, that's contrary to the California Court of Appeals' decision in Solomon, isn't it?

That you can be required to answer under this statute if there isn't reasonable or articulable suspicion under Terry?

Mr. Petersen: --The thing is... you're getting down to the practicality.

In a legal sense, no.

But you're relying on your police to be imposing this code section constitutional, and anybody can do anything improperly is all I'm saying.

Unidentified Justice: Of course.

But--

Mr. Petersen: But certainly, you expect him to have the articulate facts.

Unidentified Justice: --We don't need counsel to inform us of that, I don't think.

But supposing in the Superior Court of San Diego County, a prosecution is brought under this ordinance, and all the prosecution proved was that the defendant had been stopped and asked for information, and it was clear there was not Terry grounds for stopping the individual.

Wouldn't the defendant be entitled to a directed verdict at the close of the prosection--

Mr. Petersen: Certainly.

And he probably would bring a lawsuit for false arrest, a civil suit.

I'd also like to mention the fact that what he's after is a right to anonymity; not a right to freedom of movement.

And nothing... there's no constitutional right to anonymity.

And I think it is very imminently more reasonable to require identification of a person than it is to, in every instance... you can't stop unless you've got a right to pat-down.

Unidentified Justice: --If you really mean what you say, you could make it a crime to refuse to identify yourself whether there's reasonable suspicion or not.

There's no constitutional right to anonymity; and therefore, if a policeman walks up to you without any reasonable suspicion and just happens to ask you, what's your name, and you say sorry, it's none of your business, you could be committing a crime.

Mr. Petersen: No, not without the articulable fact.

Unidentified Justice: Oh, there is a constitutional right, then, to anonymity.

Mr. Petersen: Well, yes.

Under most circumstances, I'd have to agree with you, yes.

But not when you're found under suspicious circumstances of Terry.

Most statutes, by the way, of this type are city and county ordinances and are not state statutes, and empirical data would be impossible to develop because you would have to have identical law enforcement agencies, identical societies, identical laws, and that's impossible.

There is a duty not to arrest... not to resist arrest, even if the rest is improper.

And there are obstruction of justice statutes throughout this country that would all be held unconstitutional if we didn't have the standards.

But I submit that under the standards of Solomon in 647(e),... thank you.

Chief Justice Burger: Thank you.

the case is submitted.