Brown v. Texas

PETITIONER:Zackary C. Brown
RESPONDENT:Texas
LOCATION:Magoffin Avenue, El Paso

DOCKET NO.: 77-6673
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: State trial court

CITATION: 443 US 47 (1979)
ARGUED: Feb 21, 1979
DECIDED: Jun 25, 1979
GRANTED: Oct 16, 1978

ADVOCATES:
Raymond C. Caballero – for appellant
Renea Hicks – for appellee, pro hac vice, by special leave of Court

Facts of the case

On December 9, 1977, El Paso Police Officers Venegas and Sotelo were cruising in a patrol car. At 12:45 p.m., they observed Zackary C. Brown and another man leaving an alley in opposite directions. The alley was in an area known for a high incidence of drug traffic. The officers believed the situation was suspicious and stopped Brown for questioning. They asked Brown to identify himself, and he refused and asserted that they had no cause to stop him. When the officers frisked him, they did not find any drugs or other suspicious material on Brown. He was arrested for violation of a Texas statute that made it illegal for a person to refuse to identify himself when a police officer lawfully requests it. Brown was taken to the county jail, where he did identify himself, and was charged with the violation.

Brown was convicted in municipal court and fined. He then exercised his right to a trial in the county court and moved for dismissal on the grounds that the Texas statue was unconstitutional under the First, Fourth, Fifth, and Fourteenth Amendments. The motion was denied and he was convicted.

Question

When the police detain someone because that person refused to identify himself, does it constitute a seizure subject to the restrictions of the Fourth Amendment?

Warren E. Burger:

We’ll hear arguments next in Brown against Texas.

We’ll wait just a moment Mr. Caballero.

Raymond C. Caballero:

Yes, Your Honor.

Warren E. Burger:

We need six to proceed.

Raymond C. Caballero:

I don’t know the quorom was.

Warren E. Burger:

Mr. Caballero, I think you may proceed whenever you’re ready now.

Raymond C. Caballero:

Mr. Chief Justice and may it please the Court.

Brown versus Texas is a direct appeal from the county court at law, number 2 for El Paso County, Texas.

From a misdemeanor conviction for the failure to identify himself by appellant and to the report of his name and address.

The facts are that on December 9, 1977 at approximately noon, two uniformed El Paso police patrolman in the squad car looked down an alley and noticed appellant and another individual who were apparently only a couple of feet apart walking in opposite directions.

The officer could not tell if the individuals had met or had spoken.

Both men were black.

No other activity was noticed.

There was no report of suspicious or criminal activity.

The officer stated that they decided to stop appellant to ask him his name and that that was the sole purpose for the stop.

The appellant was stopped and the officers did ask him for his name and also for the reason for his presence in the alley.

Appellant protested the stop stating that the officer had neither right nor reason to detain him.

He did not resist the arrest or stop.

Brown was padded down then and no weapons, drugs or any of the contraband were found on his person.

But he was placed under arrest for the failure to identify himself.

The other individual in the alley was never stopped or questioned.

Now on the way to jail, appellant gave the officers his name but he was still booked for the offense the officers stating within his viewpoint the offense was complete at that point.

He was later on found guilty in an on-jury trial and was fined 500 — $45.00.

Now, the provision in question does not carry any term, jail term or imprisonment simply provides for a maximum penalty of a $200.00 fine.

The provision is Section 3802 of the Texas Penal Code which makes it a misdemeanor to refuse to give a report of one’s name and address to a peace officer who has lawfully stopped one and requested that information.

This case is significant and different from DeFillippo that you’ve just heard in the following respects.

The Detroit ordinance at least attempts to put in some sort of a Terry Standard that there must be suspicious conduct or criminal conduct afoot which would allow a police officer to investigate further and ask for one’s name.

The Texas statute does not have any such requirement.

Byron R. White:

Oh, it has the word awful.

Raymond C. Caballero:

That’s correct, Your Honor.

Byron R. White:

Well if you assume that the Texas Courts understood what a lawful stop was and convicted this person, you would have thought that that as a initial matter, they thought to stop was a lawful and that therefore there was at least a voluntary stop.

Raymond C. Caballero:

I think Your Honor that if you use the word lawful in a statute such as this, you can I suppose read in all kinds of standards.

However to the person reading the statute on its phase —

Byron R. White:

Oh, that’s a vagueness argument?

Raymond C. Caballero:

That’s correct Your Honor.

Byron R. White:

That’s a vague — you’re making a vagueness argument but you were just making a statement that the Texas statute didn’t have any standard in a — different from the Michigan —

Raymond C. Caballero:

What I’m saying is simply by reading unlawful, there’s nothing to tell you whether it must be criminal activity for example.

It may be that the Texas legislature thought it was lawful for a person, police officer to stop a person on walking down the street and asking for his name for no other reason.

Byron R. White:

Well then you — you do are suggesting that neither the Texas legislature nor the Texas Courts knew what lawful meant?

Raymond C. Caballero:

I’m suggesting they probably didn’t consider it carefully enough Your Honor.

The statute is not drafted carefully enough to set forth what is lawful and what is not and that is one of our principal arguments here.

Now, also in the DeFillippo there was evidence of other criminal activity, drunkenness, perhaps some sort of indecency or sexual conduct, possession of drugs, possibly impersonation of a police sergeant.

In this case here, we’re solely dealing with an offense involving only one type of criminal conduct and that was the offense of failing to identify himself.

Now, DeFillippo did not involve a prosecution for failure to identify.

This case it does involve that kind of prosecution.

Also, in DeFillippo, of course it was a question of good faith reliance by the police officer on the ordinance.

Before the trial court and before this Court, the appellant has challenged its unconstitu — the constitutionality of the Texas statute for facial vagueness and for overbreadth because it punishes not innocent conduct Your Honor but protected conduct and there’s a big difference.

Conduct protected by the First, Fourth and Fifth Amendments to the United States constitution making the statute therefore invalid under the Due Process Clauses of the Fourteenth Amendment.

First question is comes up into the vagueness argument, can a police officer ask someone questions.

This is apart from the ability to stop someone.

Can he ask someone a question?

Point brought up by Mr. Justice White —

Potter Stewart:

Well, the answer to that is clearly a yes.

He can ask, can he?

Raymond C. Caballero:

I agree with you Your Honor.

I agree with it.

He has the same rights, I can ask people questions.

I think —

Potter Stewart:

It takes — the police officer can.

Raymond C. Caballero:

It is correct.

Raymond C. Caballero:

He has the same rights as any other citizen to ask questions.

Potter Stewart:

Well, at least those rights.

Raymond C. Caballero:

Up to a point Your Honor where it becomes harassment or where you’re —

Potter Stewart:

But to inquire what is your name?

Raymond C. Caballero:

Simply that point, for example, if I’m arguing the case up here and the police officer came up to me right now and asked me what is my name, I don’t know if that would be a reasonable type of inquiry Your Honor.

I think there are conceivably —

Potter Stewart:

But Mr. Brown wasn’t arguing a case here, was he?

Raymond C. Caballero:

That’s correct Your Honor.

I’m saying that conceivably there could be limitations on a person’s right to ask questions.

But I think as a general proposition under most fact situations he does have a right to ask questions.

Now, what about the stop?

The way I read Davis versus Mississippi, the Fourth Amendment is applicable to any kind of stops, detentions, arrest, they’re all the same as I understand the reading of Davis versus Mississippi.

Potter Stewart:

Oh, Terry against Ohio said the same thing, didn’t it?

Raymond C. Caballero:

I believe it did Your Honor.

In that case I can explain Terry versus Ohio, Judge — Your Honor.

The only way I can see it is that under Terry, you’re simply trying to protect the life of a police officer who — thinking there is criminal activity afoot, number one and two thinking that he might be in a dangerous position is simply able to pat someone down before he starts asking the questions.

Let’s move —

Warren E. Burger:

Is this — for hypothetical purposes, out of the criminal area and say that a police car called to an automobile collision and there are a number of people around.

Do you suggest that the state has no police power to require the persons who observed that automobile collision to give their names to the police officer?

Raymond C. Caballero:

Well, Your Honor I’m not suggesting that.

That’s the problem —

Warren E. Burger:

No?

Raymond C. Caballero:

— with this case, it is not limited to civil or criminal incidents.

And what I suggested to the Court in my brief was that Texas used to have a predecessor statute which was not a penal statute, kind of a material witness type statute provided that the police officer could round up the witnesses to a civil or a criminal incident which —

Warren E. Burger:

Well then just to take one step at a time, the First Amendment is no barrier to a statute requiring a person to identify himself to a police officer at high noon with no criminal activity going on.

Raymond C. Caballero:

Your Honor, the statutes that I’m talking about does not make you identify yourself.

You have a choice of doing two things.

First, you can identify yourself or if you stand mute and refuse to identify yourself, then the officer must take before a neutral magistrate at that time make a provision for a material witness bond or to identify yourself.

But no statute — I’m not suggesting to this Court that any statute, civil or criminal can make you under the pain of criminal violation state what your name is or say anything.

Anything that comes from your mouth as far as I’m concerned Your Honor is a violation of both the First and Fifth Amendments if its orally compelled.

Warren E. Burger:

But then if you refuse to do that before the magistrate in this hypothetical situation then what?

Raymond C. Caballero:

Then he places you under material witness bond.

If you can’t make a bond then you’re in jail Your Honor.

Now, I am —

Warren E. Burger:

May I suggest to you that that pretty well washes out the First Amendment arguments you’re making.

Raymond C. Caballero:

Well, let me talk about the First Amendment then Your Honor.

Let’s assume that you have a fact situation of NWACP v. Alabama that is the situation where you have the group persons who for their own protection are trying to unite and let’s say get rid of racial segregation which was the case there.

And the state wasn’t violently opposed to — at that point that leads to the NWACP.

And you want to find out as a state officer who the members are of the NWACP.

Now, this Court held under NWACP v. Alabama that you could — a Court could not compel NWACP to give up its membership lists.

I’m suggesting to this Court that there is a First Amendment violation potentially here if I could stop every single person who had attended an NWACP meeting on their way out of the meeting and ask them, “What is your name?”

A person refuses to give his name then I’m marching him on down to jail, have him fingerprinted and try to ascertain your identification through some other means.

I am suggesting Your Honor that there is a First Amendment violation.

William H. Rehnquist:

Wasn’t that decided at least in part, to — on the theory, the freedom to assemble and petition for redress of grievances?

Raymond C. Caballero:

In NWACP?

William H. Rehnquist:

Yes.

Raymond C. Caballero:

They spoke more broadly than that Your Honor.

I believe they said that privacy in one’s associations are involved in the freedom of the association that in some instances your freedom to associate if endangered if the privacy is not there, the arraigning student type thing or the — your ability to redress and to protest anonymously Your Honor.

William H. Rehnquist:

Here, your client I take it wasn’t engaged in any comparable activity to that — in NWACP versus Alabama.

Raymond C. Caballero:

No, Your Honor.

I think my client’s activity is closer and still First Amendment protected right which this Court decided in Norwell versus Cincinnati wherein a police officer approached a gentleman walking under — with a suspicious person activity — report afoot and he stopped to Mr. Norwell and he asked him what he was doing there at that time of the night and Mr. Norwell simply said, “I don’t tell you anything”, in those words.

And this Court held out it was protected activity at a non-provocative protest of an arrest.

And I think my case is closer to that —

John Paul Stevens:

Yes, but that draw off from freedom of speech?

Raymond C. Caballero:

I believe you just said it was protected activity.

I can only assume —

John Paul Stevens:

Oh, your man here is arrested for — not what for what he said but for what he didn’t say.

Raymond C. Caballero:

Well, he did say something Your Honor and he did pretty much the same —

Warren E. Burger:

And he was arrested for that.

Raymond C. Caballero:

Pardon me Your Honor?

Warren E. Burger:

Was he arrested for what he did say?

Raymond C. Caballero:

They didn’t — he was arrested for what he did not say.

Warren E. Burger:

Yes, that’s —

Raymond C. Caballero:

That’s correct.

Warren E. Burger:

But the fact was —

Raymond C. Caballero:

But he did say something and that was that he protested the right and reason of the officers to detain him under the circumstances in this case.

By implication, if you say to take the question earlier what lawfully means, by implication if I only have to give my name under the Texas statute when I’m lawfully stopped it would mean that if I am not lawfully stopped then I don’t have to give my name.

Now when in — is one person supposed to know that he is not lawfully stopped under the City Civil case, under Terry, under Davis versus Mississippi, a person — let’s assume you had a constitutional scholar walking down the street and he knew about those cases —

Byron R. White:

Now when is — somebody is supposed to know when there is probable cause to arrest?

Raymond C. Caballero:

You’re not — you don’t — you’re simply arrested, that’s a fact.

But in this case, apparently a person has an option at least for a little while to think, “Is this a lawful arrest or is it not?”

Byron R. White:

Well, let me ask you.

What if the — what if there’s a probable cause — what if a policeman thinks there’s probable cost to arrest and then he arrests him then he — and he ask him his name?

Do you think the state could then make the refusal to give the name a crime?

Raymond C. Caballero:

Alright sir.

Then you’re getting into a different area Your Honor.

Byron R. White:

Well, could you or not?

Raymond C. Caballero:

No, I don’t think you can Your Honor because he’s still protected activity.

Byron R. White:

Because it will be vague?

Because it —

Raymond C. Caballero:

No.

Byron R. White:

— will be vague?

Raymond C. Caballero:

No, Your Honor.

That’s getting out of the vagueness and — then you’re getting into the area of overbreadth because at that point what you’re doing is you’re making criminal conduct which is protected by the First, Fourth and Fifth Amendments not because of vagueness.

You’re setting aside the vagueness argument at that point.

Now, the California statute, the Detroit ordinance in this case, the Henderson City ordinance all kind of incorporate a little bit better than this statute does, the Terry type criteria.

In this case, there is nothing, I don’t think you can read anything near Terry into the words lawfully in this case.

Also, what is —

John Paul Stevens:

Mr. Caballero, could I just ask this, you didn’t challenge the lawfulness of the stop in this case, did you?

Raymond C. Caballero:

By following the motions to suppressed, I did not.

Raymond C. Caballero:

I challenged the statute on its face Your Honor.

John Paul Stevens:

So that the lawfulness then we assume?

Raymond C. Caballero:

I think that my client’s activity, let’s say in this case if they did have probable cost to stop my client, I could still challenge the statute.

I don’t think you can assume lawfulness in this case.

What I’m saying is that there may conceivably be cases where it would not be a lawful stop.

This may or may not be a lawful stop.

I’m not conceding and it did not at the trial court —

John Paul Stevens:

Well, you didn’t challenge it.

Raymond C. Caballero:

I did Your Honor.

I state — at page 25 — page 18 of the record, if the purpose of the stop was I want to ask this fellow’s name then of course I would contend that’s –that that’s not a lawful purpose.

That’s in the middle of page 18 of the record.

I have never conceded that this stop was lawful.

Warren E. Burger:

Well, you go on and say I am assuming the state here through its police officers had some reason to make an initial stop.

Raymond C. Caballero:

That’s great, that point I didn’t know Your Honor.

I already had — heard the evidence and that was before the trial.

But I have never can assume — assumed or conceded that this was a lawful stop in this case.

John Paul Stevens:

Well, let’s go up a step further, what about after the trial?

Did you argue that it was a not a lawful stop?

Raymond C. Caballero:

Your Honor, I have all — no I did not.

I have always argued that the statute on its face —

John Paul Stevens:

Well, I understand that its face is bad but —

Raymond C. Caballero:

No, I —

John Paul Stevens:

What do we do with your argument if we should view the — there’s no element of dangerousness in the situation as I remember the fact.

Raymond C. Caballero:

That’s correct.

John Paul Stevens:

What if our view would be that this did not come within Terry?

What do we do with the case?

Raymond C. Caballero:

The reason I have attacked it on its face Your Honor, I can see — I can — eye to eye, my position before this Court, this is the same kind of case as See versus Seattle and Camara versus Municipal Court of San Francisco and that is in those cases they’re attempting to make criminal a person’s implication of his rights under the Fourth Amendment.

No motion is suppressed, no nothing, simply an attack on the invalidity of the statute on its face.

I don’t believe you have to have a motion to suppress in order to raise facial invalidity on Fourth Amendment grounds.

And you did not have to have it as See versus Seattle or Camara versus Municipal Court.

Raymond C. Caballero:

What I’m saying is —

John Paul Stevens:

I’m not sure you answered my question but maybe that’s —

Raymond C. Caballero:

Well —

John Paul Stevens:

Does it make any difference when we in fact view the stop is lawful or not?

Raymond C. Caballero:

No, Your Honor.

Not if —

John Paul Stevens:

You mean —

Raymond C. Caballero:

— you’re looking at the state statute —

John Paul Stevens:

So you concede — for the purpose of our decision you concede it’s a lawful stop, is what you’re saying?

Raymond C. Caballero:

This case here may have been a valid stop, may — you can assume that it was.

That’s correct Your Honor.

For my purposes I’m arguing —

John Paul Stevens:

And then you’d also — can assume for first a decision that every judge who has to read this statute would know what the Terry standard is and what limit the application of the statute to those cases which followed in the Terry standard.

We should assume that I suppose.

Raymond C. Caballero:

You would have to assume that but for purposes of —

John Paul Stevens:

Then it doesn’t seem very vague anymore —

Raymond C. Caballero:

For purpose —

John Paul Stevens:

For that part of the vagueness whether we didn’t really know whether they limit it to Terry stops or not.

Raymond C. Caballero:

Well, my understanding of the term vagueness Mr. Justice Stevens is a person reading the statute would be able to tell whether his conduct was criminal or not.

I thought that was a test of vagueness not whether the Court somewhere knew what Terry versus Ohio held.

But maybe I misunderstood it.

That’s what I thought vagueness meant.

Lewis F. Powell, Jr.:

May I come back to the question you’ve just been discussing?

One of the elements on this statute is that the stop must be lawful.

Now that’s what the statute says.

I realize you argued that lawful could mean a lot of things.

But it seems to me from the record that that element of the offense maybe absent in this case, the prosecuting attorney, Mr. Paton on page 15 of the appendix concedes that the stop must be lawful.

He said an officer cannot go up to anyone on the street and ask his name unless the stop is lawful.

And if you look at what the officer said back on page 28 and later at 31, I think the response to your questions at the bottom of page 28, you inquire, did you — was any action by my client that he was armed or committed a crime at that time, the answer was no.

The only thing you wanted to do was to stop him and ask him for his name.

Lewis F. Powell, Jr.:

And the answer was correct.

So doesn’t that why should the element of a lawful stop better this case altogether?

Raymond C. Caballero:

In this case, if you were to — if I were to — had said my conducts — the conduct of my client in this case was protected, it was not criminal, that would be correct Your Honor.

But if you are raising facial invalidity and vagueness, I would say no Your Honor.

Lewis F. Powell, Jr.:

Well, I understand that perhaps but why do you have to get to the constitutional issue if an element of the statutory offense is by concession absent?

Maybe I’m wrong but I —

Raymond C. Caballero:

You don’t have to get to the constitutional issue or you can simply, the court below could have entered a judgment of acquittal and I suppose this Court —

Byron R. White:

No, we have to have some constitutional basis for setting aside the state conviction.

I don’t care what kind of — I do care what the ground might be but there has to be some constitutional ground —

Raymond C. Caballero:

Well, then that’s the —

Byron R. White:

And are you suggesting that there wouldn’t — that it was without any evidence and whatsoever, is that it —

Raymond C. Caballero:

I’m not to be just–

Byron R. White:

— or to be a Fourth Amendment or what?

Raymond C. Caballero:

Your Honor, the constitutional grounds would be basically Fourteenth from the due process which would also bring in the First, Fourth and Fifth Amendments.

I’m not suggesting that you not reach the constitutional issue in this case.

I was simply —

Byron R. White:

But I’m — I take it that whatever level of suspicion there might have been in this case, in the state courts have apparently said it under the statute it’s enough and so that poses at least the constitutionality of the statute as applied.

Raymond C. Caballero:

Yes, Your Honor.

On its — as applied and also on its face.

William H. Rehnquist:

Well, on its face Mr. Caballero I know — in your index of authority, its in front of your brief, the only Texas case you cite is one saying that the Texas Court of Criminal Appeals has jurisdiction only where the fine level is over $100.00 and it very likely is not your fault that you can’t get to a higher Texas Appellate Court.

Have there — but have there been any Texas appellate decisions construing the statute?

Raymond C. Caballero:

No, Your Honor.

This question came up earlier and I can answer your question I believe in this manner.

If the statute provides a pretext for an arrest such as for example in DeFillippo, you find drugs or other violations, you never see this kind of prosecution arise.

It’s a very rare instance I don’t even know how we got this far but usually at that point prosecutors have —

Byron R. White:

There have been — Mr. Caballero, it’s because you brought it here.

Raymond C. Caballero:

Well, Your Honor I was only just defending my client.

Byron R. White:

Exactly.

Raymond C. Caballero:

The only thing I can say is that at that point, the prosecutors are simply not interested in prosecuting someone for the mere refusal to give his name.

And you don’t see this kind of prosecution.

Raymond C. Caballero:

No Texas Appellate Court to my knowledge and I’ve checked has ever considered the issue.

In Sunny Shell versus Texas that I have cited in my reply brief they didn’t cite the statute but the Texas Court of Criminal Appeals did give you its viewpoint concerning the lawfulness of stopping someone on the street and asking their name and I was —

William H. Rehnquist:

And unless you get a fine of over $100.00 you will never get a case to the Texas Court of Criminal Appeals under this case —

Raymond C. Caballero:

That’s correct Your Honor.

Warren E. Burger:

Now, somewhere in your observations you said that the police officer gave no explanation except that he wanted his name.

I — I suggest that isn’t quite accurate.

The police officer has said that at page 29, just above the middle, he referred to this being a high drug area and it is — this is certainly related to the reason he made the stop.

That’s a part of the officer’s explanation.

Raymond C. Caballero:

He gave that explanation Your Honor.

I don’t see that anyone’s Fourth Amendment rights are diminished in any respect because he happens to be walking through a so-called high drug area.

I don’t think he alludes any of your Fourth Amendment rights because he happened to be walking through such an area.

Warren E. Burger:

You’re going to a legal argument which is your privilege.

I’m simply suggesting that the officer did give a reason.

The reason was that he was being more observant in a high drug area when two people come together in an alley obviously because they might be engaged in a drug transaction.

They might not be but that’s his — there is a reason given by the officer —

Raymond C. Caballero:

That’s — that was his submission —

Warren E. Burger:

— (Voice Overlap) of frivolous or whimsical idea.

Raymond C. Caballero:

If that were the case though Your Honor, I would imagine that he wanted to stop the other party to the drug transaction and also ask him a question or two which they never did.

I guess they assumed that the drugs were flowing from my client to the other which in the case — if they really did believe that they wanted to make a drug arrest they would certainly stop both parties, if they thought my client sold then the second party would have them.

Warren E. Burger:

Is there any evidence what happened to other man?

Raymond C. Caballero:

The only thing in the record was, he was never stopped or questioned Your Honor.

Warren E. Burger:

Very well Mr. Caballero.

Raymond C. Caballero:

Thank you.

Warren E. Burger:

Mr. Hicks.

Renea Hicks:

Mr. Chief Justice and may it please the Court.

My name is Renea Hicks and I represent the State of Texas on this appeal.

The statute challenged here, Section 3802 of the Texas Penal Code and just generally it imposes a very limited duty on citizens of the State of Texas in a very narrowly circumscribed situations to a police in their investigatory functions and indirectly to either fellow citizens by helping to possibly preempt crime or help catch those who have just committed a crime.

I do not see that it is unconstitutional under any of the four grounds that were raised on this appeal.

The First Amendment issue I think clearly must be discarded as a valid grounds for invalidating the statute because to invalidate the statute because — saying that someone has a First Amendment right to silence in all situations just would lead to totally unacceptable results throughout our society, we are — much of our government functions on requirements that people respond to request from people in Securities and Exchange matters, in Food and Drug Administration matters in situations like that.

William H. Rehnquist:

But what if the State of Texas passed a statute saying that every citizen when he left home during the day had to call the local police station, tell them he was leaving and where he was going or when he’d be back and made a vio — made a pros — a violation of that command or criminal offense punishable by a fine?

Renea Hicks:

I don’t see that that would be a First Amendment problem.

It seems to me — well, it could be a First Amendment problem in the sense of impinging someone on associational rights by constantly keeping track of someone.

I don’t think this statute does anything like that.

But if anything I would think that that would be a general due process from the statute going back to the situation in DeFillippo where the Michigan Court of Appeals said making criminal, that conduct is –

William H. Rehnquist:

What is the general due process?

Renea Hicks:

Well, by that I meant the Fourteenth Amendment due process question.

This Court has held in numerous kinds of cases that the only things in the Due Process Clause are not rights incorporated from the first 10 amendments, first 8 amendments.

Warren E. Burger:

To pursue Mr. Justice Rehnquist’s hypothetical, under this kind of an ordinance the really only safe way that is — this can avoid embarrassment at least is to carry some form of identification on him at all times, isn’t that true?

Renea Hicks:

I don’t think that’s so.

Warren E. Burger:

You don’t think so?

Renea Hicks:

This statute is different than many of the other statutes that are similar to this in that there is nothing on the face of the statute that says someone has to carry identification to support what they speak to the officer.

In other words there’s no requirement of showing a validated driver’s license or a general ID card.

It just says a person must report his name and residence or address to a police officer.

And I don’t think the word report in this instance means that they have to report it by showing proof of the identification.

In other words, if someone says my name is John Smith, to an officer’s lawfully requested it, the officer has no right to say, “Well, prove that you’re John Smith”.

And he has no right to arrest the person unless he has independent ground to point that this a false identification.

Lewis F. Powell, Jr.:

Well, counsel, I take it then you’re suggesting that we should judge this case on the grounds that the validity of the statute on the grounds that the statute permits an officer to stop any person at any time regardless of the circumstances and ask his name and if the person refuses to arrest him.

Renea Hicks:

No, Your Honor.

I’m not saying that.

The statute requires that there’ll be a lawful stop.

Lewis F. Powell, Jr.:

Well, I’m —

Renea Hicks:

Yes, but they —

Lewis F. Powell, Jr.:

Well, I’m just asking though, I’ll ask you then, is it a lawful stop to just stop any person indiscriminately and ask the name?

Renea Hicks:

Well it may not be an unlawful stop but I do think that the word lawful stop in this instance has — carries with it a certain technical meaning, the Terry versus Ohio type of stop.

Potter Stewart:

But the Court in this case held that this was a lawful stop.

It had to hold so in order to convict this person.

Renea Hicks:

That was implicit in the judgment of conviction.

Yes, Your Honor.

Potter Stewart:

And therefore that’s the way we have to read the statute, isn’t it?

Renea Hicks:

I don’t believe so Your Honor.

Renea Hicks:

Under —

Potter Stewart:

But why not?

Renea Hicks:

Well, for it — there is —

Lewis F. Powell, Jr.:

I’m just trying to help you out.

Renea Hicks:

I understand that.

But I do believe that the lawful stop requires the Terry versus Ohio stop.

It may be that the Court in this situation did not read it that way but it is not in the appellate court in the State of Texas.

Potter Stewart:

It’s the highest court in which we have any construction of this Texas Statute.

Renea Hicks:

That’s correct.

Potter Stewart:

And whereas my Brother Rehnquist suggest we’re not likely to get it from any higher court.

Renea Hicks:

Well, it is possible to get it from the higher court.

Potter Stewart:

It’s possible, we haven’t yet.

Renea Hicks:

Correct.

Potter Stewart:

And this is the sole construction of the statute we have that the stop by this policeman of this petitioner was a lawful stop or else there couldn’t have been a conviction.

Renea Hicks:

I think that’s correct.

Lewis F. Powell, Jr.:

And if you assume they knew what the law was, do you — you would think it was at least a Terry stop, is that it?

Renea Hicks:

That is my argument before this Court.

It is possible that there was not — that this Court would find if they are independently reviewing the evidence that there was not a lawful Terry versus Ohio stop.

William H. Rehnquist:

What if the El Paso County Court says lawfully stopped under the statute means lawful for purposes of federal constitutional laws as well as Texas law and I conclude this was a valid Terry stop.

And this Court which is hearing the case now says, “No.

We do not think it was a voluntary stop.”

We would — we’d simply reverse on it as applied basis, wouldn’t we?

Renea Hicks:

Well, I don’t think that it’s — the issue of the lawful stop has constantly been pushed to the background by Mr. Brown or his counsel.

And it is not really before this Court whether there was a lawful stop.

I realized under Thompson versus City of Louisville, this Court has said that it can be a denial of due process if there’s no evidence to support a conviction.

Byron R. White:

Doesn’t even have nothing.

That wouldn’t be the necessary, the ground that it would just be that the evidence isn’t enough to justify a Terry stop.

Renea Hicks:

I understand —

Byron R. White:

But you don’t think — you say that issue wasn’t presented in that.

Renea Hicks:

It was not — it was covered by the fact that Mr. Brown’s attorney said that he assumed that there was a lawful, there was a reason to stop.

Byron R. White:

Well, if he assumed that — if he assumed the reason then one of the constitutionality passed on he didn’t present the lawfulness of the stop.

Renea Hicks:

That’s my argument.

John Paul Stevens:

Can I just ask you a question on that?

He did ask the question as Mr. Justice Powell pointed out.

The only thing he wanted to do was stop him and ask him his name and the officer said, “Correct”.

That’s on page 28 and he says the same thing again a couple of pages later.

I really have two problems with that.

Can you — does not the record show the absence of a lawful Terry stop and that’s the fact.

Renea Hicks:

I think that’s very possible.

I do think that there were two other facts —

John Paul Stevens:

No.

Then if that is true, if there is, as we can read the records that there isn’t any indication of violence and no motive to do anything but ask this fellow’s name when he happened to be in a drug area and he happened to be black and I don’t know which is more significant for other reason for the stop.

But do we just ignore that then or do we — and what can be done if it is not actually a violation of the statute there’s no appeal in Texas is there from this Court?

Renea Hicks:

Well, there is but there wasn’t in this case.

John Paul Stevens:

Oh, there — oh, I thought because they weren’t involved.

That there was no —

Renea Hicks:

There can be an appeal because under a class — in a class, say, misdemeanor there can be a fine over $100.00 —

John Paul Stevens:

Oh, I see, if there had been a —

Renea Hicks:

— up to $200.00.

Correct.

John Paul Stevens:

But in — but the judgment here is not reviewable by any Court.

Renea Hicks:

That’s correct.

Well, I do think that it’s very well that there may not have been a lawful stop in this case.

I — I can only go back to the position —

John Paul Stevens:

But then isn’t Mr. Brown’s counsel — don’t we then have to assume as a matter of Texas law that the Texas Court which is the final court construing this statute has held it applies more broadly than Terry does.

Renea Hicks:

Its — there are two conclusions that — two possible conclusions that could be drawn I think.

One could be that conclusion.

And I don’t think that that’s the problem.

The other one would be, I would think that the Court misunderstood or misapplied the Terry doctrine.

The Court, the trial court did not apply the Terry doctrine properly.

Renea Hicks:

That might be the proper one and I believe that that is what’s supported by the record.

The reason I say that under the Texas stat — under this statute —

Byron R. White:

Are you — are you conceding that, you say?

Renea Hicks:

I’m saying that this Court very well might find that there was not a lawful stop in the Terry versus Ohio if it was independently reviewing the evidence and if the issue was clearly presented to them.

I do think that the Texas statute requires the Terry versus Ohio stop.

Potter Stewart:

There’s no indication in this case that it does.

None, in fact all the indications are on the other way, the very fact that this person was convicted on the facts of this case.

Renea Hicks:

Well, again I think that the other — there is another conclusion that can be drawn and that is that it was misapplied, the Terry Doctrine was misapplied.

Potter Stewart:

Well, but you have no basis for submitting that this law requires at least in — a justification equivalent to the Terry against Ohio —

Renea Hicks:

I — I think —

Potter Stewart:

Isn’t it — no basis on this case for saying so?

Renea Hicks:

In this case, but in Texas statutes for instance in the Texas Code Construction Act which governs to the Texas Penal Code, there is provision in the Texas Code Construction Act which says that if terms of the statute have a technical or special meaning through some means such as a Court decision such as Terry versus Ohio — doesn’t specifically meets in Terry versus Ohio.

Then those words in a statute are to be given that construction.

Potter Stewart:

Well, Terry versus Ohio in that case the Court upheld what the police officer did.

There was no statute ordinance covering what he did.

Renea Hicks:

That’s correct.

Potter Stewart:

It didn’t say that he couldn’t have done more or less, it just simply upheld what he did.

Why — why are you suggesting that that’s a limit of what a police officer can ever do?

Renea Hicks:

I’m not saying that that’s the limit of what a police officer could ever do.

Potter Stewart:

Well, you just did.

Renea Hicks:

No.

As I — I believe I said that under this statute, the term lawful stop is limited by other statutes in Texas that construct — controlled the construction that the state court to be able to give these statute to a situation that there being a Terry versus Ohio stop.

I — since Terry —

Potter Stewart:

Well, that’s telling us that Terry against Ohio represents the limit of what a lawful stop would be, isn’t it?

Renea Hicks:

I don’t think that that’s a necessary conclusion from what I just said about this construction that would be given to the statute.

There are stops that might not have meant to a Fourth Amendment detention that would be turned lawful I suppose.

I mean, policemen constantly are patrolling their areas checking with the merchants and so on.

Warren E. Burger:

Is it your view that the Texas Courts concluded that there was a lawful stop here?

Renea Hicks:

Yes.

I think that that is implicit in the judgment of conviction.

Warren E. Burger:

Otherwise he couldn’t have convicted, could he?

Renea Hicks:

That’s correct.

Warren E. Burger:

Now, in reaching that conclusion, it’s certainly a hornbook that the whole record is viewed by that judge, necessarily by us but by that — the judge reaching that conclusion.

Part of that record is that this somewhat inarticulate policeman and brand new policemen as well said that part of his motivation — implied the part of his motivation was that it was in a high drug area.

Is it reasonable to conclude, do you think we could conclude that the judge made the decision that the lawfulness was demonstrated in relation to the high drug area that the policeman said was part of his reason?

Renea Hicks:

I believe that that is one of the factors on which the judge based his conclusion implicit in the judgment of conviction —

Warren E. Burger:

Is that — then is that decision reviewable here?

Renea Hicks:

I don’t believe it is Your Honor.

That is my point that there — there are — there is some evidence on the point of whether there is a lawful stop.

As I say, this court reviewing the record are in — as an initial trial court might decide that there was not proof beyond a reasonable doubt that there was a lawful stop.

But there were two factors I think.

One was that it was a high drug area.

The other factor — there were three factors.

The other factor was that these people were in an unpaved alley and the other factor was that there were two people in this unpaved valley in a high drug problem area near one another.

Now in the — those three factors in isolation very well that probably are not a lawful stop in the Terry versus Ohio but there are some evidence on that point.

And that is the reason I suggest that under Thompson versus Louisville the conviction could not be reversed because there is no evidence on the point.

And I do not believe that because a judge in Texas may have applied Terry versus Ohio in a way differently than this Court might have that that means that that court were saying that lawful stop means something different in Texas than it means under the Fourth Amendment litigation after Terry versus Ohio.

Byron R. White:

But you are not contending here then that they — that you can make a crime up to — as to that a state could make it a crime to refuse to give your name whenever you’re stopped for whatever reason or no reason.

Renea Hicks:

I’m not contending that it can make it a crime.

That is correct.

I’m not contending that Texas has done that.

I think it may be possible —

Byron R. White:

Oh, I know.

Yes, I understand.

Renea Hicks:

— to do that.

Warren E. Burger:

Suppose there were no reference by the policeman in this record to the fact that he was observing two men in an alley, in a high drug area and that there was nothing in the record except that he just wanted to find out the man’s name.

Would you think that would be a lawful stop or a permissible stop under this statute, permissible First —

Renea Hicks:

No.

I would not say that that would have been a lawful stop under this statute then I would say that there could have been no evidence to support a conviction in that situation.

Byron R. White:

Well, there would’ve been plenty of evidence to support a conviction refusing to give your name if he refused to give his name.

Renea Hicks:

But the — one of — that is only one of several elements in the statute.

Again, I go back to arguing that.

It’s a Terry versus Ohio stop that is suggested.

Byron R. White:

There wouldn’t be any evidence of a lawful stop.

Renea Hicks:

That is correct.

There would’ve been no evidence on that point.

Warren E. Burger:

But the — did say —

William H. Rehnquist:

But the difficulty with your case is that we don’t have an opinion from the Texas Court and so we don’t know whether it’s a question of interpretation of the state statute that maybe troublesome constitutionally or whether it’s an evaluation of the evidence under a perfectly permissible interpretation of the state statute.

Renea Hicks:

I — I think that that is one of the main problems in this case.

There — I do think that there is support in Texas law, statutory law for the argument that this is a Terry versus Ohio stop and again I cite the Texas Code Construction at which governs the Texas Penal Code in which says the technical terms or terms that have acquired a special meaning retain that special meaning in the Codes of Texas.

And there’s also a provision that Texas Courts are to construe statutes so as to avoid findings unconstitutionality, kind of black literal problem.

I did want to address the following Norwell versus Connecticut which Mr. Caballero cited as supporting his First Amendment argument and I do believe the reading of that case will reflect that the gentleman that was convicted of disorderly conduct in that case had his conviction reversed by this Court because of something he had said.

It was his — his convictions was not —

Potter Stewart:

Norwell against Cincinnati?

Renea Hicks:

— because of something that he had said.

Potter Stewart:

Cincinnati, not —

Renea Hicks:

Cincinnati, I’m sorry.

Potter Stewart:

Yes.

Renea Hicks:

It was because — it was a First Amendment question because it — the record reflected in that case that he was convicted for what he had said not for violation of the statute.

He had non-provocatively responded to the officers accosting him.

In this situ — in this case the record reflects that he was arrested simply for refusing to give his name after a lawful stop by the police officer.

I did want to also distinguish this case from cases such as (Inaudible) and the other cases that have held vagrancy statutes unconstitutional because this statute punishes conduct not status.

I think there’s an important difference in (Inaudible), that the statute was held unconstitutionally vague because underlying that decision I think was the feeling that people were convicted for what they were not for what they had done.

I don’t believe that is the situation in this case.

I also wanted to point out that there is a mens rea requirement in the statute that requires an intentional refusal.

I think this is the same which is this somewhat from the DeFillippo case which not — did not clearly contained a mens rea requirement.

And I think the intentional element the mens rea requirement does under various decision of this Court say the statute from any vagueness that this Court not find otherwise.

Warren E. Burger:

But that presuppposes — that presupposes that there is a valid obligation to answer the question, “What is your name and identify yourself?”

Renea Hicks:

Well, I do believe that is a valid obligation and I don’t —

Potter Stewart:

Well, is this statute makes it an obligation?

Renea Hicks:

Yes, and I’d — as I say I believe it is a valid statute and the obligation is fair.

It’s not asking — I don’t believe too much to ask citizens in these narrowly circumscribed situations to aid the law enforcement community in investigating possible crimes.

Byron R. White:

If there’s a reasonable suspiciousness doctrine.

Renea Hicks:

That’s correct.

Byron R. White:

But if there is not?

Renea Hicks:

If there is not reasonable suspicion I believe that is a different a case than this one.

And I believe as the discussion in DeFillip — in the DeFillippo argument proceeding this one indicating that it’s quite possible for a state to enact the statute, making it a crime whether there is a lawful stop or not to refuse to give your name.

Potter Stewart:

Well, that’s —

Renea Hicks:

Again, I don’t believe that that’s the issue before this Court.

Potter Stewart:

On the contrary I think — what I understood you to answer a few minutes ago that you didn’t think a state could validly do that?

Renea Hicks:

I don’t believe I said that.

I may have it —

Potter Stewart:

Well, I misunderstood you then.

Renea Hicks:

I believe it may be possible.

Again, I’m not argue — I’m not trying to argue the statute —

Potter Stewart:

But you’re telling us that this statute doesn’t go that far.

Renea Hicks:

Alright, that’s correct.

Byron R. White:

Well, if we happen to think the issue of the lawfulness of the stop was properly here in the sense was there a Terry grounds for stopping?

If that issue is here and we decided there were not sufficient grounds to make a Terry stop then before we could reverse we would have to say that the state may not make a person identify himself unless on Terry grounds.

Potter Stewart:

That’s right.

Renea Hicks:

That’s correct.

Warren E. Burger:

In Byers against California of course did require a man to identify himself but that was in relation to the driving of an automobile, wasn’t it?

Renea Hicks:

That’s correct, and it involved the Penal Statute but it did involve a situation where there had been an accident of some sort.

And I believe in under — although the issue wasn’t presented in Byers, there could have been grounds for a probable stopping situation.

Byron R. White:

I take it there’s a — it’s probably unlawful in Texas for an eyewitness to a murder to refuse to identify himself, I suppose.

Renea Hicks:

That’s correct.

I believe that’s so.

If at the scene or within the general surroundings of the murder several months later it may be different.

Warren E. Burger:

We’ll resume at 1 o’clock.

Renea Hicks:

Thank you.

Warren E. Burger:

Have you completed your argument?

Renea Hicks:

Your Honor, I wish to have one more minute.

Warren E. Burger:

Alright, very well, you may resume then.

Renea Hicks:

Mr. Chief Justice and may it please the Court.

The last argument that I would like to address or the last issue that I would like to address is just briefly is the Fifth Amendment issue that was raised in the brief on appeal by Mr. Brown’s attorney.

I just wanted to point out that this is an attack on the statute on its face and all the issues that are not in particular at this point on the Fifth Amendment question.

And the Fifth Amendment self-privilege against self-incrimination is not a right that can be asserted vicariously on behalf of large groups of people.

This Court has many times held that is a personal privilege that must be asserted which brings me to my second point on this and that is that Mr. Brown nowhere in the proceedings until the motion to dis — set aside the information was filed invoked the Fifth Amendment.

In fact, on the way down to the booking station he told them his name.

Another point I would like to make use under California versus Byers at least in a plurality opinion, this Court has written that a person’s name and his address is just a neutral adamant information which is not incriminating in anyway and it can be analogized to the taking of blood samples, the exhibition of the person at a lineup in such situations.

One question that has not come up here so far and was brought up in the DeFillippo case, I think Mr. Justice White asked it, was — what about the Miranda situation?

But, is it required that Miranda warnings be given?

I didn’t want to point out that Miranda spoke briefly to this issue when it said that it did not apply to general on the scene question in circumstances where a crime might have been committed or something like that.

Potter Stewart:

Of course the crime wasn’t committed until after the question was asked?

Renea Hicks:

Well, that’s true, this particular crime was not.

And what I was saying is as going back to my argument that a lawful stop, in the Terry versus Ohio stop, Miranda seem to side that in a situation like that you don’t need to give Miranda warnings because general on the scene question is not covered.

I think Oregon versus Methieson kind of expanded this idea.

John Paul Stevens:

But Mr. Hicks, wasn’t that because the person just generally on the scene wasn’t necessarily in custody and Miranda starts when the person being questioned —

Renea Hicks:

Well, that’s true.

But what I’m saying is a person that’s reasonably stopped —

John Paul Stevens:

That’s what I was actually going to ask you.

When — if you do stop a person and get him down is he in custody for purposes of Miranda case?

Renea Hicks:

I do not think so.

John Paul Stevens:

But he is —

Renea Hicks:

He has been detained in the Fourth Amendment I agree.

And —

John Paul Stevens:

If you arrest him, you say I place you under arrest, it would be —

Renea Hicks:

He is in custody when he’s placed under arrest.

There’s no doubt about that.

John Paul Stevens:

But you say there’s a distinction between a stop on reasonable suspicion for necessity warning and an informal arrest?

Renea Hicks:

Yes, correct.

I just — it seems to me that it would not even be workable in such a situation.

John Paul Stevens:

When a man was stopped, is he free to move about at will when he’s been stopped?

Renea Hicks:

I’m sorry I didn’t hear the first part of the question.

John Paul Stevens:

Is he free to move about when he’s been stopped by the police?

Renea Hicks:

No, he is not.

He — he has been detained but whether that is —

John Paul Stevens:

What’s —

Renea Hicks:

The person is in —

John Paul Stevens:

What’s the reason for a distinction in terms of Miranda, the reasons behind the Miranda rule, why would you draw that line, I wonder.

Renea Hicks:

Well, again I’m relying on cases like the Rosco and Miranda and the situation in Oregon versus Mathieson where the Court — Oregon versus Mathieson law situation where a person was under suspicion and had been asked to voluntarily come down to the police station.

He was —

John Paul Stevens:

He voluntarily came but you don’t voluntarily agree to be stopped, that it’s a —

Renea Hicks:

Correct, but he was in a policeman’s office for two hours or so locked up in there.

John Paul Stevens:

Voluntarily.

Renea Hicks:

And this Court held that that no Miranda warnings were required.

John Paul Stevens:

But isn’t it —

Renea Hicks:

In that —

John Paul Stevens:

— my hypothesis isn’t there — isn’t a Terry stop involuntary?

There’s not — isn’t that sort of a —

Renea Hicks:

I — I think there’s no doubt that there’s some element of involuntariness in it that the person is detained.

And that the whole thrust of Terry was that the Fourth Amendment is involved in those situations.

Warren E. Burger:

When you’re certainly restrained if someone is searching you for weapons.

Renea Hicks:

That’s true.

Warren E. Burger:

But isn’t the genesis of the voluntary concept that it’s part of an investigation for a possible criminal activity?

Renea Hicks:

Well, that — that’s the point I was making that the person — the —

Warren E. Burger:

It isn’t just to see whether the man has got a gun.

The primary trust is to investigate possible criminal activity but in that process this Court has said, they may search the person to see whether he has got a gun and that’s a prophylactic thing so that the officer doesn’t —

Renea Hicks:

That’s correct.

They can pat him down or frisk him to see if he has a gun if circumstances are present which indicate that they may need to protect themselves.

Warren E. Burger:

So that there is a — there is an element of detention very clearly.

Renea Hicks:

Oh, I’m not arguing that there isn’t under Terry in situation like this but it is not —

Warren E. Burger:

But it has never been thought in the — it has never been suggested in any opinion that that detention or custody whatever it may be figures the Miranda warning.

Renea Hicks:

I’ve — I’m not familiar with any suggestion that it would be applicable.

I just don’t see how it would be.

And that’s all.

That’s all I have.

Thank you.

Warren E. Burger:

Very well.

Mr. Caballero you have a few minutes left.

Raymond C. Caballero:

Yes, sir.

Reading Terry into the words lawfully stopped looking through the record there I don’t know that the court below ever considered Terry.

And I can’t see simply by saying a state legislature putting in the words lawful or unlawful reads in or reads out Supreme Court decisions.

And under the decision in this Court, Connally versus General Construction Company, the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it.

That’s the test of vagueness not that some court some place may be able to read in Terry or read it out in a particular situation.

Otherwise, all you have to do to make a statute pass the vagueness test here would be just to put in the words lawfully stopped or unlawful detention or whatever you may want to read into the statute by those words.

William H. Rehnquist:

But don’t many statutes in fact do that, for instance, criminal test which statutes doesn’t — oh, unlawfully on the premises and — it may be a question of considerable doubt in that particular case whether a person is or is not lawfully on the premises.

Raymond C. Caballero:

I agree with you sir.

In the situation where you read in the words lawful there are other standards for example unlawfully on the premises normally takes to me you’re on the premises and you don’t have permission to be there.

But the words lawfully stopped are so vague it’s a question of degree I agree with you.

That they are so vague lawfully stopped that in this case for example this Court under facts that I would consider that it was not a lawful stop simply stopping the person in an alley who had not been doing anything wrong, no suspicion or report that he had been doing anything wrong.

Court held below that it was a lawful stop.

Now what the court did below, the Court had serious reservations about the constitutionality of the statute but simply presumed that the statute was valid and read in to the statute apparently that this was also a valid stop as applied in this particular case.

Now if the stop had been unlawful, necessarily my client would’ve been acquitted and you would not be reviewing the statute.

If the stop is lawful, excuse me, if the stop was unlawful under the facts of the case then it would be like Norwell where you simply apply in the — there was protected activity, it never reached the constitutional issue by that means.

And incidentally in Norwell versus Cincinnati, I went back and looked at it, you — this Court did say we are persuaded at the ordinance as applied to this petitioner on the facts of this case operated to punish his constitutionally protected speech.

So that was decided on First Amendment grounds.

The Fifth Amendment question in this case, it’s very difficult sometimes to see how the invocation of that right to — under the Fifth Amendment can be valid or it applies to a name only.

However, in the situation where for example I saw a case out of Texas, the Miller case cited on the brief where a person had made a false claim for insurance.

He claimed that he was dead, the claim was made through his wife.

Raymond C. Caballero:

Later on he was arrested.

Had he given his name Joe Dolks or anything else, that person had never would’ve put the crime —

Warren E. Burger:

Well, aren’t you confusing probable cause with incriminating?

The disclosure of the name may lead to the arrest but the disclosure of the name per se doesn’t incriminate him?

It merely sets in motion the chain of events that will bring him on to Court.

Raymond C. Caballero:

Isn’t that also incrimination?

Incrimination goes beyond mere evidence presented in Court.

Incrimination means something that they may subject me to prosecution.

And I can’t see how you can totally separate the concepts of evidence in Court and probable cause also evidence to give someone a reasonable cause to arrest him — a person.

I — separating the two, I have a difficult time with that.

To me they’re both incrimination.

One allows evidence to be presented in Court.

The other one allows my arrest.

In either case it’s incrimination.

But reaching the cons — how would you ever — under the facts of this case, how would you ever test the constitutionality of the statute if you didn’t get beyond the facts of this particular case and find out whether there was constitutionally protected conduct which was being punished by the statute here which is exactly what appellant is trying to do.

And is there constitutionally protected conduct which this — the statute in this case makes criminal.

The fact is you do have a right to walk down the street and stand mute.

Under the case Norwell versus Cincinnati, you do have the right to walk down the street and tell the policeman I don’t want to tell you anything.

Lewis F. Powell, Jr.:

Well he did more than that. He verbally and negatively protested.

Now in your case, you don’t have anything said at all.

Raymond C. Caballero:

Yes, we do Your Honor.

My client said he protested the reason and the right of the officers to stop him.

Lewis F. Powell, Jr.:

Yes, but he’s being arrested for not speaking to with — identifying himself.

I think it’s a very different case from Norwell.

I think your First Amendment argument is frivolous.

Raymond C. Caballero:

Alright.

Yeah, under Norwell, whether Norwell was being prosecuted for saying something or not doing something, the point is that in that case this Court held that it was constitutionally protected speech.

In other words, telling the police officer I don’t want to tell you anything, this Court held was constitutionally protected speech.

If someone is asking my name and I tell them, “I don’t want to tell you anything” —

Lewis F. Powell, Jr.:

Well, of course it protects speech, that’s the First Amendment.

Lewis F. Powell, Jr.:

The question here is there is a lack of speech.

Raymond C. Caballero:

Alright, then you get closer to the —

Lewis F. Powell, Jr.:

What I’m saying is I think you have much stronger arguments on other amendments than you do on the First Amendment and I think you’re spinning your wheels here.

Raymond C. Caballero:

Well, the First Amendment claim I see is a very real problem not so — aside from the Norwell case, the case of a person who wishes anonymously to protest goes to a meeting but doesn’t want anyone to know that he is there.

I think it is a very real problem under the First —

Lewis F. Powell, Jr.:

Do you want to pin your case in the First Amendment?

Raymond C. Caballero:

I think it ought to be pinned on the First, Fourth, and Fifth.

Your Honor, they all are bundled so close together that I don’t think any one amendment ought to decide this case.

I think this is a group of rights that are so close in this case —

Lewis F. Powell, Jr.:

But maybe one of the troubles of the case you have a shotgun approach you, then everything possible.

Raymond C. Caballero:

Well, it may be a shotgun approach but I legitimately believe that the First, Fourth and Fifth Amendments all protect the conduct in this case.

Thank you Your Honor.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.