The recent Supreme Court verdict in Hiibel [3] regarding Terry stops raises some interesting questions that not only need to be asked, they need to be seriously considered and then answered on an individual basis in order to be fully prepared when the unexpected occurs. Sometime, somewhere a police officer may approach you, detain you, and ask you to identify yourself. What will you do? What will you say?
Note that the court did not say that the police have the right to request that you provide a photo ID in a Terry stop, just that you are required to identify yourself. This is where it gets interesting. Be creative, think outside the box.
How many policemen know sign language? How many people know how to grunt? How many people can pretend to sign? How hard can it be? Get the picture?
How many virtual identities do you have online? How easy is it to add a new one? Who's to say that you are not who you say you are? How can a stranger prove otherwise, especially when the police are not allowed to ask for a photo ID in a Terry stop? If a virtual identity is more than sufficient online, why will it not also suffice offline? Who is going to care, especially if you smile and otherwise cooperate with the police?
Identities are labels, but there is no limit on how many you may have. In most states, there are two ways to change your name. One is to go to court to petition for a change. The other is to just start using a new name. Both methods are totally legal. Who's to say that you didn't decide to change your name five minutes before the police detained you and then changed your mind again after they left? It would be legal to do so.
What's to stop you from doing this every day for the rest of your life? No written records are required, so there is no audit trail. No database includes your new name, unless and until the police put it there after you give it to them. Wouldn't it also seem prudent to decide shortly thereafter that you don't like that name anymore, immediately change it, and decide to never use it again? Seems like a no-brainer to me.
State agents don't just want your name, they also want your date of birth and Social Security number. Why? Names are plentiful, easily changed, and very often duplicated; not so with your DOB and SSN. They are linked to you for life, making you uniquely you, which is what the police are really after. They want to know which of the many Tom Joneses you are. Are you the escaped ax murderer or the one who never received a parking ticket? If you decide to change your name and then provide it to the police in a Terry stop, you run the risk of unwittingly having picked the name of the escaped ax murderer. Do your homework and choose wisely.
Note that the court did not specify which identity you must provide to the police when asked. The court's unstated assumption is that you have only one identity. Who in their right mind would maintain only one identity now that the national privacy rules have been totally changed by judicial legislation in Hiibel?
As long as you provide one of your identities to the police, you have met the letter of the law. You have not lied and you have cooperated with the police. If you are innocent, you also have committed no crime. You merely took a prudent measure to protect your privacy.
Protecting your privacy in a Terry stop does not constitute fraud. Believe it or not, fraud is a tough charge to prove in a court of law. One must prove intent to defraud to convict. Taking prudent measures to protect one's privacy can in no way be interpreted as intent to defraud anyone because there is no victim, hence no crime of fraud.
Some might say that by providing another identity or alias to the police, you are opening yourself to a charge of impeding a police investigation or interfering with police business. I would say that is a stretch at best. If you are innocent, you have nothing to fear and no reason to be concerned if you provide an alias in a Terry stop. If you give the police an alias they will more than likely allow you to leave once they know that you are not who they are looking for. You can easily solve their problem for them by providing an alias.
Some might say that by providing an alias to the police, you are opening yourself to a charge of lying to the police. I would say that no one could prove it since any name you select is totally legal and you can do so at any time, for any reason, or none at all. You have the legal right to change your name whenever you so desire. Which of the two methods you decide to use is totally up to you.
Refusing to identify yourself or being uncooperative in a Terry stop will now result in your arrest on a misdemeanor charge. You will pay a fine and walk. Freedom isn't free. This is the newest cost incurred when choosing to protect your privacy in a Terry stop. My guess is that many citizens will live for decades without ever being subjected to a Terry stop, but that doesn't mean that it can't happen to you tomorrow. Plan ahead.
While the law now requires you to identify yourself in a Terry stop, no one can force you to do so, not even the police. Legally, all they can do is arrest you for refusing to do so. Don't forget that in 30 states, this is all brand new since none of them had a similar law on the books before this decision. Plan accordingly based on your location.
Once you are arrested, your Miranda rights apply, even if they are not read to you. Saying nothing at all is almost always your best course of action from that point forward. You will be booked on a misdemeanor charge, given a court date to appear before a judge to plead your case, and released. While you are required to appear in court, you are under no obligation to speak once you get there.
You will be found guilty and fined. If the judge is feeling poorly that day, do not be surprised if you find yourself in jail for contempt of court if you refuse to speak. Judges enjoy unlimited power and wide discretion when it comes to contempt charges. I recommend not taking this route because the court can keep you in jail until you decide to speak, which could be weeks or months. Also, in some jurisdictions you will be charged a daily rate for the duration of your incarceration.
If federal agents detain you in a Terry stop, all bets are off. Based on the provisions of the PATRIOT Act, they can basically do whatever they want simply by uttering the magic words national security. Instead of facing a misdemeanor charge at the local courthouse, you could potentially be facing much worse, including various felony charges associated with terrorism, national security, or suspicion of being an enemy combatant. None of these charges need to be true, but any of them will be more than sufficient to keep you in a federal prison for weeks or months. I recommend that you request to see their photo IDs before you say anything to anybody. You need to know who has detained you before you decide how you will respond, if at all. Pray that you never find yourself in this situation.
Aliases are not illegal, and State agencies plan accordingly. When you apply for benefits at the Social Security Administration, one of the things that they ask for is a list of all of the aliases that you have used in your life in order to capture all of your work history.
Using an alias is not a big deal and it is not illegal. Aliases are normal, everyday conveniences for many citizens. The system anticipates them, allows them, and makes provisions for them. To suggest that aliases are now somehow illegal ignores the facts of life, especially since Hiibel.
Disclaimer: I am not an attorney and this is not legal advice. If you have specific questions, I recommend that you consult a competent attorney, if you can find one.
