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Analysis: ID law interpretation difficult

link Photo illustration: Kevin Wilson

A vague definition of the petty misdemeanor charge of concealing identity creates difficulties for law enforcement and citizens alike.

Staff writer[email protected]

The Fourth Amendment protects us from unreasonable searches and seizures. No one can lawfully search your house or demand you even identify yourself if you’re minding your own business.

But if an officer of the law has reason to suspect you’ve committed a crime? Then be prepared to give up that Fourth Amendment right and even reveal your identity — or get ready for a tour of a squad car and a cell at the detention center.

Concealing identity from a law enforcement officer is a petty misdemeanor in New Mexico with punishments capped at six months in jail and $500 in fines.

The charge has received local attention in the investigation of actions taken by Clovis Police Officer Brent Aguilar.

In a pair of videos — one a traffic stop, the other a response to an alleged domestic dispute — Aguilar is accused of using excessive force. In each case, he made arrests for concealing identity.

Aguilar is on paid administrative leave while Clovis police investigate the allegations. Chief Steve Sanders would not disclose when the leave began or what stage the investigation has reached, but said this is the first time he remembers concealing identification being a specific concern from the public.

He noted the issue of concealing identification is being considered in a wholesale review of Aguilar’s conduct.

“That’s part of the investigation,” Sanders said, “to decide whether there needs to be a change in policy, whether there’s a policy failure.”

To be fair to the police, and those arrested for the charge, concealing identity carries a vague definition.

According to state statute 30-22-3, it “consists of concealing one’s true name or identity, or disguising oneself with intent to obstruct the due execution of the law or with intent to intimidate, hinder or interrupt any public officer or any other person in a legal performance of his duty or the exercise of his rights under the laws of the United States or of this state.”

But when’s a citizen hindering an officer from conducting police business? And in turn, when’s an officer hindering a citizen from minding his own business?

A blurry line has made the petty misdemeanor charge a frequent visitor to the New Mexico Supreme Court. The ones in robes then decide if the incident was proper performance of an officer’s duty, or somebody abusing their badge with a fishing expedition for charges.

Former District Attorney Randall Harris, now a criminal defense attorney, has been on both sides of the discussion.

As a prosecutor, he said he sometimes declined to prosecute cases built on a concealing charge. As a defense attorney he’s got the concealing identification charge thrown out, along with all of the evidence discovered after that arrest was made.

“The last thing I would do is bash law enforcement, but it can be a gateway (charge),” Harris said. “That allows them to go forward for other things. I think concealing ID is one of those dangerous offenses that can lead to people being charged with crimes, right or wrong.”

That’s when it goes to Santa Fe. In cases that were upheld by the court, identification was requested after suspicion of a crime was established. In cases that have been thrown out, identity was central to the discovery of evidence.

While it may not feel the same as a squad car or a jail cell, case law clearly states that you’re being detained when an officer has your identification. And there must be a reason to detain somebody.

For example, a Lovington police officer was waiting for a man with outstanding felony warrants to return home. The officer found another man parked in front of the house, and asked to see his identification. A check of the license produced outstanding warrants, and that led to a successful search for drugs.

The state lost in the high court because while the guy arguably should have been detained, he couldn’t be detained for parking on a public street.

Harris said the requirements do make it difficult for an officer, because they require an officer to view a matter not as an officer, but pretty much as a citizen or a juror. It requires an Etch-a-Sketch approach: The phone call from a concerned citizen might bring you to a potential crime scene, but you arrive with a clean slate. You and your fellow officers may have been called out to this place Monday and Tuesday, but that doesn’t make anyone guilty on a Thursday.

“Officers now have to objectively articulate, ‘Here’s my reasonable suspicion to ask a person’s identification,’” Harris said. “If you don’t have it from the objective person’s standpoint, you don’t have the right to ask for ID.

“You can’t rely upon the calls that someone is waving a gun around. You get there, and you don’t see a gun, I think you’re in a different position than before.”

In general, that innocence applies to a passenger of a car during a traffic stop, because the driver is the only person police have a reason to suspect.

In one of the videos Clovis police are evaluating, Aguilar arrests the passenger of a vehicle who asks why the driver was pulled over. Sanders avoided specific comment on that incident, but echoed the philosophy that passengers aren’t to be involved unless they involve themselves.

“Their original contact is for the person that’s driving the automobile,” Sanders said. “But let’s talk about the humanistic side of that. People interject with these folks all the time. When they interject, I would hope the officer will treat them with respect and courtesy. If the interjection causes interference with the reason (the officer is there), the officer should let him know that. Every situation is fluid and different.”

Harris agreed that all situations are different, but he is unwavering in his advice to clients: Just show the identification. You may be right, he said, but it seems foolish to spend a night in jail making that point.

Be it a misdemeanor, field sobriety test or accusation in a capital offense, failure to cooperate will be held against you.

“Juries don’t like refusals, no matter what,” Harris said. “There’s no percentage in not giving the police your ID.”

Fast facts

In a training document posted online from the New Mexico Law Enforcement Academy, seven examples are given on cases of concealing identity that reached the state supreme court:

• New Mexico vs. Andrews (1997): A man who was pulled over for speeding gave his full name, but declined to provide a license or other information. The driver appealed the concealing identification charge because he gave his full name to officers.

The court sided with the state, noting identity isn’t limited to a name alone and that drivers must carry a license while operating a vehicle.

• New Mexico vs. Dawson (1999): A University of New Mexico officer saw a camper parked on university property without a parking sticker. The officer asked a person sitting in the vehicle for identification and he refused. The man eventually gave his full name after a third officer arrived. He was charged with concealing identity and criminal trespass.

The ruling was affirmed because even though the suspect eventually produced identification, his delay in doing so hindered the police investigation.

• New Mexico vs. Affsprung (2004): An officer in Chaves County stopped a vehicle for a faulty license plate light. The officer asked for and received the passenger’s identification. The officer discovered an outstanding warrant on the passenger and found drugs and paraphernalia upon a subsequent pat down.

The court ruled against the state because even though the passenger willingly provided identification, there was no reasonable suspicion of criminal activity.

• New Mexico vs. Patterson (2006): A Ruidoso police officer saw a car enter a parking lot of a closed business in a neighborhood marked by recent burglaries. The officer asked all four occupants of the car for identification to see who he was dealing with. The passenger in the front seat was observed hiding drugs when he exited the vehicle.

The court ruled against the state because the drugs were discovered during an improper detainment.

• New Mexico vs. Swanson (2006): A car pulled into a parking lot about 150 yards before a DWI checkpoint in San Juan County. All three occupants were asked for identification and patted down, and a front-seat passenger had drugs and paraphernalia.

The court ruled against the state because there was no reason to detain the car’s occupants.

• New Mexico vs. Williams (2006): A Lovington police officer was looking for a man with outstanding felony warrants. He spotted a man parked in front of the house, and determined it was a different person. The officer requested identification and discovered an outstanding warrant, and drugs were found during a vehicle search.

The court ruled the evidence inadmissible because there was no reasonable suspicion of criminal activity.

• New Mexico vs. Rubio (2006): A routine traffic stop included a driver who could not locate registration or insurance. A front-seat passenger said the car belonged to him. A check of the passenger’s ID returned a warrant, and cocaine was discovered in a subsequent search.

The court ruled in favor of the state, because it was reasonable to seek documentation from the person legally responsible for the vehicle.