brief for appellant — Brown v. Texas

IN THE

Supreme Court of the Botted States

October Term, 1978

No. 77-6673

ZACKARY C. BROWN,

Appellant

THE STATE OF TEXAS.

Appeal from the County Court at Law

Number Two

El Paso County, Texas

BRIEF OF APPELLANT

RAYMOND C. CABALLERO

Pearson & Caballero

1610 State National Plaza

El Paso, Texas 79901

Phone: (915) 544-2114

Attorney for Appellant

Press or Byron S. Apams. INC. WASHINGTON. D.C

TABLE OF CONTENTS

Page

re eae. Ge iti

Fes Ne ee Wea 06 bd bb hws ce bkwkk edwe 2

2

C. CONSTITUTIONAL PROVISIONS

AND STATUTES 6. a 4

D QUESTIONS PREGENTED 2... ccccccccccee 6

E. STATEMENT OF _ 7

F. SUMMARY OF PRM «s ccccccccccecae 8

A GEE 65s ob oe bin co oe bv cenccl )

QUESTION I: Section 38.02(a) of the

Texas Penal Code violates the Due Pro-

cess Clause of the Fourteenth Amend-

ment to the United States Constitution

because it is vague and overbroad on its

es ia at eee ane pel g

QUESTION II: Section 38.02(a) of the

Texas Penal Code is unconstitutional

because it punishes conduct protected by

the First Amendment to the United

States Constitution..................... 15

QUESTION III: Section 38.02(a) of the

Texas Penal Code is unconstitutional

because it violates the Fourth Amend-

ment to the United States Constitution

as making lawful unwarranted invasions

to one’s right of privacy.................. 20

(ti)

Page

QUESTION IV: Section 38.02(a) of the

Texas Penal Code is unconstitutional

and in violation of the Fifth Amendment

to the United States Constitution

because it compels speech under pain of

arrest when the Constitution protects

I i a ea

COMCLGEGD...«. cictawet ee cae itera ok eke

30

35

LIST OF AUTHORITIES

Page

CASES:

Aguilar v. Texas, 378 U.S. 108 (1964) .......... 23

Albertson v. SACB, 382 U.S. 70(1965)......... 31

Almeida-Sanchez v. United States, 413 |

Wee MOO UAOT OP cn cvcceneccccccecvccsees 30

Ashton v. Kentucky, 384 U.S. 195 (1966) ....... 13

Beauharnais v. Illinois, 343 U.S. 250

co ea 16

Beck v. Ohio, 379 U.S. 89 (1964)............... 23

Boyd v. United States, 116 U.S. 616

A RUM es Ware ad 4k oe 6 6-¥.0 ca ec 30

Brinegar v. United States, 338 U.S. 160

SRO Bg ao ane aaa de 23

Broadrick vy. Oklahoma, 413 U.S. 601

RCA eeepc e ee er Oe 13

California v. Byers, 402 U.S. 424(1971)...... 31, 33

Camara v. Municipal Court, 387 U.S. 523

Ee ee USs ced clue eyo 31

Cantwell v. Connecticut, 310 U.S. 296

ESS ee ne 13, 15, 16

Chaplinsky v. New Hampshire, 315 U.S.

Cg SE ae een 15, 16

Coates v. Texas, 308 S.W.2d 869 (Tex.

ee) 4

Connally v. General Const. Co., 269 U.S.

are De ee 10, 11

Cooper v. California, 386 U.S. 58(1967)......... 23

Cupp v. Murphy, 412 U.S. 291 (1973) .......... 32

(iv)

De Jonge v. Oregon, 299 U.S. 353 (1937).

Dennis v. United States, 341 U.S. 494

SNRs eats wes kas oe we ere tac

SRD ar ec eas oe eae re a ele aie

Eaton v. Tulsa, 415 U.S. 697 (1974).....

Gilbert v. California, 388 U.S. 263 (1967)

Gissendanner v. Wainwright, 482 F.2d

Se WOU Gl: COTO 6 ks tec bcbe'e'es

Gitlow v. New York, 268 U.S. 652 (1925).

Gooding v. Wilson, 405 U.S. 518 (1972). .

Griswold v. Connecticut, 381 U.S. 479

SE igh es ea re er et EN

Grosso v. United States, 390 U.S. 62

SY 664 SW ee oe,

Gutknecht v. United States, 396 U.S. 295

Nas Wi oo 4 cate ae es Eee

Harris v. United States, 231 U.S. 145

SEE Soe eS oso ot oe oe ko alle ted

Haynes v. United States, 390 U.S. 85

oo ee rarer a Crane Parr ry ane

Heath, et al. v. Brown, et al. No.

CA—4-77-204 (N.D. Tex.) .........

Hess v. Indiana, 414 U.S. 105 (1973)....

Hess v. Pawloski, 274 U.S. 352 (1927)...

Katz v. United States, 389 U.S. 347

te oh a cewaes cUba eos ce ek aee ns

Kesler v. Dept. of Public Safety, 369 U.S.

SEES Cb ON cob exe ees cd ed eut

Fees es 23

cere 13,17

(v)

Page

Keyishian v. Bd. of Regents of U. of St.

of N.Y., 385 U.S. 589 (1967)................ 13

Lanzetta v. New Jersey, 306 U.S. 451

aces dt TT TP em A ea 10

Leary v. United States, 395 U.S.6(1969) ....... 31

Malloy v. Hogan, 378 U.S.1(1964)........... 9, 30

Mapp v. Ohio, 367 U.S. 643(1961)............. 9

Marchetti v. United States, 390 U.S. 39

NO: VIET eeu nu seb UWE Sb Wl eo e'ee ok 31

Miranda v. Arizona, 384 U.S. 436 (1966)... . 9,10, 34

Near v. Minnesota, 283 U.S. 697(1931)......... 15

Norwell v. Cincinnati, 414 U.S. 14

J ere ees 11, 12, 18, 19, 24, 27, 28, 32, 33

Oestereich v. Selective Service System

Local Board No. 11, 393 U.S. 233 (1968)..... 18

Olmstead v. United States, 277 U.S. 438

PET ECU rT Pree 21, 22, 26, 30

Palmer v. Euclid, 402 U.S. 544 (1971)... 12,24, 26, 27

Papachristou v. Jacksonville, 405 U.S.

ie tes cpa EEE LEO TET eee 10, 24

Plummer v. Columbus, 414 U.S. 2 (1973) 12,13,17,18

Roth v. United States, 354 US. 476

NED A ae et ee 16

Schneck v. United States, 249 U.S. 47

oe LTTE PET Ta a 17

Schmerber v. California, 384 U.S. 757

ces ge MET EEE ee er Te eee 32

See v. Seattle, 387 U.S. 541 a 31

Terminiello v. Chicago, 337 U.S. 1 (1948) ....... 17

Terry v. Ohio, 392 U.S. 1 (196%) ..... 6, 23, 26, 27,33

Thornhill v. Alebama, 310 U.S. 84119460)... ... 915

Tinker v. Des Moines, 395 US. HOS (100) ...... 15

United States v. Brignoni-Ponce. 422

DE ndcccconsooeobososoosooos 2

United States v. Dionisia, 410 US. 1

Dl escatdsmbaddhabenbuntbbacsosooes 32

United States v. Harricea, 347 US. 612

SEED coococoseocecesoooesoeeooseccecs 12

United States v. Mera, 410 US. 1911973) ie eede 32

United States ~. Mertiner Fuerte, 428

US. 643 (11976)....... a ee . Bs

United States v. Miller, Nos. EP—TS

CR—19, 20 (W.D. Tex. May 31.

Ep cbeedenectesbdbusbsoboocccccocc: 32

United States v. OBrien, 391 US. 367

Cobh oocdddesecsooteéooess 16, 19, 33

United States v. Ortiz, 422 US. 89)

Dtiiindeseéeeédéuaieeiweeckbec ac

United States wv. Scion, 23 Cr. L.

2424 (D.C. Cir. July 21, 1978) ............,

United States v. Sullivan, 774 U.S. 259

GEUEUD ccccccccccccccccccccccccccedts 3}.

GEUOED Cocccccccocccséccscccccccceccces

Warden v. Hayden, 387 U.S. 294 (1967) ...... 23.32

Wiegand v. Seaver, 604 F.2d 303 (Sth

MURINE Tishaa dcdededckocecocs.

(1987) peSeeccccccccoccccceccceses

Texas Penal Code, Vernon’ seen Goins

Annotated, Section 34.02 | poem

18 United States Code, Section 3149

28 United States Code, Section 125702). .

50 United States Code. Section 4621)

(veiw)

IN THE

Supreme Court of the Hntted States

October Term, 1978

| No. 77-4673

ZACKARY C. BROWN

| Appellant.

v.

THE STATE OF TEXAS.

Procedure (Draft No. 1), Article 110,

ee cnacoes 2 ae

OJ. Rogge. The First and the Pifth Appeal from the County Court at Law Number Two

(Nelson: N.Y. 1960), pp. 186-190... ... ves 3 E} Paseo County, Texas

ee 4 Harverd L. eciceetens

Rew. 190 (1800).. er

wagnesben Medien. ......... scccececececs OE

speech when the Constitution protected silence. The

trial court denied the motion but questioned the con-

stitutionality of the statute. In a non-jury trial, Ap-

pellant was found guilty as charged and was fined

$100.00, a direct appeal was taken to this Court.

On October 16, 1978, this Court noted probable ju-

risdiction.

A. REPORTS

The County Court at Law Number Two is a court

of record but wrote no opinion in this case. Because

it is not an appellate court, none of its proceedings

are recorded in official or unofficial reporters. The

statute in question has never before been reviewed by

an appellate court.

B. JURISDICTION

Appellant was charged with violating Section

38.02(a) of the Texas Penal Code in that he allegedly

refused to give a report of his name and residence

address to a peace officer who had lawfully stopped

him and requested the information. Appellant was

fined the sum of $45.00 (App. 6). The judgment of the

County Court at Law Number Two was entered on

February 1, 1978 (App. 6). A Notice of Appeal was

filed with that court on February 3. 1978 (App. 10)

3

and an Amended Notice of Appeal was filed on Feb-

ruary 14, 1978 (App. 13).

This Court has jurisdiction by virtue of Section

1257(2), Title 28, United States Code, which pro-

vides as follows:

Final judgments or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court

-.++ [bly appeal, where is drawn in question

the validity of a statute of any state on the

ground of its being repugnant to the Constitu-

tion, treaties or laws of the United States, and

the decision is in favor of its validity.

The judgment of the County Court at Law in this case

is a decree rendered “by the highest court of a State

in which a decision could be had,” because pursuant

to Article 4.03 of the Texas Code of Criminal Proce-

dure, no appeal may be had to the Texas Court of

Criminal Appeals where the fine imposed does not

exceed $100.00. Article 4.03 of the Texas Code of

Criminal Procedure provides as follows:

ty court at law, in which the fine imposed by the

county court, the county criminal court or county

court at law shall not exceed one hundred dollars.

ee

4

The Texas Court of Criminal Appeals has previously

held that where one is fined less than $100.00 in a

county court at law, there is no eppeal to the Texas

Court of Criminal Appeals. Coates v. State of Texas,

308 S.W.2d 869 (Tex.Ct.Crim.App. 1957).

C. CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

In this appeal Appellant questions the constitu-

tionality of Section 38.02 of the Texas Penal Code.

which provides as follows:

§ 38.02. FAILURE TO IDENTIFY AS WITNESS

(a) A person commits an offense if he inten-

tionally refuses to report or gives a false report

of his name and residence address to a peace

That statute may be found at page 68, Volume 4, of

the Texas Penal Code, Vernon's Texas Codes Anno-

tated.

This case also involves the following amendments

to the Constitution of the United States of America:

5

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Gov-

ernment for a redress of grievances.

AMENDMENT IV.

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

AMENDMENT V.

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pres-

entment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any crim-

inal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be tak-

en for public use, without just compensation.

AMENDMENT XIV.

Section 1. All persons born or naturalized in

the United States and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

6

privileges or immunities of citizens of the United

States; or shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

D. QUESTIONS PRESENTED

QUESTION I: Section 38.02(a) of the Texas

Penal Code violates the Due Process Clause

of the Fourteenth Amendment to the United

States Constitution because it is vague and

overbroad on its face.

QUESTION, II: Section 38.02(a) of the Texas

Penal Code is unconstitutional because it

punishes conduct protected by the First

Amendment to the United States Constitu-

tion.

QUESTION III: Section 38.02(a) of the Texas

Penal Code is unconstitutional because it vi-

olates the Fourth Amendment to the United

States Constitution as making lawful unwar-

ranted invasions to one’s right of privacy.

QUESTION IV: Section 38.02(a) of the Texas

Penal Code is unconstitutional and in viola-

tion of the Fifth Amendment to the United

States Constitution because it compels

speech under pain of arrest when the Consti-

tution protects silence.

7

E. STATEMENT OF THE CASE

Shortly after noon on December 9, 1977, El Paso

Police Patrolman Venegas and his partner were driv-

ing on Magoffin Street in the City of El Paso. They

were patrolling the area and saw Appellant, Zackary

Brown, walking down an alley. Another person was

seen walking in the alley, but the officers could not

state that Appellant and the other pedestrian had met

or had talked to each other (App. 23, 24).

The officers drove into the alley, stopped Appellant,

and asked him his name and what he was doing in the

alley. Appellant refused to give his name. Appellant

was arrested. The officer noted that Appellant is a

black male in the mid-20’s (App. 27) and that he

stopped Appellant because he had not seen him in the

area before (App. 24). The officer admitted that many

blacks are found in that area of town. The officer

stated that he suspected no crime or that Appellant

was armed (App. 28), but that he just wanted to stop

and ask Appellant his name (App. 28). Appellant was

patted down and was taken to the jail for booking. No

contraband or weapons were discovered in any search

(App. 29, 31).

On the way to jail Appellant did tell the officers his

name, but he was still booked. The officer noted that

the violation was already complete (App. 32).

8

F. SUMMARY OF ARGUMENT

1. Section 38.02(a) of the Texas Penal Code is

void because it is vague and overbroad on its face.

The statute employs words, “lawfully” and “‘stops,”’

which create confusion and which are not words that

are commonly understood. The statute is lacking in

ascertainable standards of guilt so as to give reason-

able notice of the conduct which it seeks to prohibit.

Section 38.02(a) is broad on its face because it pun-

ishes protected conduct. Most probably the law was

intended to apply to material witnesses, but as writ-

ten the statute applies to witnesses and nonwitnesses

alike.

2. Section 38.02 of the Texas Penal Code is void

because it seeks to punish conduct protected by the

First Amendment. Under previous decisions of the

Court it has been held that one has the right to refuse

to answer questions from the police, to question a

police stop, and perhaps to walk away while a police-

man is asking questions.

3. Section 38.02(a) of the Texas Penal Code is in-

valid because it makes lawful unwarranted intrusions

into one’s right of privacy. The statute appears to

allow investigatory stops or detentions on grounds

less than those set out in Terry v. Ohio. The statute

compels a person to answer questions under pain of

arrest. In sum, the statute allows police to intrude

under amy circumstances and demand a person to

identify himself. The statute was not drawn in such

9

a manner which would protect those state interests

which the legislature apparently was seeking to ad-

vance.

4. Section 38.02(a) of the Texas Penal Code is void

because it compels speech when the Constitution pro-

tects silence. It is illogical to allow the arrest of a

person for silence, and then advise the arrestee, per

Miranda, that the arrestee then has the right to re-

main silent. The right to remain silent is obviously

present before arrest, except in some limited cases

where, in order to advance strong governmental in-

terests, individual rights might be subordinated.

G. ARGUMENT

QUESTION I: Section 38.02(a) of the Texas

Penal Code violates the Due Process Clause

of the Fourteenth Amendment to the United

States Constitution because it is vague and

overbroad on its face.

This Court has held for a number of years now that

most of the clauses of the First, Fourth, and Fifth

Amendments to the United States Constitution are

applicable to the states through the Fourteenth

Amendment Due Process Clause. Thornhill v. Ala-

bama, 310 U.S. 88 (1940); Mapp v. Ohio, 367 U.S. 643

(1961); and Malloy v. Hogan, 378 U.S. 1 (1964).

In addition to those rights, this Court has also held

that certain fundamental and procedural due process

10

rights were applicable to the states through the Four-

veenth Amendment Due Process Clause. Among those

is the requirement that penal statutes be drafted in

such a manner that the conduct which they purport

to prohibit is clearly known from a reading of the

statute.

The requirement of certainty in state penal provi-

sions was noted by this Court in Connally v. General

Const. Co., 269 U.S. 385, 391 (1926), in which this

Court stated as follows:

That the terms of a penal statute creating a

new offense must be sufficiently explicit to in-

form those who are subject to it what conduct on

their part will render them liable to its penalties

is a well-recognized requirement, consonant alike

with ordinary notions of fair play and the settled

rules of law; and a statute which either forbids

or requires the doing of an act in terms so vague

that men of common intelligence must necessar-

ily guess at its meaning and differ as to its ap-

plication violates the first essential of due proc-

ess of law.

See also Lanzetta v. New Jersey, 306 U.S. 451 (1939);

and Papachristou v. City of Jacksonville, 405 U.S.

156 (1972).

In one of the most publicized decisions of this

Court, it was held in Miranda v. Arizona, 384 U.S.

436, 444 (1966), that a person has a constitutional

right to remain silent. Indeed, it was the first of sev-

eral rights which were listed by this Court and which

ee ee

11

this Court held must be told to a person placed under

arrest. It would not be an exaggeration to state that

the man on the street, the layman, would believe that

the right to silence was his to invoke.

Nevertheless, a reading of Section 38.02(a) gives

no guidance concerning the circumstances which

would give rise to the application of Section 38.02(a)

in light of one’s right to silence. The statute requires

one to give a report of his name and address when

“lawfully stopped’”’ by a peace officer. What does

“lawfully stopped” mean? Is there any question but

that “men of common intelligence must necessarily

guess at its meaning and differ as to its application?”

Connally v. General Const. Co., supra. Obviously,

courts have struggled with the concepts of ‘‘stops,”’

“detentions,” and “arrests” for so many years that

the terms themselves are vague to lawyers, Supreme

Court justices, and obviously to laypersons. And even

more complex and confused is the meaning of the

term “lawfully.”’ Its meaning is so subjective and so

imprecise that one might reasonably fel that he was

not lawfully stopped, and therefore Section 38.02(a)

was inapplicable to him. For example, in Norwell v.

Cincinnati, 414 U.S. 14 (1973), Norwell, a 69-year-old

gentleman, was stopped by a policeman while he was

walking home. The police officer had received a report

that there was a “suspicious man” in the neighbor-

hood. When approached by the policeman who wished

to stop and question him, Norwell told the officer:

“I don’t tell you people anything.”” He was then

12

placed under arrest for disorderly conduct. This Court

reversed the conviction, stating:

Upon this record, we are convinced that peti-

tioner was arrested and convicted merely because

he verbally and negatively protested Officer

Johnson’s treatment of him. Surely, one is not to

be punished for nonprovocatively voicing his ob-

jection to what he obviously felt was a highly

questionable detention by a police officer.

414 U.S. at 16.

So apparently, as in this case, one does have the

right to question a stop, at least verbally. In this case

there was not even a “suspicious person” report. All

we have is an officer’s curiousity. Therefore, there is

no fair notice that refusal to answer an officer’s ques-

tions would be a violation. United States v. Harriss,

347 U.S. 612 (1954).

A statute which is vague and which is lacking in

ascertainable standards of guilt so as to give a rea-

sonable notice of the conduct which is prohibited is

unconstitutional. Palmer v. Euclid, 402 U.S. 544, 545

(1971).

In addition to facial vagueness, Section 38.02(a) is

unconstitutional because it is overbroad on its face.

A statute may be attacked for facial vagueness and

overbreadth even if it appears valid as applied to the

conduct of the accused raising the issue. Plummer v.

Columbus, 414 U.S. 2 (1973).

13

Clarity must exist not only as discussed in the va-

gueness problem above, but also in the scope of ap-

plication of the statute. Where a statute possibly

makes criminal protected conduct, it is overbroad.

Gooding v. Wilson, 405 U.S. 518 (1972): Broadrick

v. Oklahoma, 413 U.S. 601 (1973); Plummer v. Colum-

bus, supra; and Hess v. Indiana, 414 U.S. 105 (1973).

In cases involving First Amendment rights, this

Court has traditionally looked much closer at any

statute potentially infringing on such protected activ-

ities. Those laws possibly punishing First Amend-

ment protected speech or expression must be “‘nar-

rowly drawn to prevent the supposed evil.”’ Cantwell

v. Connecticut, 310 U.S. 296 (1940); Ashton v. Ken-

tucky, 384 U.S. 195 (1966); and Keyishian v. Bd. of

Regents of U. of St. of N.Y., 385 U.S. 589 (1967).

With respect to Section 38.02(a), it is possible that

a similar statute could have been drafted so as to cure

its overbreadth. The caption of the section states:

“Failure to Identify as Witness,”’ but the body of the

provision does not mention the word “witness.” The

section on its face applies to everyone, witnesses and

nonwitnesses alike. There is, however, an indication

that the overbreadth was not intended by the legis-

lature.

Section 38.02(a) replaced Article 2.24 of the Tex-

as Code of Criminal Procedure, which was repealed in

14

1973 upon the enactment of Section 38.02(a). Article

2.24 provided as follows:

IDENTIFICATION OF WITNESSES

Whenever a peace officer has reasonable

grounds to believe that a crime has been com-

mitted, he may stop any person whom he reason-

ably believes was present and may demand of

him his name and address. If such person fails

or refuses to identify himself to the satisfaction

of the officer, he may take the person forthwith

before a magistrate. If the person fails to identify

himself to the satisfaction of a magistrate, the

latter may require him to furnish bond or may

commit him to jail until he so identifies himself.

This old Article 2.24 which was repealed has sev-

eral useful points not found in new Section 38.02(a).

First, it specifically states that the officer must have

reason to believe that a crime was committed. Second,

it was not a penal statute and did not give the officer

the unfettered right to place a subject under arrest

for the mere refusal to speak. Third, a neutral and

detached magistrate made the final decision, and pre-

sumably if the officer could not show that the subject

was a witness to a crime, not even the magistrate

could compel the subject to state his name.

New Section 38.02(a) has none of the foregoing

protections and can apply to anyone whether a crime

was committed or not. This Court has long recognized

the right of a state to question material witnesses to

a crime, and indeed, to detain them if necessary. Stein

ae -

15

v. New York, 346 U.S. 156, 184 (1953). See also, Rule

46(g), Federal Rules of Criminal Procedure, and Sec-

tion 3149, Title 18, United States Code. In expanding

the statute here beyond the reach of material wit-

nesses, the legislature made the statute too broad

and, therefore, unconstitutional because the new stat-

ute then made criminal conduct protected by the

First, Fourth, and Fifth Amendments as applied to

the states through the Fourteenth Amendment Due

Process Clause.

QUESTION II: Section 38.02(2) of the Texas

Penal Code is unconstitutional because it

punishes conduct protected by the First

Amendment to the United States Constitu-

tion.

In several decisions this Court has held that the

Fourteenth Amendment Due Process Clause makes

applicable the First Amendment to the United States.

Gitlow v. New York, 268 U.S. 652 (1925); Near v.

Minnesota, 283 U.S. 697 (1931); De Jonge v. Oregon,

299 U.S. 353 (1937); Thornhill v. Alabama, supra; Can-

twell v. Connecticut, supra; and Chaplinsky v. New

Hampshire, 315 U.S. 568 (1942). The First Amend-

ment rights include not only the right to free speech,

but also the right to symbolic speech as well. Tinker

v. Des Moines, 393 U.S. 503 (1969).

This Court has, however, declined to state that one

has an absolute right of free speech, and in several

16

decisions various types of speech have been excluded

from the protective reach of the First Amendment.

For example, advocating criminal behavior with the

intent to incite others to criminal action, Dennis v.

United States, 341 U.S. 494 (1951); and Yates v.

United States, 354 U.S. 298 (1957); libel, Beauharnais

v. Illinois, 343 U.S. 250 (1952); obscenity, Roth v.

United States, 354 U.S. 476 (1957); and fighting

words, Cantwell v. Connecticut, supra; and Chaplin-

sky v. New Hampshire, supra.

This Court has developed a balancing test to weigh

the policy encouraging freedom of expression against

whatever the state interest was asserted in the par-

ticular case. The test was stated in United States v.

O’Brien, 391 U.S. 367, 376 (1968):

This Court has held that when ‘speech’ and ‘non-

speech’ elements are combined in the same course

of conduct, a sufficiently important governmen-

tal interest in regulating the nonspeech element

can justify incidental limitations on First

Amendment freedoms. To characterize the qual-

ity of the governmental interest which must ap-

pear, the Court has employed a variety of de-

scriptive terms: compelling; substantial; subor-

dinating; paramount; cogent; strong. Whatever

imprecision inheres in these terms, we think it

clear that a government regulation is sufficiently

justified if it is within the constitutional power

of the Government; if it furthers an important or

substantial governmental interest; if the govern-

mental interest is unrelated to the suppression of

free expression; and if the incidental restriction

a

17

on alleged First Amendment freedoms is no

greater than is essential to the furtherance of

that interest.

Whatever the words used, in addition to being out-

side the protection of the First Amendment, they

must lead a court to believe that their utterance

caused a clear and present danger. Schenck v. United

States, 249 U.S. 47 (1919).

The right to freedom of expression protected and

encouraged by the First Amendment does not mean

that the speech or expression will be pleasing to those

who see or hear it. Terminiello v. Chicago, 337 U.S. 1,

4 (1949). Merely uttering strong and displeasing

words, even profane ones, when there is no clear and

present danger does not mean that one may be pros-

ecuted. See, Eaton v. City of Tulsa, 415 U.S. 697

(1974), in which this Court reversed a contempt con-

viction where the accused said “‘chicken-shit”’ in court;

Hess v. Indiana, supra, in which this Court reversed

a conviction under the Indiana disorderly conduct

statute where the accused told a crowd at an antiwar

demonstration: ‘‘We’ll take the fucking street later

(or again);” or Wiegand v. Seaver, 504 F.2d 303 (5th

Cir. 1974), in which the Court reversed a conviction

under the Florida disorderly conduct statute for hav-

ing caused a disturbance in a saloon and uttering the

words “‘goddamn son-of-a-bitch.’’ See also, Plummer

v. Columbus, supra, where a cab driver made “a series

of absolutely vulgar, suggestive, and abhorrent, sex-

ually-oriented statements’”’ to his passenger. In Plum-

18

mer, however, the statute was held void on its face,

even though the speech involved might not have been

protected.

Here we have a case in which, at most, Appellant

questioned the legality of the stop and the motives of

the officers in making the stop. But he was not ar-

rested for the conduct, according to the officer. Rath-

er, he was arrested for refusing to answer questions.

This Court is capable of recognizing the abuse by law

enforcement of citizens who question authority; it has

on several occasions taken notice of such an abhorrent

practice. Oestereich v. Selective Service System Local

Board No. 11, 393 U.S. 233 (1968); Gutkencht v.

United States, 396 U.S. 295 (1970); and Norwell v.

Cincinnati, supra.

Other than to satisfy an officer’s curiousity and

then his vindictiveness when Appellant refused to

speak, what are the interests of the state which could

override the right to remain silent here and say noth-

ing or to question the authority of police? This is the

question which the state will address in its brief, but

in the court below the prosecutor noted the state’s

interests to be the following:

Well, the Governmental interest to maintain

the safety and security of the society and the

citizens to live in the society, and there are cer-

tainly strong Governmental interests in that di-

rection and because of that, these interests out-

weigh the interests of an individual for a certain

amount of intrusion upon his personal liberty. I

19

think these Governmental interests outweigh the

individual’s interests in this respect, as far as

simply asking an individual for his name and

address under the proper circumstances.

(App. 16).

I think in a way not identifying oneself tends

to thwart the police power. Because, for instance,

if an individual has committed a crime and if he

refuses to identify himself, that tends to thwart

the process.

(App. 17).

The interests listed by the prosecutor clearly are

inapplicable in this case, and the statute is not drawn

in such a manner to protect only those state interests,

First, there was not even an allegation by the state

that there was any danger posed here to anyone’s

security. Second, since no crime was even suspected,

there could be no “‘thwarting”’ of the process where

an individual committed a crime and refused to iden-

tify himself.

Perhaps in its brief before this Court, the state can

list some other interests which might apply here. But

given those which were listed below, under the

O'Brien test, forcing one to divulge his name and

address to satisfy an officer’s curiosity when no crime

was even suspected does not further ‘‘an important or

substantial governmental interest... .”

This case is governed by this Court’s decision in

Norwell v. Cincinnati, supra, in which it was held that

20

one cannot ‘‘be punished for nonprovocatively voicing

his objection to what he obviously felt was a highly

questionable detention by a police officer.’’ Such

words were constitutionally protected speech.

Inasmuch as this statute as applied here and on its

face punishes speech and nonspeech which is clearly

protected, the statute is invalid.

QUESTON III: Section 38.02(a) of the Texas

Penal Code is unconstitutional because it vi-

olates the Fourth Amendment to the United

States Constitution as making lawful unwar-

ranted invasions to one’s right of privacy.

Although this discussion comes under the Fourth

Amendment, it should be noted that the right of pri-

vacy recognized by this Court long ago is not only

protected by the Fourth Amendment, but also comes

under the shelter of the other Amendments. In Gris-

wold v. Connecticut, 381 U.S. 479, 483-484 (1965), this

Court Stated that “... the First Amendment has

a penumbra where privacy is protected from govern-

mental intrusion,’’ and that several other ‘‘guarantees

create zones of privacy,” including the First, Third,

Fourth, Fifth, and Ninth Amendments.

This right of privacy, however, will be discussed in

this section, as discussion of that right has generally

revolved around Fourth Amendment problems.

There are those who believe that one’s right to

privacy, if it exists at all, begins and ends in the home.

21

The right to be free from police questioning, eaves-

dropping, and surveillance clearly becomes less ab-

solute once a person leaves his home, or where the

person is on the street, in a car, or in public places.

No specific rule has been laid down, but generally this

Court has held that the Fourth Amendment protects

those things which most of us might consider to be

private even if the police did not intrude into one’s

property. Katz v. United States, 389 U.S. 347 ( 1967);

and Silverman v. United States, 365 U.S. 505 (1961).

In abandoning the concept that the right to privacy

is protected only within one’s property, this Court

followed the general principles espoused by Justice

Brandeis in his early well-known article, ‘The Right

of Privacy,” 4 Harvard L. Rev. 193 (1890), and later

in his dissent in Olmstead v. United States, 277 U.S.

438, 478-479 (1928). In Olmstead, Justice Brandeis

was advocating a broader concept of the right to pri-

vacy, one not limited by concepts of property law or

any other law, but rather guided by a notion that a

person's liberty and freedom were to be protected in

many different ways from unreasonable and unwar-

ranted intrusions. Written in 1928, and quoted

hundreds of times since then, the concept was stated

as follows:

The makers of our Constitution undertook to se-

cure conditions favorable to the pursuit of hap-

piness. They recognized the significance of man’s

spiritual nature, of his feelings and of his intel-

lect. They knew that only a part of the pain,

i a i a pa

22

pleasure and satisfactions of life are to be found

in material things. They sought to protect Amer-

icans in their beliefs, their thoughts, their emo-

tions and their sensations. They conferred, as

against the government, the right to be let

alone—the most comprehensive of rights and the

right most valued by civilized men. To protect,

that right, every unjustifiable intrusion by the

government upon the privacy of the individual,

whatever the means employed, must be deemed

a violation of the Fourth Amendment. And the

use, as evidence in a criminal proceeding, of facts

ascertained by such intrusio’’ must be deemed a

violation of the Fifth.

Necessarily, and in line with Fourth Amendment

cases generally, the right to privacy, or the right to

be free from arrest or detention when there is no in-

dication that a crime has been committed, or to be

free from searches or seizures on grounds less than

probable cause, are measured against the intrusions

involved with a standard of reasonableness. With

some limitations, the greater the need of the state to

intrude and the closer one comes to having probable

cause, the more likely it will be that the intrusion will

be upheld. Reasonableness, like privacy, is a fluid con-

cept. Harris v. United States, 331 U.S. 145 (1947).

Does the Constitution today protect citizens from

unwarranted detention based on less than probable

cause solely because of law enforcement claims that

they desire such detentions? Again, with some very

limited exceptions, the answer is that the Constitu-

23

tion does grant that security. Aguilar v. Texas, 378

U.S. 108 (1964); Spinelli v. United States, 393 US.

410 (1969); Beck v. Ohio, 379 U.S. 89 (1964); Draper

v. United States, 358 U.S. 307 (1959); and Brinegar v.

United States, 338 U.S. 160 (1949). This Court has

allowed a few, but limited, exceptions to the requier-

ment for probable cause, such as consent, United

States v. Watson, 423 U.S. 411 (1976); border search-

es, United States v. Martinez-Fuerte, 428 U.S. 543

(1976); hot pursuit, Warden v. Hayden, 387 U.S. 294

(1967); “stop and frisk,” Terry v. Ohio, 392 US. 1

(1968); and inventory searches, Cooper v. California,

386 U.S. 58 (1967).

Section 38.02(a) allows the arrest of a person where

there is no indication that the accused has either com-

mitted or witnessed a crime, or indeed, when there is

no indication that anything, civil or criminal, has oc-

curred. It is principally used to give an officer a pre-

text for an arrest or search, when no other violation

can be found. In at least one case it has been reported

that officers have refused to accept certain types of

identification in addition to verbal reports to identi-

fication. Heath, et al. v. Brown, et al, No. CA-4-77-

204 (N.D. Tex.).

This Court has reviewed a number of similar stat-

utes which allow arrests for conduct which falls short

of conduct one might consider criminal. In some cases

states have attempted to make criminal neutral activ-

ities such as loafing or sitting, or walking with no

particular purpose. In those vagrancy or suspicious

24

person cases, this Court held the ordinances void for

vagueness. But in doing so this Court necessarily rec-

ognized that there are many types of conduct which

cannot be criminal, regardless of their characteriza-

tion.

The difficulty is that these activities [walking,

strolling, wandering, loafing, loitering] are his-

torically part of the amenities of life as we have

known them. They are not mentioned in the Con-

stitution or in the Bill of Rights. These unwritten

amenities have been in part responsible for giv-

ing our people the feeling of independence and

self-conficence, the feeling of creativity. These

amenities have dignified the right of dissent and

have honored the right to be nonconformists and

the right to defy submissiveness. They have en-

couraged lives of high spirits rather than hushed,

suffocating silence.

Papachristou v. Jacksonville, supra, at p. 164. See

also Palmer v. Euclid, supra.

This Court, for many years, has recognized the

right of citizens in this country to speak out, even

when obnoxious, to walk, even when it seems to others

to have no purpose, and to preach, even when others

do not care to listen. Obviously, as in Norwell, one

has the right to protest a questionable detention or

attempted interrogation. In all these cases, therefore,

this Court has recognized several activities which are

beyond the reach of penal statutes. Those rights are

part of our general “right to be let alone.”’ Certainly,

25

silence, when there is no compelling reason to speak,

is one of those. If we protect the right of some to use

profane speech, can the right to silence be any less

secure?

It might be said by the state here that the Fourth

Amendment only applies after arrest and that here

we are only dealing with a “stop.” But in Davis v.

Mississippi, 394 U.S. 721, 726 (1969), this Court

rejected a similar notion and held “that the Fourth

Amendment was meant to prevent wholesale intru-

sions upon the personal security of our citizenry,

whether these intrusions be termed ‘arrests’ or ‘in-

vestigatory detentions.’ ”’

Section 38.02(a) allows a peace officer to demand

that any person identify himself regardless of his ac-

tivity, or the circumstances. The demand could take

place in a saloon or a synagogue, an office or a mill.

The state, at least so far, has not justified the scope

of Section 38.02(a). The state has, however, in its

Motion to Dismiss or Affirm, shrugged off the poten-

tially offensive sweep of the statute by stating that

intrusions under the statute are “modest.” This is a

familiar argument. But this Court has usually been

vigilant to the fact that if we were ever to lose our

liberty and freedom completely, it would occur not at

once, but one small step at a time. We are not vigilant

enough to combat “modest” incursions into and lim.

itations of our freedom.

Men born to freedom are naturally alert to repel

invasion of their liberty by evil-minded rulers.

26

The greatest dangers to liberty lurk in insidious

encroachment by men of zeal, well-meaning but

without understanding.

Olmstead v. United States, supra, at p. 479 (dissent

by Brandeis).

So the state argues in its motion that there is a

right to ‘stop and frisk,”’ for example, under Terry v.

Ohio, supra. Terry v. Ohio does give the police such

a right, but in that case at least two factors were

significantly different: (1) the officer suspected that

the suspects were ‘‘casing the job,”’ and (2) the officer

had reason to believe that the suspects were armed.

Neither of those factors was present in this case, nor

does Section 38.02(a) provide that there must be any

indication of a crime or danger for the provisions of

that statute to apply.

Terry v. Ohio is a difficult case. This Court in that

decision has allowed stops and limited searches on

something less than probable cause. One cannot jus-

tify that decision under the Fourth Amendment.

About the only way to explain it is that this Court,

as a practical matter, decided to allow police officers

a measure of safety while they stopped a person to

question him.

A policeman, just like any person, can ask a person

to stop to answer questions. It may be good police

work to stop and ask questions. Palmer v. Euclid,

supra, at p. 546. But what can a policeman do when

the subject refuses to answer questions and just

27

walks away? The answer is that the policeman can do

nothing and a person has the right to walk away,

unless there is reason to believe that the accused com-

mitted a crime other than refusing to answer. In Nor-

well v. Cincinnati, supra, this Court held that a person

may question an arrest and walk away. In Palmer v.

Euclid, supra, at p. 546, this Court stated:

A policeman has a duty to investigate suspi-

cious circumstances, and the circumstance of a

person wandering the streets late at night with-

out apparent lawful business may often present

the occasion for police inquiry. But in my [Har

lan] view government does not have consti-

tutional power to make that circumstance, with-

out more, a criminal offense. (Emphasis added)

In Davis v. Mississippi, supra, at p. 727, fn. 6, Jus-

tice Brennan wrote for the majority:

The State relies on various statements in our

cases which approve general questioning of citi-

zens in the course of investigating a crime. [Ci-

tations omitted] But these statements merely

reiterated the settled principle that while the po-

lice have the right to request citizens to answer

voluntarily questions concerning unsolved

crimes they have no right to compel them to

answer.

In Terry v. Ohio, supra, at p. 34, Justice White, con-

curring wrote:

There is nothing in the Constitution which pre-

vents a policeman from addressing questions to

28

anyone on the streets. Absent special circum-

stances, the person approached may not be de-

tained or frisked but may refuse to cooperate and

go on his way. However, given the proper circum-

stances, such as those in this case, it seems to

me the person may be briefly detained against

his will while pertinent questions are directed to

him. Of course, the person stopped is not obliged

to answer, answers may not be compelled, and

refusal to answer furnishes no basis for an arrest,

although it may alert the officer to the need for

continued observation.

See also, State v. Tsukiyama, 525 P.2d 1099 (Ha-

waii, 1974); State v. Baxter, 413 P.2d 638 (Wash.

1966); and ALI, Model Code of Pre-Arraignment Pro-

cedure (Draft No. 1), Article 110, Section

110.1(1).

So, at least by dictum, this Court has considered

situations like that presented in this case and has

stated that one can indeed walk away. In Norwell the

Court’s decision was that one had the right to walk

away.

So the ‘‘modest intrusion’”’ of requiring one to anws-

er questions against his will is not condoned. And

where a vehicular stop is concerned, this Court has

stated that random stops away from the border or at

places not the funcitonal equivalent of the border are

not condoned. Section 38.02(a) is not limited to pe-

destrians. It can be used to stop vehicles as well.

29

In United States v. Brignoni-Ponce, 422 U.S. 873,

880, 883 (1975), this Court was invited by the gov-

ernment to allow it to stop anyone near the Mexican

border and inquire about their citizenship when those

persons appeared to be of Mexican ancestry. Justice

Powell wrote for the majority:

The intrusion is modest. The Government tells

us that a stop by a roving patrol ‘usually con-

sumes no more than a minute.’ ... According

to the Government, ‘fall that is required of the

vehicle’s occupants is a response to a brief ques-

tion or two and possibly the production of a doc-

ument evidencing a right to be in the United

States.’

7’. *+ & & *#

Although we may assume for purposes of this

case that the broad congressional power over im-

migration ... authorizes Congress to admit

aliens on condition that they will submit to rea-

sonable questioning about their right to be and

remain in the country, this power cannot dimin-

ish the Fourth Amendment rights of citizens who

may be mistaken for aliens. For the same reasons

that the Fourth Amendment forbids stopping

vehicles at random to inquire if they are carrying

aliens who are illegally in the country, it also

forbids stopping or detaining persons for ques-

tioning about their citizenship on less than a rea-

sonable suspicion that they may be aliens.

So unless there is reasonable suspicion that a crime

has been committed, this Court does not allow random

30

stops for questioning away from the border or its

functional equivalent. Almeida-Sanchez v. United

States, 413 U.S. 266 (1973); United States v. Ortiz,

422 U.S. 891 (1975); and United States v. Martinez-

Fuerte, supra.

Now that we see that the broad right of privacy

does protect silence, how can the police compel

speech? Ever since Boyd v. United States, 116 U.S.

616 (1886), it has been recognized that compelling

production of documents when the Constitution pro-

tects silence is a violation both of the Fourth and

Fifth Amendments. See also, Brandeis dissent in Olm-

stead v. United States, supra.

QUESTION IV: Section 38.02(a) of the Texas

Penal Code is unconstitutional and in viola-

tion of the Fifth Amendment to the United

States Constituion because it compels

speech under pain of arrest when the Consti-

tution protects silence.

The issues in this case are all so related that it is

difficult to cut off discussion of one to start discussion

of the other, for necessarily there is a great deal of

overlapping. Like the other Amendments, Fifth

Amendment protections secured by the Self-Incrimi-

nation Clause have been made applicable to the states

through the Due Process Clause of the Fourteen

Amendment. Malloy v. Hogan, supra.

The scope of protection provided by the Fifth

Amendment is not and probably cannot be defined

aa pi ea ee og

31

with any certainty. Courts should, however, err in

favor of the invocation of the privilege. O. J. Rogge,

The First and the Fifth (Nelson: N.Y., 1960), pp.

188-190. Although the Fifth Amendment itself ap-

pears to be couched in terms which would lead one to

believe that its terms are absolute, decisions of this

Court have held the contrary and have employed a

balancing test, weighing the state interests or claims

on the one hand against the invocation of the privilege

on the other. California v. Byers, 402 U.S. 424

(1971).

Although this Court has held as a general propo-

sition that one cannot be punished for the act of in-

voking a constitutional right, See v. Seattle, 387 U.S.

541 (1967); Camara v. Municipal Court, 387 U.S. 523

(1967); Albertson v. SACB, 382 U.S. 70 (1965); Mar

chetti v. United States, 390 U.S. 39 (1968); Grosso v.

United States, 390 U.S. 62 (1968); Haynes v. United

States, 390 U.S. 85 (1968); and Leary v. United

States, 395 U.S. 6 (1969), there are instances where,

because of governmental needs which this Court felt,

as a practical matter, were paramount, this Court has

subordinated Fifth Amendment claims. California v.

Byers, supra; United States v. Sullivan, 274 U.S. 259

(1927); and Shapiro v. United States, 335 U.S. 1

(1948).

The state has argued previously here that the state

may compel the disclosure of one’s name and address

because that is not testimonial or communicative and

is, therefore, not protected by the Fifth Amendment.

32

In Schmerber v. California, 384 U.S. 757 (1966); and

Warden v. Hayden, supra, this Court did allow the

use of blood and clothing seized from the accused, and

the Court specifically left open the question whether

there was some evidence which an accused could not

be compelled to produce. What comes from one’s lips

is testimonial and communicative, Wigmore, to be

contrasted from compelling the production of words

or actions solely because they are physical character-

istics. United States v. Wade, 388 U.S. 218 (1967);

United States v. Dionisio, 410 US 1 (1973); Gilbert

v. California, 388 U.S. 263 (1967); United States v.

Mara, 410 U.S. 19 (1973); and Cupp v. Murphy, 412

U.S. 291 (1973).

A person’s identity can be testimonial and com-

municative, and it can be incriminating at least in the

sense that it can provide a link which might enable

the state to obtain other incriminating evidence.

United States v. Scios, 23 Cr. L. Reporter 2424 (D.C.

Cir. July 21, 1978); Gissendanner v. Wainwright,

482 F.2d 1293 (5th Cir. 1973); and United States v.

Miller, Nos. EP-78-CR-19, -20 (W.D. Tex., May 31,

1978), government appeal pending (No. 78-2274, 5th

Cir.).

The real question, however, is whether the claims

of the state here are compelling enough so that the

right of silence on the part of Appellant must give

way. Here again, the case of Norwell v. Cincinnati,

supra, comes closest to this case. And in this case the

claims of Appellant are even stronger than those in

TT eek ek

33

Norwell, as here there was no suspicious person report

and the occurrences took place in daylight. In Cali-

fornia v. Byers, supra, this Court did review the con-

stitutionality of the California ‘hit and run” statute

which required drivers of vehicles involved to stop

and give a report of their name and address. This

Court noted that all 50 states have similar statutes.

Much as the Sullivan and Shapiro, and indeed as in

Terry v. Ohio, this Court has made a practical decision

that the interests of the state in “hit and run” cases

are so strong that some rights would be subordinated.

When one drives a vehicle, some rights will be

preempted. For.example, by the mere fact that one

drives one may subject himself to certain license

checks, vehicle inspection, searches at the border or

equivalents of the border, blood tests, breathalyzer

tests. Without question, this Court has recognized a

strong interest in the state to regulate drivers and

vehicles. Hess v. Pawloski, 274 U.S. 352 (1927); and

Kesler v. Dept. of Public Safety, 369 U.S. 153 (1962).

Those interests of the state are simply not present in

this case, and Section 38.02(a) is not drafted in such

a manner to protect those interests without penalizing

protected conduct. The strong interest in government

to be able to raise an army allowed the government

to require registration with the Selection Service

Board, and made mandatory the possession of certif-

icates evidencing that registration. United States v.

O’Brien, supra; and Section 462(b), Title 50, United

States Code.

me i$ A A A

34

Section 38.02(a) applies to motorists and nonmo-

torists alike. In this case it was applied to a pedestri-

an. While the state undeniably may have the right to

have cerain information about motorists, it has never

been contended that a similar right exists over pedes-

trians. So far, to be a pedestrian, one needs no license

and one is not regulated by the state. So in using the

balancing test approach, what interest, other than

that of curiousity, does the state intend to advance in

allowing the random stop of pedestrians to demand a

report of the person’s name and address?

Section 38.02(a) clearly compels speech. It pro-

vides no meaningful guidance restricting its use. It

advances no discernable, reasonable state interest. It

provides the police with a weapon to punish protected

conduct and to use the statute in a capricious and

arbitrary manner.

In view of all the publicity about the Miranda de

cision, one could expect that the public might believe

that one does indeed have the right to remain silent.

If one has the right to remain silent after arrest, sure-

ly the invocation of that right prior to arrest should

not furnish the basis for the arrest itself so that the

officer can then advise the arrestee that he then has

the right to remain silent. Thus, the position of the

state here is that one must be arrested in order to

have the right to remain silent, a thoroughly confus-

ing and obviously illogical contention.

35

Conclusion

For all of the foregoing reasons, Appellant urges

this Court to reverse his conviction and to declare

Section 38.02(a) of the Texas Penal Code void on its

face.

Respectfully submitted,

RAYMOND C. CABALLERO

HEARSON & CABALLERO

Attorneys for Appellant

1610 State National Plaza

El Paso, Texas 79901

Phone: (915) 544-2114