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**adjusterjack** · 06-15-2021, 07:47 PM

Are you one of those "I got rights" people who like to bait cops?

Under the plain reading, it seems to me that I do not have to identify myself. I can deny a "request".

Sure. Then the cops suspicions get increased, the request becomes a demand and when you keep playing the game you end up on the ground in handcuffs.

Here's a novel idea. When you get stopped by a cop, cooperate. If he asks your name, address, and what you are doing there, tell him. Can't hurt you, and cooperation doesn't escalate. Unless, of course, you are in the process of committing a crime or have just committed a crime, then you want to lawyer up.

If he's not playing by the rules, you address it in court, not in the street.

**Guest** · 06-15-2021, 08:23 PM

I would call he ACLU and get a lawyer on their butts!

**jrexchandler** · 06-15-2021, 08:35 PM

Originally posted by adjusterjack View Post

Are you one of those "I got rights" people who like to bait cops?

Sure. Then the cops suspicions get increased, the request becomes a demand and when you keep playing the game you end up on the ground in handcuffs.

Here's a novel idea. When you get stopped by a cop, cooperate. If he asks your name, address, and what you are doing there, tell him. Can't hurt you, and cooperation doesn't escalate. Unless, of course, you are in the process of committing a crime or have just committed a crime, then you want to lawyer up.

If he's not playing by the rules, you address it in court, not in the street.

Here's another novel idea, rabidly protect your rights. I suppose you'd be ok with the police just showing up at your house and looking through your things? No, why not?
I'm a respecter of law enforcement, I don't bait anyone. But, I also don't roll over when I'm commanded to by the government.

Having said that, my question, was really about the 'Plain reading rule'. The plain meaning of the words 'request' and 'demand' are obvious. My question was about the legalities of the words.

James

**jrexchandler** · 06-15-2021, 08:36 PM

Originally posted by Guest View Post

I would call he ACLU and get a lawyer on their butts!

Between me and you, I wouldn't enlist the ACLU's help if they were offering to help me move!

**adjusterjack** · 06-15-2021, 09:31 PM

Here's another novel idea, rabidly protect your rights. I suppose you'd be ok with the police just showing up at your house and looking through your things? No, why not?

Of course not. Apples to oranges. I'm a gun guy and a rabid proponent of the Second Amendment. So, no, they aren't looking through my things without a warrant.

But if a cop pulls me over or stops to talk to me, he can have the name, rank, and serial number without question. I've talked my way out of a few traffic tickets by being polite and cooperative.

But, I also don't roll over when I'm commanded to by the government.

Good for you. Give the "man" some "tude" and he'll do the rolling over.

Having said that, my question, was really about the 'Plain reading rule'. The plain meaning of the words 'request' and 'demand' are obvious. My question was about the legalities of the words.

The legality is because the legislature wrote them that way.

**jrexchandler** · 06-16-2021, 11:32 AM

Originally posted by adjusterjack View Post

Of course not. Apples to oranges. I'm a gun guy and a rabid proponent of the Second Amendment. So, no, they aren't looking through my things without a warrant.

But if a cop pulls me over or stops to talk to me, he can have the name, rank, and serial number without question. I've talked my way out of a few traffic tickets by being polite and cooperative.

Good for you. Give the "man" some "tude" and he'll do the rolling over.

The legality is because the legislature wrote them that way.

I think we got off on a bad start, and it's probably my fault for the wording of my post. So let's lower the temperature

I wouldn't say it's totally apples and oranges, I'd say the 4th amendment implications are the same in either case. But, that's really wasn't intended to be the point of my question. I should have said that I assumed that the officer DID have 'particularized suspicion' and that the stop was legal. I was really more interested in the ambiguity of the statute and what a judge/jury would think about the situation. Obviously, if you don't show an ID, you're going to be arrested. But that doesn't mean you're guilty

And, just because the legislature writes a law and the executive signs it doesn't make it 'legal'. It has to fit within the framework of the state and federal constitutions and within established case law (as far as I know). One part of that case law is the 'plain reading rule'. It seems to me that you'd have a case.

Having said that, I'm not going to be the test case

**adjusterjack** · 06-16-2021, 05:43 PM

Temp lowered. I'm on several legal forums. Questions like yours often come from the type of person who walks down the street with the AR strapped to his back just waiting for the police to approach him so he can video the encounter. I see you aren't that, so I'll play.

Getting back to:

Section (a) says a peace officer "may request the person's name..." and ".. if the person is the driver of a vehicle, demand the person's driver's license"
So, assuming that the officer has "particularized suspicion" they may "request" the information. This is in contrast to being able to "demand" a driver's license.
Under the plain reading, it seems to me that I do not have to identify myself. I can deny a "request".

I think you are making too much of a distinction between a "request" and a "demand" where, as a practical matter, there isn't any. You can deny a "request" but you can also deny a "demand." I don't see much of a distinction nor do I see any ambiguity. And neither, apparently, do the courts.

In Hulse v State (1998) the court's decision relates the following:

"Officer Kennedy approached Hulse, identified himself, and informed her he had stopped her because she was driving without her headlights on after dark. Hulse responded that she did have her headlights on. Officer Kennedy asked her to produce her driver's license, registration and proof of insurance. Hulse produced her registration and after several attempts produced her proof of insurance. When Officer Kennedy again asked her for her driver's license, Hulse became agitated. After Officer Kennedy requested her driver's license for the third time, Hulse produced it."

"Asked" and "requested" are used interchangeably and nowhere is the word "demand" used.

State v Krause (2002):

"Officer Heinecke recognized the man as Kade George Krause. Krause rolled down the window at Officer Heinecke's request and, when he did so, Officer Heinecke detected the odor of alcohol on Krause's breath and he observed that Krause's eyes were bloodshot and glassy. Officer Heinecke asked Krause for his driver's license, registration and proof of insurance."

Again, "request" and "asked" used interchangeably. "Demand" is absent. Officers don't go up to drivers and say things like "I am asking you to..." or "I request that you ..." or "I demand that you." They make a statement in the imperative and it results, or should result, in compliance.

Here's one that doesn't involve a traffic stop.

State v Bar-Jonah (2004) involves stopping a known sex offender near a school:

"Brunk asked Bar-Jonah to come to the front of the car and remove his hands from his pockets. Bar-Jonah ignored his request even after Brunk asked him a second time to take his hands from his pockets. At that time, Officer Badgley ("Badgley") arrived. Brunk asked Bar-Jonah if he had something in his pocket and Bar-Jonah responded that he had a stun gun."

Same as before. "Request" and "asked." Nobody reported "demanding" anything. Yet, in all three cases, the "asking" and "requesting" did not imply that the suspect had the option of declining the request, at least not without obvious consequences and, in the case decisions that I have read so far, the Montana Supreme Court didn't see any need to address the issue.

I was really more interested in the ambiguity of the statute and what a judge/jury would think about the situation. Obviously, if you don't show an ID, you're going to be arrested. But that doesn't mean you're guilty.

And, just because the legislature writes a law and the executive signs it doesn't make it 'legal'. It has to fit within the framework of the state and federal constitutions and within established case law (as far as I know).

There are numerous cases involving 46-5-401 that you can read on Google Scholar:

46-5-401 - Google Scholar

There is no ambiguity. The case decisions have to do with what the officer does, not what he says.

One part of that case law is the 'plain reading rule'.

You'll have to tell me where you got that from by citing one or more case decisions that address the 'plain reading rule.' Because, so far, the one I found refers to "plain, unmistakable language."

Brown v State:

"In making this argument, Brown contends that based upon the "plain, unmistakable language" in this Court's decision in State v. Gopher, 193 Mont. 189, 631 P.2d 293 (1981), only an "experienced" officer can make the proper inferences regarding a DUI. In this case, Brown contends that Deputy Martin was lacking the requisite experience because he had conducted only four prior DUI investigations and he had been on the job for less than one year."

The court goes on to explain why the "plain, unmistakable language" of State v Gopher did not support Brown's argument.

Brown v. State, 203 P. 3d 842 - Mont: Supreme Court 2009 - Google Scholar

It seems to me that you'd have a case.

A case for refusing to identify yourself during a stop? I don't think so. 😏

Having said that, I'm not going to be the test case

Good thinking. Neither will I. Discretion is the better part of valor. Err on the side of caution.

**Guest** · 06-16-2021, 06:03 PM

hmm that was hard for me to even follow...

**winit** · 06-16-2021, 06:42 PM

The cops, sheriffs been investigating my area like crazy, not sure what heck is going on. Sometimes I feel spied on. Weird stuff going on.

**AFFA** · 06-16-2021, 07:01 PM

I wish to inform you that Montana’s Terry statute ought to be read to draw an operative distinction between the words “request” and “demand.” As ordinarily understood, the words “request” and “demand” convey different meanings. Author K Luther notes that while a survey of dictionary definitions supports the idea that there may be overlapping ground, primarily a request is understood as soliciting a gratuity whereas a demand seeks to enforce an obligation. These are functionally different acts, and this interpretation in the context of Montana’s Terry statute accords with the presumption of meaningful variation because the legislature used both words in different places in the statute. Because the text of the statute supports this interpretation, it is unnecessary to dive into the legislative history. You may contact an attorney and seek further guidance.

AFF

**adjusterjack** · 06-16-2021, 11:03 PM

Affa, you ought to be ashamed of yourself. 12 years on this legal website imparting your wisdom and you don't know any better than to engage in plagiarism and copyright infringement. Your comments are lifted verbatim from Kirsi Luther's article in the Montana Law Review (Volume 81 5-1-2020) without giving appropriate credit to the author.

"<em>Montana's</em> Terry <em>Statute</em>" by Kirsi Luther (umt.edu)

Ms. Luther points out that, in City of Missoula v. Kroschel (2018) the court failed to specifically address whether "request" and "demand" are synonymous or not but the decision

" indicates that Montana courts should construe the word “request” to have the same operative force as a “demand” despite the clear textual delineation in the statute."

Ms. Luther goes on to analyze the statute and concludes that the words have different meanings and that they should have a limiting effect on an officer's ability to question a suspect.

While Ms. Luther's opinion is interesting, it is not the law in Montana and a non-driving person would be at risk for not complying with a "request."

**Guest** · 10-06-2021, 05:05 PM

Originally posted by adjusterjack View Post

Are you one of those "I got rights" people who like to bait cops?

Sure. Then the cops suspicions get increased, the request becomes a demand and when you keep playing the game you end up on the ground in handcuffs.

Here's a novel idea. When you get stopped by a cop, cooperate. If he asks your name, address, and what you are doing there, tell him. Can't hurt you, and cooperation doesn't escalate. Unless, of course, you are in the process of committing a crime or have just committed a crime, then you want to lawyer up.

If he's not playing by the rules, you address it in court, not in the street.

sounds like you roll over and give up your rights. You are a sheep! The laws are written not by officers at the call they are written beforehand to protect our rights. Throwing someone on the ground for not obeying a unlawful request and handcuffing them is scare tactics to force us into submission. Exactly why cops are getting a bad reputation! That gun and badge doesn’t make them above us if we haven’t committed a crime! When they get that badge and gun to many times it swells their head into believing they are the masters and the peasants must obey and that just isn’t so. If you are ok with someone who hasn’t committed a crime being treated as you described then you are the problem with society and not the innocent being assaulted by the very ones who swear to protect the same people being thrown down. Your comment to just comply even though they are wrong and being ok with it is sickening.

**Guest** · 12-29-2022, 06:55 PM

i agree. the only circumstances where a person clearly violates Montana statute by NOT providing their identity (a drivers license) is when they are the DRIVER of a motor vehicle AND they have been observed by a law enforcement officer with reasonable cause to suspect (particularized suspicion) that they have, are, or are about to commit a crime.

it is true that the Montana law allows LEOs to to stop and request identity of anyone (drivers or otherwise) under the same conditions of suspicion, the non-drivers are not violating law by not providing the information.

How each situation will play out, apart from this one clearly defined aspect of Montana law, is unknown - apart from the specifics of the situation - and, frankly, irrelevant to the discussion.