It’s an attempt to bypass Fourth and Fifth Amendment protections by insisting it’s not an arrest.
A Kentucky lawmaker wants to grant police in his state the power to detain a person for two hours if he or she declines to offer up identification or answer an officer’s questions while they’re investigating possible criminal activity. Lawyers? Miranda warnings? Forget about them.
The bill was introduced by state Sen. Stephen Meredith (R–Leitchfield), and civil rights lawyers are warning that it could open a big, nasty, easily abusable, unconstitutional can of worms.
The bill states that the person who is being detained by police in this process is not considered under arrest, which appears to be a mechanism to try to keep a person from demanding a lawyer. It could also get people to incriminate themselves by making them answer police questions or face temporary detention.
While police are obviously empowered to investigate criminal activity, this bill, SB 89, seems designed to give police the power to target individuals for harassment for the sketchiest of reasons. Meredith told the Lexington Herald-Leader that one of the incidents that inspired the bill (which he acknowledges was pushed forward at the urging of local police) was a man lingering outside an apartment complex, which made neighbors nervous. They called the police, but the man refused to answer their questions and left. They found out later that he had outstanding arrest warrants.
But Rebecca DiLoreto, who lobbies for the Kentucky Association of Criminal Defense Lawyers, noted that the police could have tagged this guy for violating the state’s loitering laws, and then they could have used that actual allegation of criminal activity to demand ID and check for warrants.
DiLoreto warns that SB 89’s passage would lead to an environment where police would be able to detain people for up to two hours without having to keep official records because these people aren’t technically arrested. She tells the Herald-Leader:
“The idea that we can detain people because we find them to be suspicious and we think they might commit a crime, that crosses a dangerous line. Now, unfortunately, it has been known to happen. Sometimes it’s in a mostly white community where someone spots a black person walking down the street and they get suspicious and call police.
The ‘crime’ in this case is basically that you’re here and we don’t think, from looking at you, that you should be here. The potential for abuse in that seems obvious.”
It would also most certainly violate people’s Fourth and Fifth Amendment rights. https://reason.com/2020/01/21/kentucky-lawmaker-wants-to-give-police-the-power-to-detain-people-who-dont-answer-their-questions/?itm_source=parsely-api