So, which part of this would you see as "new ground" for the VA judges?
I don't understand your question. Please elaborate; let me know what you're thinking.
ETA: Oh, I think I might see where we're skipping a groove.
Realize there is a very good chance the constable identity demand power is already included in the Founders/originalist understanding of the 4A. Meaning, there is a very good chance the Founders understood the 4A
not to protect against such constable identity demand after dark. Meaning, the Founders and Bill of Rights ratifiers may very well have considered an after-dark constable identity demand to be reasonable, thus not prohibited by the 4A.
Hiibel would not reach that, I'm thinking. And, I'll take odds that if the question were to come before the current pro-police SCOTUS, they'd find all kinda ways to distinguish between
Hiibel and the relevant constable power.
Wait a second. Just for fun, since we're discussing stuff with little practical applicability today, I wonder what time of day was the police encounter that occurred in
Brown v Texas?
Brown was the SCOTUS case where the court said RAS was needed. Lemme check.
EETA:
Yeeeehaaaaaaw!!!
Brown v Texas 1979 and
US v Brignon-Ponce
Although the encounter in Brown happened at 12:45 in the afternoon, not after dark, we've got some solid ground to stand on here, I think. Disclaimer: I am not a lawyer.
Brignoni as quoted by
Brown:
"[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized' that person," and the Fourth Amendment requires that the seizure be "reasonable." (bold emphasis added by Citizen)
And, the holding in
Brown:
The application of Tex.Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is reversed.
Now,
Brown has more to say on the subject, and quotes other cases, too. Very interesting reading, so I urge all to read it.
But, my point here is that it would seem that
Brignoni knocked the VA constable after-dark identity demand power back into the Middle Ages where it came from by saying
whenever a cop restrains a person it is a seizure. And,
Brown applied 4A RAS doctrine directly and expressly to a state identity demand statute.
It just dawned on me that Brignoni said the
whenever seizure had to be reasonable. An originalist understanding of the 4A may have encompassed the constable power as reasonable. So,
Brignoni isn't as effective here as I first thought. But, I didn't feel like going back and retyping all that. Sorry.
But,
Brown is still pretty explicit. Must have RAS for an identity demand.
Hee hee. I don't think we have to worry much about constable after-dark power any more. I hope User will evaluate all this for us.
My main points:
1. Street lights prove the government knows lotsa people will be out after dark, thus "after dark" can no longer be suspicious in and of itself as it was in the Middle Ages.
2. Current 4A RAS doctrine cancelled the compulsory stop power of the constable.
3. Desuetude (long disuse renders the law inoperative) nullifies the constable power.
Side Note: The existence of that VA Attorney General opinion to the effect that identity refusals are not obstruction supports the idea that the constable power is a bit arcane.
Brown:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0443_0047_ZO.html