Appeals court rejects ID laws

Tuesday, Feb. 5, 2002 | 9:24 a.m.

CARSON CITY -- People detained by law enforcement officers do not have to reveal their names, a federal appeals court ruled in a casino cheating case Monday.

The 9th U.S. Circuit Court of Appeals struck down two Nevada laws that make it a crime for people to refuse to identify themselves to police when they are detained.

The appeals case involved James Carey, who was suspected of cheating at blackjack at the Ramada hotel in Laughlin in June 1996. Carey and his partner, Ed Amsberry, were card counting, "shuffle tracking" and giving one another hand signals, all legal maneuvers, according to court records.

Casino personnel believed the two had an illegal computer device in their shoes. They were detained and questioned by state Gaming Control Board Agent Gregory Spendlove. The two men were searched and their shoes examined. No cheating device was found.

Carey was read his Miranda rights and advised he could remain silent. Agents asked him three times to identify himself, but he refused and asked for a lawyer.

Carey was booked under two laws that require people to provide information to peace officers if police have "reasonable suspicion" to detain them. He spent the night in jail and was released the following day without any charges being filed.

"An arrest under such circumstances is unreasonable," the court ruled. "We therefore hold that Carey's arrest violated the Fourth Amendment.

"Spendlove was able to arrest Carey even though there was no probable cause to believe that Carey had violated the gaming laws, and even though Carey's name was not relevant to determining whether Carey had cheated," Judge Robert Boochever wrote.

Boochever noted the court had issued two previous opinions that laws requiring a person to identify himself when detained by an officer are unconstitutional.

This case is different than when a law enforcement officer stops a motorist and asks for identification, Carey's attorney, Robert Nersesian said. Driving is a privilege, not a right, he said, so a driver must produce his license.

But he added, "I have yet to see a case from any court that held outright that it's constitutional to compel the identity, short of booking."

In a footnote, the court noted the Nevada laws authorized Carey's arrest, despite the lack of probable cause and his being told he had the right to remain silent.

The court said the search of Carey's shoes violated his constitutional rights, and the law allowing him to be detained was unconstitutional because Carey was arrested for exercising his right to remain silent.

Boochever threw out portions of the lawsuit against the state, the Gaming Control Board and Spendlove in his official capacity, noting that Nevada law exempts the state from lawsuits filed against it in federal courts.

The judge allowed only a lawsuit against Spendlove in his personal capacity, and returned it to U.S. District Court in Las Vegas.

Nersesian said his client "won the important part of the suit."

"I'm satisfied and heartened that the court recognized there is a limit on police activity addressing an innocent person," he said.

Nevada Deputy Attorney General Kimberly Maxson Rushton said the state would defend Spendlove in further action and would pay any damages he might be ordered to pay to Carey.

But she said she will be meeting with superiors on a possible appeal of the decision to the U.S. Supreme Court because of a split of opinion among the circuit courts in the nation. The 6th, 7th and 10th Circuit Courts have ruled laws requiring identification are constitutional.

She also said a case is before the Nevada Supreme Court on a conviction of a man in a domestic violence case from Humboldt County in which he was found guilty of failing to identify himself.