It's the Law

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It's the Law! *

Exercise your rights at your own peri1!

Email your questions to: dtebaldi@tebaldiesq.com

by Demian David Tebaldi, Esq.

Dear ITL: If I am a passenger in a car that is pulled over by police do I have to submit to a request for identification information? Many years ago (1969) during the Ted Kennedy-Chappaquiddick car accident incident it was revealed that there is no law in this state that requires you to report a car accident to police. I believe the law just says that the accident must be reported; in other words I could tell my neighbor or my attorney but I am not compelled to tell police. Has this oversight ever been rectified to require that police be notified of a property damage or personal injury accident? Thanks, I thoroughly enjoy your column. E.T.

Dear E.T.: Any time a question is asked about the relationship between police officers and private citizens, the answer is nearly always locked in the Fourth Amendment. The Fourth Amendment is that amendment which circumscribes police action, and is the one to turn to when the reasonableness of a police search or seizure of private persons or property is called into question.

As to your first query, the answer depends upon how much trouble you are looking to get into. To put it succinctly, no, you do not have to submit to an officer’s request for identification. Your refusal, however, may lead the interrogating officer to become suspicious of your potential involvement in whatever alleged infraction caused the police to pull the car over in the first place, and that, in turn, may lead to your being detained longer than you would have been had you not refused to provide identification. It may also lead to your being ordered to get out of the car, spread your legs and submit to a Terry frisk (you remember Terry v. Ohio, yes?). But this answer deals with a citizen’s choice whether or not to submit to what he or she may feel is unreasonable conduct on the part of the police.

The Courts, on the other hand, have held and continue to hold that interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure. What this means, in laymen’s terms, is that if you were to refuse to comply with a request for identification and were to be detained or arrested as a result, you could not bring a claim of unreasonable seizure under the Fourth Amendment as to the initial request for identification. Any steps that the police took after your refusal would be subject to Fourth Amendment analysis, but not the request itself.

As to your second question, regarding the state of the law in the Commonwealth as it pertains to the mandatory reporting of car accidents, it is as clear as a law can be (which, I know, is not saying much). Massachusetts General Law ch. 90 § 26, Reporting Accidents, indicates that any operator of a motor vehicle involved in an accident which causes human injury or death, or property damage in excess of $1,000.00 shall, within five days following the incident, make a report in writing to the Registrar (of Motor Vehicles), and send a copy of the report to the Police Department having jurisdiction over the locale in which the incident occurred. Failure to report such an incident may lead to the Registrar suspending or revoking the driver’s license of the motor vehicle operator (provided, of course, that he or she can be identified), but does not invoke the possibility of either jail time or a fine. Although it has gone through numerous amendments since its inception, the substance of this law has not changed since it was written in 1913.

I’m glad that you find the column enjoyable, E.T. Keep reading, and keep the questions coming!

Dear ITL: If a family trespasses onto my land to pick raspberries and one of the children gets stung by a bee ending up in the ER, am I liable. If I put up a sign stating "private property - please do not pick the berries", would that help? I do hate property postings. FIG

Dear FIG:

If the family is actually trespassing upon your private property, that is, they have entered upon your land without your express or implied consent, the answer is a resounding “No.” The owner of private property has no duty to make his or her land safe for trespassers, and a land owner is not generally liable for injuries befalling trespassers while the latter were engaged in the tortious act.

There are other considerations, of course; nothing in the law is so easily determined. If, for instance, you had on your property some broken playground equipment, a giant hill of sand, or an outdoor puppy ranch, the answer might be very different indeed. Constructions such as these, that tend to lure children like moths to a covered flame, are what are known as “attractive nuisances,” and can be the basis for liability on the part of the property owner if a child is injured while trespassing on his or her property to get at the “nuisance.” Nothing about a raspberry bramble or a bees’ nest is very “attractive,” and, although either may be a nuisance if untended to, neither would form the basis for an “attractive nuisance” under the law.

Property postings are really only good for informing the public, which includes invitees and licensees, of possible artificial dangers (open wells, vicious dogs, etc.) extant on the land. Your proposed sign, “Private Property – Please do not pick the berries,” would do no more than inform the trespassing family of what they already know; namely, that the land they are on is not theirs and that the berries do not belong to them. As a result, the sign would not be necessary. It may help to dissuade the trespassers from continuing their pilfering of your berries, but would otherwise have no legal effect.

*Disclaimer: The answers provided in this column are not in any way to be construed as legal advice. While the author is an attorney admitted to practice law in the Commonwealth of Massachusetts, the questions presented do not come from clients, but from anonymous members of various Massachusetts communities. The answers presented merely describe what the law is, and do not contain specific strategies for dealing with the situations presented. If you have questions regarding these or other legal issues, please contact Attorney Demian David Tebaldi at 508-435-5576.

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