                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Fernandez, 2011 IL App (2d) 100473




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     ANGEL FERNANDEZ, Defendant-Appellant.



District & No.              Second District
                            Docket No. 2-10-0473


Rule 23 Order filed         October 26, 2011
Rule 23 Order
withdrawn                   December 28, 2011
Opinion filed               December 28, 2011


Held                        A conviction on a count alleging resisting or obstructing a peace officer
(Note: This syllabus        by defendant’s refusal to give a police officer his name or identification
constitutes no part of      was reversed, since the refusal to provide one’s name or other identifying
the opinion of the court    information is akin to “mere argument” and will not support a conviction
but has been prepared       for resisting or obstructing a peace officer.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Kane County, No. 09-CM-1199; the
Review                      Hon. M. Karen Simpson, Judge, presiding.



Judgment                    Affirmed in part and reversed in part.
Counsel on                 Thomas A. Lilien and Jack Hildebrand, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Victoria E. Jozef, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE HUTCHINSON delivered the judgment of the court, with
                           opinion.
                           Justices Burke and Schostok concurred in the judgment and opinion.




                                              OPINION

¶1           Following a bench trial, defendant, Angel Fernandez, was convicted of two counts of
        resisting or obstructing a peace officer (720 ILCS 5/31-1(a) (West 2008)). The trial court
        sentenced him to concurrent terms of 273 days in jail. Defendant appeals, contending that
        one of the convictions should be reversed because his mere failure to provide the police with
        his name cannot be the basis of an obstruction conviction. We affirm in part and reverse in
        part.
¶2           Pursuant to a bystander’s report of defendant’s trial, the record reflects that on February
        21, 2009, Carpentersville police received a report that a man refused to leave a movie theater.
        Officers Acevedo and Drews responded and found defendant standing outside the theater.
        He was visibly intoxicated and smelled of alcohol. When asked for his name, defendant
        refused to provide it.
¶3           Acevedo informed defendant that he was under arrest and instructed him to place his
        hands on the squad car. He started to comply, but then pushed away from the car and began
        flailing his arms. Despite being told to stop, defendant continued pulling away from the
        officers. The officers finally succeeded in getting defendant into the car.
¶4           Defendant was charged in a two-count complaint. Count I charged him with obstructing
        Acevedo “in that he refused to identify himself (name and date of birth) and failed to provide
        any kind of identification to [O]fficer Acevedo.” Count II charged him with resisting his
        arrest. The trial court found defendant guilty of both charges and imposed concurrent
        sentences of 273 days in jail, which consisted of the time defendant had already served.
        Defendant timely appealed.
¶5           Defendant does not challenge his conviction on count II for resisting his arrest. However,
        he contends that his conviction on count I cannot stand because the State failed to prove him
        guilty of obstructing a peace officer. Defendant does not dispute the circumstances leading


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       to his arrest, but argues that, because he was not legally required to identify himself to
       Acevedo or produce an identification card, he did not obstruct Acevedo from performing his
       duties. “Because the facts are not in dispute, defendant’s guilt is a question of law, which we
       review de novo.” People v. Smith, 191 Ill. 2d 408, 411 (2000) (applying de novo review to
       the issue of whether the defendant committed the offense of armed violence, because the
       facts were not in dispute).
¶6         In People v. Raby, 40 Ill. 2d 392, 399 (1968), the supreme court held that the obstruction
       statute does “not proscribe mere argument with a policeman.” Since then, the great weight
       of authority holds that refusing to provide one’s name or other identifying information is akin
       to “mere argument” and will not support a conviction of obstruction.
¶7         Defendant cites People v. Weathington, 76 Ill. App. 3d 173 (1979). There, the court held
       that it was not a crime to refuse to provide booking information. Id. at 177. The supreme
       court affirmed, holding that “where the defendant merely argued with the officer as to when
       he would answer the booking questions and then, after an indefinite but certainly a brief time,
       did answer the questions, no offense took place.” People v. Weathington, 82 Ill. 2d 183, 187
       (1980). Arguably, the supreme court’s affirmance narrowed the appellate court’s holding
       somewhat. The supreme court seems to have held only that a delay in providing the
       information is tantamount to argument with the police. The court did not consider whether
       the complete refusal to answer would be criminal.
¶8         Later cases, however, have almost uniformly held that an initial failure to provide basic
       identifying information is not criminal. See People v. Ramirez, 151 Ill. App. 3d 731 (1986)
       (defendant not guilty of obstruction for giving police a false name); People v. Hilgenberg,
       223 Ill. App. 3d 286, 289 (1991) (defendants’ refusal to open door for police officer was not
       obstruction; “Mere refusal to answer a police officer, in the absence of a physical act, may
       be deemed tantamount to argument which is not a violation of the statute.”); Williams v.
       Jaglowski, 269 F.3d 778, 782-83 (7th Cir. 2001) (civil rights plaintiff’s refusal to give
       officers identifying information such as date of birth did not give officers probable cause to
       arrest her for obstruction). These cases establish that one cannot be convicted of obstruction
       merely for refusing to identify oneself. Here, the only basis for defendant’s conviction on
       count I was that he obstructed Acevedo by refusing to identify himself and provide
       identification. As a result, his conviction on that count cannot stand.
¶9         In arguing for affirmance, the State relies primarily on Migliore v. County of Winnebago,
       24 Ill. App. 3d 799 (1974). There, the plaintiff refused to provide his name to officers
       attempting to serve him with a subpoena, and he was subsequently arrested. He later sued the
       county, alleging that he was falsely arrested because he had no duty to give the police his
       name. A jury found for the county, and the plaintiff appealed. This court affirmed, holding
       that the police had probable cause to believe that the plaintiff had committed a crime; at the
       very least, the officers’ conduct was not willful and wanton, which plaintiff had to prove
       because the tort immunity statute (Ill. Rev. Stat. 1971, ch. 85, ¶ 2-202) immunized the county
       for all but willful and wanton conduct.
¶ 10       Migliore has been distinguished by many of the above cases in that it involved “concerns
       unique to the service of process context” (Williams, 269 F.3d at 782). Moreover, the opinion


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       does not hold that the plaintiff could properly have been convicted of obstruction, merely that
       it was not willful and wanton conduct for the officers to believe he was obstructing.
¶ 11       The State also cites section 107-14 of the Code of Criminal Procedure of 1963, which
       provides that an officer who makes a Terry stop may “demand the name and address of the
       person and an explanation of his actions.” 725 ILCS 5/107-14 (West 2008). Although the
       State does not completely develop the argument, it seems to suggest that it is incongruous
       to hold that the police have a right to demand a suspect’s name but that the suspect has no
       corresponding duty to answer. However, although the argument has some superficial appeal,
       we note that section 107-14 is found in the Code of Criminal Procedure of 1963, not the
       Criminal Code of 1961, and governs the conduct of police officers. The fact remains that
       there is no corresponding duty in the Criminal Code of 1961 for a suspect to identify himself
       or herself.
¶ 12       By contrast, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 181
       (2004), which defendant discusses, a Nevada statute (Nev. Rev. Stat. § 171.123 (2003))
       specifically required that a person subjected to a Terry stop “shall identify himself.” The
       Supreme Court held that the statute was constitutional. The Illinois statute does not
       specifically require a suspect to identify himself or herself.
¶ 13       Because defendant could not be convicted of obstruction for merely refusing to identify
       himself and refusing to provide identification, we reverse his conviction on count I of the
       complaint. As defendant does not challenge his conviction on count II, we affirm it.

¶ 14      Affirmed in part and reversed in part.




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