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Case calls into question limits of Fifth Amendment

Winn-Dixie managers suspected Mark Hovik had shoplifted before, so on May 10 they asked him to leave the supermarket.

Instead, Hovik lay down in one of the aisles. When Pasco County sheriff's deputies arrived, Hovik refused to give his name.

They asked again. He refused.

Hovik, who has a history of mental troubles, finally answered. That answer earned him a month in jail.

"Well," he said, "I guess I'm Cinderella's wife."

Deputies arrested him for obstructing a police officer by disguise.

Although it may seem silly, the case of Cinderella's wife could soon be a federal one. Literally.

The U.S. Supreme Court recently has grappled with the limits of the Fifth Amendment. Does it mean only that police can't force defendants to confess to crimes? Or that defendants can't be forced to speak to police at all, even if it's only to give their name?

"The question to which people can avoid giving basic identifying information to the police has never been resolved," said Christopher Slobogin, a University of Florida law professor.

Hovik's case, should it get that far, "could establish new law in terms of the federal Constitution," Slobogin said.

Hovik, 49, of Hudson has an arrest record for offenses ranging from shoplifting to domestic violence. He did not respond to a message left at his address seeking comment for this story.

It would take some powerful legal maneuvering to catapult Hovik's case all the way to Washington. As it stands now, Hovik's court-appointed attorney, Robert Attridge, successfully argued to have the charges dismissed because of the Fifth Amendment issue.

The case was decided in county court, but the State Attorney's Office has filed an appeal and will argue it before a circuit court judge.

For Michael Halkitis, an assistant state attorney, the court's decision to dismiss the case threatens police and the public.

Deputies will never be able to issue warnings to trespassers or effectively arrest lawbreakers if they can't find out the name of the person they're trying to arrest, Halkitis said.

"To say it's trivial is to misunderstand everything about this case," Halkitis said. "It seems to me that this is clear cut. How the heck are you ever going to issue a trespass warning if they don't have to give their name?"

The State Attorney's Office appealed the case, Halkitis said, because deputies know about the court's decision and might feel obligated to let suspects off unless they provided a name.

That's a problem for the police, and not for Hovik, said Attridge. The federal and state constitutions, he said, clearly say that people cannot be forced to speak up and give police incriminating information about themselves.

As the argument goes, determining a suspect's name is the first step police take in completing a criminal investigation of that person. So forcing someone to identify himself is, in effect, asking him to testify against himself.

In some cases, identifying yourself to police can provide critical evidence. For example, if a convict escapes from prison, authorities would have to prove that he was spotted outside the prison walls.

A police officer who forced that convict to give his name as he stood outside the prison would essentially be compelling him to admit the crime.

The type of crime shouldn't matter, Attridge said.

"I don't care what the officer was investigating him for," Attridge said. "It could have been the most heinous crime of the century. He doesn't have to give any information at all."

The U.S. Supreme Court, in the landmark case Terry vs. Ohio, ruled that police have a right to stop and frisk people who are suspected of a crime.

In a later case, the court decided the arrest of a suspect for failing to give his name was unconstitutional. The justices limited their decision to the defendant's arrest, however, and did not consider the statute that police arrested him under.

In Florida, appellate judges hearing a Seminole County case ruled that an order forcing a defendant to give his name was unconstitutional.

But that case, Halkitis said, has different facts than Hovik's, which means the courts could reach a different conclusion.

Attridge views the way deputies treated Hovik as an abuse of power and the state's decision to appeal as a waste of money. Even if Hovik is eventually found guilty, Attridge said, a judge will probably limit Hovik's sentence to the time he has served in jail.

"He spent 30 days in jail. I don't see why they're not satisfied with that," Attridge said. "To me, this is a colossal waste of taxpayer money."

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