Puneet Varma (Editor)

Stop and identify statutes

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Stop and identify statutes

"Stop and identify" statutes are statutory laws in the United States that authorize police to legally obtain the identification of someone whom they reasonably suspect has committed a crime. If there is no reasonable suspicion that a crime has been committed, is being committed, or is about to be committed, an individual is not required to provide identification, even in "Stop and ID" states. In Utah v. Strieff (2016), the U.S. Supreme Court ruled that the officer's stop of Strieff and demand for identification was unlawful under Utah state law, but that the evidence collected pursuant to the stop was admissible due to the determination that Strieff was subject to a pre-existing arrest warrant. Therefore, the pre-existing warrant "attenuated" the unlawful stop-and-identify.

Contents

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. Terry v. Ohio, 392 U.S. 1 (1968) established that it is constitutionally permissible for police to temporarily detain a person based on reasonable suspicion that a crime has been committed, and to conduct a search for weapons based on a reasonable belief that the person is armed. The question whether it is constitutionally permissible for the police to demand that a detainee provide his or her name was considered by the U.S. Supreme Court in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), which held that the name disclosure did not violate the Fourth Amendment prohibition on unreasonable searches and seizures. The Hiibel Court also held that, because Hiibel had no reasonable belief that his name would be used to incriminate him, the name disclosure did not violate the Fifth Amendment right against self-incrimination; however, the Court left open the possibility that Fifth Amendment right might apply in situations where there was a reasonable belief that giving a name could be incriminating. The Court accepted the Nevada supreme court interpretation of the Nevada statute that a detained person could satisfy the Nevada law by simply stating his name. The Court did not rule on whether particular identification cards could be required, though it did mention one state law requiring "credible and reliable" identification had been struck down for vagueness.

Police–citizen encounters

In the United States, interactions between police and citizens fall into three general categories: consensual ("contact" or "conversation"), detention (often called a Terry stop, after Terry v. Ohio, 392 U.S. 1 (1968)), or arrest. "Stop and identify" laws pertain to detentions.

Different obligations apply to drivers of motor vehicles, who generally are required by state vehicle codes to present a driver’s license to police upon request.

Consensual

At any time, police may approach a person and ask questions. The objective may simply be a friendly conversation; however, the police also may suspect involvement in a crime, but lack "specific and articulable facts" that would justify a detention or arrest, and hope to obtain these facts from the questioning. The person approached is not required to identify himself or answer any other questions, and may leave at any time. Police are not usually required to tell a person that he is free to decline to answer questions and go about his business; however, a person can usually determine whether the interaction is consensual by asking, "Am I free to go?"

Reasonable Suspicion

A person is detained when circumstances are such that a reasonable person would believe he is not free to leave.

Police may briefly detain a person if they have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Many state laws explicitly grant this authority. In Terry v. Ohio, the U.S. Supreme Court established that police may conduct a limited search for weapons (known as a "frisk") if they reasonably suspect that the person to be detained may be armed and dangerous.

Police may question a person detained in a Terry stop, but in general, the detainee is not required to answer. However, many states have "stop and identify" laws that explicitly require a person detained under the conditions of Terry to identify himself to police, and in some cases, provide additional information.

Before Hiibel, it was unresolved whether a detainee could be arrested and prosecuted for refusing to disclose his name. Authority on this issue was split among the federal circuit courts of appeal, and the U.S. Supreme Court twice expressly refused to address the question. In Hiibel, the Court held, in a 5–4 decision, that a Nevada "stop and identify" law did not violate the United States Constitution. The Court opinion implied that a detainee was not required to produce written identification, but could satisfy the requirement merely by stating his name. Some "stop and identify" laws do not require that a detainee identify himself, but allow refusal to do so to be considered along with other factors in determining whether there is probable cause to arrest. In some states, providing a false name is an offense.

As of February 2011, the Supreme Court has not addressed the validity of requirements that a detainee provide information other than his name, however some states such as Arizona have specifically codified that a detained person is not required to provide any information aside from their full name.

Arrest

A detention requires only that police have reasonable suspicion that a person is involved in criminal activity. However, to make an arrest, an officer must have probable cause to believe that the person has committed a crime. Some states require police to inform the person of the intent to make the arrest and the cause for the arrest. But it is not always obvious when a detention becomes an arrest. After making an arrest, police may search a person, his or her belongings, and his or her immediate surroundings.

Whether an arrested person must identify himself may depend on the jurisdiction in which the arrest occurs. If a person is under arrest and police wish to question him, they are required to inform the person of his Fifth-Amendment right to remain silent by giving a Miranda warning. However, Miranda does not apply to biographical data necessary to complete booking. It is not clear whether a "stop and identify" law could compel giving one’s name after being arrested, although some states have laws that specifically require an arrested person to give his name and other biographical information, and some state courts have held that refusal to give one’s name constitutes obstructing a public officer. As a practical matter, an arrested person who refused to give his name would have little chance of obtaining a prompt release.

Obligation to identify

While Wisconsin statutes allow law enforcement officers to "demand" ID, there is no statutory requirement to provide them ID nor is there a penalty for refusing to, hence Wisconsin is not a must ID state (Henes v. Morrissey). Annotations for Wisconsin §968.24, however, state "The principles of Terry permit a state to require a suspect to disclose his or her name in the course of a Terry stop and allow imposing criminal penalties for failing to do so", citing Hiibel as authority. Hiibel held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment if the statute first required reasonable and articulable suspicion of criminal involvement. The Wisconsin Supreme Court held in Henes v. Morrissey that "A crime is made up of two parts: proscribed conduct and a prescribed penalty. "The former without the latter is no crime. ... In this case no statute penalizes a refusal to identify oneself to a law enforcement officer, and no penalty is set forth in the statute for refusing to identify oneself. This statute is part of Chapter 968 entitled "Commencement of Criminal Proceedings. By its very terms sec. 968.24 empowers a law enforcement officer to stop and question "in the vicinity where the person was stopped." The statute does not authorize a law enforcement officer to make an arrest."

Neither is Illinois, since the Illinois Second District Appellate Court Decision in People v. Fernandez, 2011 IL App (2d) 100473, which specifically states 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.

By contrast, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 181 (2004), 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.

As of February 2011, there is no U.S. federal law requiring that an individual identify himself during a Terry stop, but Hiibel held that states may enact such laws, provided the law requires the officer to have reasonable and articulable suspicion of criminal involvement, and 24 states have done so. The opinion in Hiibel implied that persons detained by police in jurisdictions with constitutional "stop and identify" laws listed are obligated to identify themselves, and that persons detained in other jurisdictions are not. The issue may not be that simple, however, for several reasons:

  • The wording of "stop and identify" laws varies considerably from state to state.
  • Noncompliance with a "stop and identify" law that does not explicitly impose a penalty may constitute violation of another law, such as one to the effect of "resisting, obstructing, or delaying a peace officer".
  • State courts have made varying interpretations of both "stop and identify" and "obstructing" laws.
  • Variations in "stop and identify" laws

  • Four states’ laws (Arizona, Indiana, Louisiana, and Nevada) explicitly impose an obligation to provide identifying information.
  • Fifteen states grant police authority to ask questions, with varying wording, but do not explicitly impose an obligation to respond:
  • In Montana, police "may request" identifying information;
  • In Ohio, identifying information may be required "when requested"; an obligation exists only when the police suspect a person is committing, has committed, or is about to commit a criminal offense, is witness to a felony offense, or is witness to an attempt or conspiracy to commit a felony offense;
  • In 12 states (Alabama, Delaware, Illinois, Kansas, Missouri, Nebraska, New Hampshire, New York, North Dakota, Rhode Island, Utah, Wisconsin), police "may demand" identifying information. Of note, though, in New Hampshire for example (RSA 594:2), statutory language authorizing a 'demand' for identity does not establish a legal requirement to provide documentation of identity (ID), or even a requirement to respond in the first place. Further, a law enforcement officer is authorized to make such 'demand' only of individuals for "whom he has reason to suspect is committing, has committed or is about to commit a crime."
  • Identifying information varies, but typically includes
  • Name, address, and an explanation of the person’s actions;
  • In some cases it also includes the person’s intended destination, the person’s date of birth (Indiana and Ohio), or written identification if available (Colorado). Ohio does not require the person's intended destination. Ohio requires only Name, Address, or Date Of Birth. Date of birth is NOT required if the age of the person is an element to the crime (such as underage drinking, curfew violation, etc...) that the person is reasonably suspected of. Indiana requires either name, address, and date of birth, or driver's license, if on the person's possession, and only applies if the person was stopped for an infraction or ordinance violation.
  • Arizona law, apparently written specifically to codify the holding in Hiibel, requires a person’s "true full name".
  • Nevada law, which requires a person to "identify himself or herself", apparently requires only that the person state his or her name.
  • Texas law requires a person to provide their name, residence address and date of birth if lawfully arrested and asked by police. (A detained person or witness of a crime is not required to provide any identifying information, however it is a crime for a detained person or witness to give a false name.)
  • In four states (Arkansas, Florida, Georgia, and Rhode Island), failure to identify oneself is one factor to be considered in a decision to arrest. In all but Rhode Island, the consideration arises in the context of loitering or prowling.
  • Seven states (Arizona, Florida, Indiana, Louisiana, New Mexico, Ohio, and Vermont) explicitly impose a criminal penalty for noncompliance with the obligation to identify oneself.
  • As of February 2011, the validity of a law requiring that a person detained provide anything more than stating his or her name has not come before the U.S. Supreme Court.

    Interaction with other laws

    In states whose "stop and identify laws" do not directly impose penalties, a lawful arrest must be for violation of some other law, such as one to the effect of "resisting, obstructing, or delaying a peace officer". For example, the Nevada "stop and identify" law challenged in Hiibel did not impose a penalty on a person who refused to comply, but the Justice Court of Union Township, Nevada, determined that Hiibels refusal to identify himself constituted a violation of Nevada "obstructing" law. A similar conclusion regarding the interaction between Utah "stop and identify" and "obstructing" laws was reached in Oliver v. Woods (10th Cir. 2000).

    Interpretation by courts

    "Stop and identify" laws in different states that appear to be nearly identical may be different in effect because of interpretations by state courts. For example, California "stop and identify" law, Penal Code §647(e) had wording similar to the Nevada law upheld in Hiibel, but a California appellate court, in People v. Solomon (1973), 33 Cal.App.3d 429 construed the law to require "credible and reliable" identification that carries a "reasonable assurance" of its authenticity. Using this construction, the U.S. Supreme Court held the law to be void for vagueness in Kolender v. Lawson, 461 U.S. 352 (1983).

    Some courts have recognized a distinction authorizing police to demand identifying information and specifically imposing an obligation of a suspect to respond. Other courts have apparently interpreted demand to impose an obligation on the detainee to comply.

    Wording and interpretation by state courts of "obstructing" laws also varies; for example, New York "obstructing" law apparently requires physical rather than simply verbal obstruction; likewise, a violation of the Colorado "obstructing" law appears to require use or threat of use of physical force. However, the Colorado Supreme Court held in Dempsey v. People, No. 04SC362 (2005) (PDF) that refusing to provide identification was an element in the "totality of the circumstances" that could constitute obstructing an officer, even when actual physical interference was not employed. Utah "obstructing" law does not require a physical act, but merely a failure to follow a "lawful order . . . necessary to effect the . . . detention"; a divided court in Oliver v. Woods concluded that failure to present identification constituted a violation of that law.

    It is not universally agreed that, absent a "stop and identify law", there is no obligation for a detainee to identify himself. For example, as the U.S. Supreme Court noted in Hiibel, California "stop and identify" statute was voided in Kolender v. Lawson. But in People v. Long, decided four years after Kolender, a California appellate court found no constitutional impropriety in a police officer’s demand for written identification from a detainee. The issue before the Long court was a request for suppression of evidence uncovered in a search of the defendant’s wallet, so the issue of refusal to present identification was not directly addressed; however, the author of the Long opinion had apparently concluded in a 1980 case that failure to identify oneself did not provide a basis for arrest. Nonetheless, some cite Long in maintaining that refusal to present written identification constitutes obstructing an officer. Others disagree, and maintain that persons detained by police in California cannot be compelled to identify themselves.

    Some courts, e.g., State v. Flynn (Wis. 1979) and People v. Loudermilk (Calif. 1987) have held that police may perform a search for written identification if a suspect refuses to provide it; a later California decision, People v. Garcia (2006) strongly disagreed.

    Recommendations of legal-aid organizations

    Some legal organizations, such as the National Lawyers Guild and the ACLU of Northern California, recommend to either remain silent or to identify oneself whether or not a jurisdiction has a "stop and identify" law:

    And in any state, police do not always follow the law, and refusing to give your name may make them suspicious and lead to your arrest, so use your judgment. If you fear that your name may be incriminating, you can claim the right to remain silent, and if you are arrested, this may help you later. Giving a false name could be a crime.

    In a more recent pamphlet, the ACLU of Northern California elaborated on this further, recommending that a person detained by police should:

    . . . give your name and the information on your drivers’ license. If you don’t, you may be arrested, even though the arrest may be illegal.

    Other countries

    Many countries allow police to demand identification and arrest people who do not carry any. Normally these countries provide all residents with national identity cards, which have the identity information the police would want to know, including citizenship. Foreign visitors need to have their passport available to show at all times. In some cases national identity cards from certain other countries are accepted.

    In Portugal it is compulsory to carry the state ID card at all times. This card named Cartão de Cidadão - Citizen Card is an electronic card which includes biometric information, id number, social security number, fiscal information, place of birth, etc. Police can only ask for the ID card in public or a place open to public and only if is there is a reasonable suspicion the person committed a crime. A certified copy of the ID card can be presented in such situations. If a citizen does not carry the ID card or its certified copy, the police will escort the person to the police department to remain detained until clear identification can be obtained.

    References

    Stop and identify statutes Wikipedia


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