Stop and Identify statutes


Stop and Identify statutes

“Stop-and-identify” statutes are laws in the United States that require persons detained under certain circumstances to identify themselves to a police officer. [Although “police officer” is used throughout this article, most “stop-and-identify” laws use the term “peace officer” (or sometimes “law enforcement officer”). In general, peace officers are civil employees charged with preserving the public peace and granted the authority to do so. Peace officers normally include police, sheriffs and their deputies, marshals, and often many other persons; those included vary among the states.]

In "Hiibel v. Sixth Judicial District Court of Nevada", ussc|542|177|2004, the Supreme Court of the United States held that such laws did not violate the Fourth Amendment prohibition on unreasonable searches and seizures or the Fifth Amendment privilege against self-incrimination. The Court’s opinion implied that a person detained could satisfy the requirement of the Nevada law simply by stating his name. [Writing for the Court in "Hiibel v. Sixth Judicial District Court of Nevada", Justice Kennedy stated::“As we understand it, the statute does not require a suspect to give the officer a drivers license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means—a choice, we assume, that the suspect may make—the statute is satisfied and no violation occurs.”]

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", ussc|392|1|1968), or arrest. “Stop-and-identify” laws pertain to detentions.

It is important to note that different obligations apply to drivers of automobiles, who generally are required to present a driver’s license to a police officer upon request.

Consensual

At any time, a police officer may approach a person and ask questions. The objective may simply be a friendly conversation; however, the officer also may suspect involvement in a crime, but lack “specific and articulable facts” [Writing for the Court in "Terry v. Ohio", Chief Justice Warren stated::“And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”] that would justify a detention or arrest, and hope to obtain these facts from the questioning. The person approached is not required to identify herself or answer any other questions, and may leave at any time. [Writing for the Court in "Florida v. Royer", Justice White stated::“The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.”] A person can usually determine whether the interaction is consensual by asking, “Am I free to go?”

Detention

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 it in all jurisdictions, regardless of explicit mention in state or local laws. 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. [In a concurring opinion in "Terry v. Ohio", Justice White stated that a person detained can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” This opinion, in turn, was cited in many later cases, including "Berkemer v. McCarty", ussc|468|420|1984.] However, many states have “stop-and-identify” laws that explicitly require a person detained under the conditions of "Terry" to identify himself to a police officer, and in some cases, provide additional information.

Before "Hiibel", it was unresolved whether a detainee could be arrested and prosecuted for refusing to identify himself. Authority on this issue was split among the federal circuit courts of appeal, [In describing the split authority among the federal appellate court circuits in [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nv&vol=118NevAdvOpNo88&invol=2 "Hiibel v. Dist. Ct."] , the Nevada Supreme Court stated::In "Oliver v. Woods", [209 F.3d 1179, 1190 (10th Cir. 2000)] the Tenth Circuit Court of Appeals upheld a Utah statute that requires individuals to produce identification to an officer during an investigatory stop. However, in "Carey v. Nevada Gaming Control Board" [279 F.3d 873, 881 (9th Cir. 2002)] , the Ninth Circuit Court of Appeals held that NRS 171.123(3) violates the Fourth Amendment because “'the serious intrusion on personal security outweighs the mere possibility that identification [might] provide a link leading to arrest.'”] and the U.S. Supreme Court twice expressly refused to address the question. [In "Hiibel v. Dist. Ct.", the Nevada Supreme Court noted that the U.S. Supreme Court declined to address the issue of identification in"Brown v. Texas", ussc|443|47|1979, at 53 n.3 (“We need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements.”); and "Kolender v. Lawson", ussc|461|352|1983, 361–62 n.10 (holding that a California statute was unconstitutional on vagueness grounds, but refusing to consider whether the statute violated the Fourth Amendment).] 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’s 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.

The validity of requirements that a detainee provide information other than his name remains unresolved as of August 2008.

Arrest

While detention requires only that police have reasonable suspicion that a person is involved in criminal activity, an arrest requires that the officer have probable cause to believe that the person has committed a crime. Although some states require police to inform the person of the intent to make the arrest and the cause for the arrest, [California Penal Code § 841, states, in relevant part,:“The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, ...”] it is not always obvious when a detention becomes an arrest. After making an arrest, police may search a person, his belongings, and his immediate surroundings.

Whether an arrested person must give her name may depend on the jurisdiction in which the arrest occurs. If a person is under arrest and police wish to question her, they are required to inform her of her Fifth-Amendment right to remain silent by giving a Miranda warning. However, "Miranda" does not apply to biographical data necessary to complete booking. [In "Pennsylvania v. Muniz", ussc|496|582|1990, at 601–602, the Court cited the Brief for United States as Amicus Curiae 12 quoting "United States v. Horton", 873 F.2d 180, 181, n. 2 [CA8 1989] ),:... the questions fall within a “routine booking question” exception which exempts from "Miranda"’s coverage questions to secure the “‘biographical data necessary to complete booking or pretrial services.’”] [The Fifth Amendment prohibits only communication that is testimonial, incriminating, and compelled; see "United States v. Hubbell", ussc|530|27|2000, at 34–38. "Hiibel" held that a person's name is not incriminating, and consequently is not protected by the Fifth-Amendment privilege against self-incrimination.] It is not clear whether a “stop-and-identify” law could compel giving one’s name after being arrested; practically, however, police who wished to compel a person to give her name under a “stop-and-identify” law could simply delay formal arrest until after asking the person for her name. Moreover, some states have laws that specifically require an arrested person to give her name and other biographical information, [Texas Penal Code, Title 8, §38.02(a), reads:“A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.”] and some state courts [In "People v. Quiroga" (1993) 16 Cal.App.4th 961, the Court held that refusal to disclose one’s identity following a felony arrest constituted obstructing an officer::“These statutory provisions lead to the conclusion that a refusal to disclose personal identification following arrest for a misdemeanor or infraction cannot constitute a violation of [California] Penal Code section 148.... Section 148 can reasonably be construed as applying to nondisclosure of identity following arrest for felonies, but not minor offenses, if this exception applies to the provisions cited above dealing with arrests for minor offenses.” [16 Cal.App.4th 961, at 970] Similar refusal following arrest for a misdemeanor or infraction did not violate the statute because the Legislature had “established other ways of dealing with such nondisclosure”.] [In "Burkes v. State" (Fla. 2d DCA 1998), Case No. 97-00552, the Court, in affirming the appellant's conviction for violation of § 843.02, Florida Statutes, “Resisting officer without violence to his or her person”, stated::“The most compelling argument we discern for answering this question in the affirmative is that the right to remain silent means just that and has no exceptions. We, nevertheless, conclude that after an individual has been lawfully arrested, he must provide his name or otherwise identify himself when asked by law enforcement officers.”] 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 her name would have little chance of obtaining a prompt release.

States with “stop-and-identify” statutes

There is no federal law requiring that an individual identify himself during a "Terry" stop. "Hiibel" merely established that states and localities have the right to pass laws requiring people to identify themselves under those conditions.

As of 2004 (except where noted), the following states had stop-and-identify laws:

Unless a specific local jurisdiction (city, town, county, township, etc.) has passed a “stop-and-identify” law, persons in states not listed above probably are not obligated to identify themselves when detained by police. However, the ACLU of Northern California cautions: ["Know Your Rights! What to Do if Questioned by Police, FBI, Customs Agents or Immigration Officers". National Lawyers Guild, S.F. Bay Area Chapter; ACLU of Northern California; American Arab Anti-Discrimination Committee. 2004. [http://www.aclunc.org/library/publications/know_your_rights_(english).shtml Available] from the [http://www.aclunc.org ACLU of Northern California] web site.] :“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.”

Obligations under “stop-and-identify” laws

A person’s obligations in a state or local jurisdiction with a “stop-and-identify” may not be obvious. Hiibel’s conviction depended on two different laws:
# Nevada Revised Statutes (NRS) §171.123(3), which requires a person to identify himself, but does not provide a penalty for failure to do so.
# NRS §199.280, which provides a penalty for a person who “... willfully resists, delays or obstructs a public officer in discharging or attempting to discharge any legal duty of his office ...”The Justice Court of Union Township, Nevada, determined that Hiibel’s refusal to identify himself [The majority opinion noted that Hiibel was asked to provide identification, which the Court understood as a request to produce a driver’s license or some other form of written identification, 11 different times; however, it did not indicate that Hiibel was ever asked simply to identify himself.] constituted a violation of NRS §199.280, the offense of which he was convicted.

The wording of both “stop-and-identify” laws and “obstructing” laws varies among the states that have enacted such laws. For example, New York's “stop-and-identify” law [New York's “stop-and-identify” law, NY Consolidated Laws Criminal Procedure (CPL) §140.50(1) reads, in relevant part,:“... a police officer [detaining a suspect] ... may demand of him his name, address and an explanation of his conduct.”] apparently allows a police officer to demand that a suspect identify himself but does not require the suspect to do so, and its “obstructing” law [New York's “obstructing” law, NY Consolidated Laws Penal (PEN) §195.05, reads, in relevant part,:“A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function, or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act ...”] apparently requires physical rather than simply verbal obstruction. [See [http://cryptome.org/rnc-rights.htm When Do You Have to Give Your Name at the RNC Protests?] under External links for an analysis of New York's “stop-and-identify” and “obstructing” laws by Just Law Collective lawyer Katya Komisaruk.] Laws in different states that appear to be nearly identical may be different in effect because of interpretations by state courts. For example, California’s “stop-and-identify” law, Penal Code §647(e) has wording [California Penal Code §647(e) (voided in "Kolender v. Lawson"), reads, in relevant part,:“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: ... (e) who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.”] 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", ussc|461|352|1983. [In voiding California Penal Code §647(e) in "Kolender v. Lawson", Justice O'Connor, writing for the Court, noted that the law:“... provided no standard for determining what a suspect must do to comply with [the law] ”, conferring on police “virtually unrestrained power to arrest and charge persons with a violation.”]

Some “stop-and-identify” laws, such as Colorado’s, [Colorado's “stop-and-identify” law, Colorado Revised Statutes §16-3-103(1), reads, in relevant part,:“A peace officer may ... require him [the person detained] to give his name and address, identification if available, and an explanation of his actions.” ] require a person detained to provide additional information, including an address and written identification if it is available. The wording of the Colorado law is similar to New York’s in that it does not appear to impose a duty on the suspect; 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 [http://www.courts.state.co.us/supct/opinions/2004/04SC362.pdf "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 a police officer, even when actual physical interference was not employed. [Colorado’s “obstructing” law, Colorado Revised Statutes §18-8-104(1), reads, in relevant part,:“A person commits obstructing a peace officer ... when by using or threatening to use violence, force, physical interference, or an obstacle, such person knowingly obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his or her official authority.”] As of 2007, the validity of a law requiring that a person detained do anything more than state her name has not come before the U.S. Supreme Court.

Given the interactions between different laws, the state-to-state variations, and the effects of state court decisions, the safest approach for a person concerned about giving his name to police is to consult a local criminal defense attorney "before" the person is in a situation where he is detained by the police and needs to make a quick decision about whether to comply with a request to identify himself.

Notes

See also

* Hiibel v. Sixth Judicial District Court of Nevada
* Kolender v. Lawson
* Miranda warning
* Miranda v. Arizona
* Terry stop
* Terry v. Ohio
* United States Constitution

External links

* [http://www.aclu.org/racialjustice/racialprofiling/15865pub20040714.html ACLU “Bust Card” "What To Do If You’re Stopped By The Police"]
* [http://www.aclunc.org/library/publications/know_your_rights_(english).shtml ACLU of Northern California "Know Your Rights! What to Do if Questioned by Police, FBI, Customs Agents or Immigration Officers"]
* [http://www.leginfo.ca.gov/calaw.html California Codes]
* [http://www.state.co.us/gov_dir/leg_dir/olls/colorado_revised_statutes.htm Colorado Revised Statutes]
* [http://policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=382&issue_id=92004 “Stop-and-Identify” Laws] from "Police Chief" magazine
* [http://www.leg.state.nv.us/law1.cfm Nevada Revised Statutes]
* [http://public.leginfo.state.ny.us/menuf.cgi New York Legislature] Source for New York State Laws
* [http://www.papersplease.org/hiibel/index2.html The Identity Project: Hiibel]
* [http://cryptome.org/rnc-rights.htm When Do You Have to Give Your Name at the RNC Protests?] An analysis of New York's “stop-and-identify” law


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