Stop and identify statutes
"Stop and identify" statutes are laws in several U.S. states that authorize police to lawfully order people whom they reasonably suspect of a crime to state their name. If there is not 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 these states.
The Fourth Amendment prohibits unreasonable searches and seizures and requires warrants to be supported by probable cause. In Terry v. Ohio (1968), the U.S. Supreme Court established that it is constitutional for police to temporarily detain a person based on an articulable reasonable suspicion that a crime has been committed, and then to conduct a patdown for weapons based on a reasonable belief that the person is armed. Then in Hiibel v. Sixth Judicial District Court of Nevada (2004), the Supreme Court held that statutes requiring suspects to disclose their names during a valid Terry stop did not violate the Fourth Amendment.
However, some "stop and identify" statutes that are unclear about how people must identify themselves violate suspects' due process through the void for vagueness doctrine. For instance, in Kolender v. Lawson (1983), the Court invalidated a California law requiring "credible and reliable" identification as overly vague. The court also held that the Fifth Amendment could allow a suspect to refuse to give his name if he has a reasonable belief that giving his name could be incriminating.
The Nevada "stop-and-identify" law at issue in Hiibel allows police officers to detain any person they encounter under circumstances which reasonably indicate that "the person has committed, is committing or is about to commit a crime"; the person may be detained only to "ascertain his identity and the suspicious circumstances surrounding his presence abroad." In turn, the law requires the officer to have reasonable and articulable suspicion of criminal involvement, and that the person detained "identify himself", but does not compel the person to answer any other questions put to him by the officer. The Nevada Supreme Court interpreted "identify" under the state’s law to mean merely stating one’s name.
Encounters between law enforcement and the general public
In the United States, interactions between police and others 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, but only after an officer identifies themself and their department and give all reasons why a stop is necessary. No driver in the US is obligated to ID without this articulation.
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 herself or answer any other questions, and may leave at any time. Police are not required to tell a person that he or she is free to decline to answer questions and go about their business; however, a person can usually determine whether the interaction is consensual by asking, "Am I free to go?"
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.
Note that while the police officer must have reasonable suspicion to detain a person, they have no obligation to inform the person what that suspicion was. The only time the officer would have to articulate the suspicion is if the person was arrested, and challenged the validity of the stop in court.
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 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.
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.
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
|States with "stop and identify" laws|
|Alabama||Ala. Code §15-5-30|
|Arizona||Ari. Rev. Stat. Tit. 13, §2412 (enacted 2005) & Tit. 28, §1595|
|Arkansas||Ark. Code Ann. § 5-71-213 - Loitering|
|Colorado||Colo. Rev. Stat. §16-3-103(1)|
|Delaware||Del. Code Ann., Tit. 11, §§1902, 1321(6)|
|Florida||Fla. Stat. §901.151 (Stop and Frisk Law); §856.021(2) (loitering and prowling)|
|Georgia||Ga. Code Ann. §16-11-36(b) (loitering)|
|Illinois||Ill. Comp. Stat., ch. 725, §5/107-14|
|Indiana||Indiana Code §34-28-5-3.5|
|Kansas||Kan. Stat. Ann. §22-2402(1)|
|Louisiana||La. Code Crim. Proc. Ann., Art. 215.1(A); La. Rev. Stat. 14:108(B)(1)(c)|
|Missouri (Kansas City Only)||Mo. Rev. Stat. §84.710(2)|
|Montana||Mont. Code Ann. §46-5-401|
|Nebraska||Neb. Rev. Stat. §29-829|
|Nevada||Nev. Rev. Stat. §171.123|
|New Hampshire||N.H. Rev. Stat. Ann. §594:2, §644:6|
|New Mexico||N.M. Stat. Ann. §30-22-3|
|New York||N.Y. Crim. Proc. Law Laws of New York → CPL §140.50 (requires suspicion of crime)|
|North Carolina||State v Friend + N.C. Gen.Stat. § 14–223|
|North Dakota||N.D. Cent. Code §29-29-21 (PDF)|
|Ohio||Ohio Rev. Code §2921.29 (enacted 2006)|
|Rhode Island||R.I. Gen. Laws §12-7-1|
|Utah||Utah Code Ann. §77-7-15|
|Vermont||Vt. Stat. Ann., Tit. 24, §1983|
|Wisconsin||Wis. Stat. §968.24|
States not listed do not have a requirement to show Identification to law enforcement officers. Some states listed have "Stop and ID" laws which may or may not require someone to identify themselves during an investigative detention.
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, 194 Wis.2d 338, 353-54 (1995). 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."(These quotes comes from the dissenting opinion but is in line with the majority opinion.) Additionally Henes v. Morrissey held that a detained person not providing their name isn't on its own a violation of 946.41 Resisting or obstructing officer as the act of not identifying one's self isn't a false statement with intent to mislead the officer in the performance of his or her duty.
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.
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 violent felony offense, or is witness to an attempt or conspiracy to commit a violent 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.) Texas P.C. 38.02
- 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 whom they reasonably suspect of having committed a crime. 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.
In the case of Utah v. Strieff (2016), the U.S. Supreme Court ruled that an officer's stop of Edward Strieff and his demand for identification from Strieff 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.
In North Carolina, State v. White interpreted North Carolina's "Resisting officers" statute to apply to suspects who fail to identify themselves to police officers. Conversely, West Virginia's courts decided that their resisting arrest statute, did not include individuals who refused to identify themselves.
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.
Many countries allow police to demand identification and arrest people who do not carry any (or refuse to produce so). 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.
For example, 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 etc. Police can only ask for the ID card in public or a place open to public and only if 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.
In other countries like Australia, Canada, and New Zealand, police generally have no power to demand identification unless they have a statutory power to do so. For example, these countries have laws that require those driving to produce their licence (or state their name, address, etc.) when stopped by police. Police may also require people to identify themselves if they have reasonable grounds to believe that they have committed a crime.
- Brown v. Texas
- Hiibel v. Sixth Judicial District Court of Nevada
- Kolender v. Lawson
- Miranda v. Arizona
- Terry stop
- Although police and police officer are used throughout this article, most "stop and identify" laws use the term peace officer (or sometimes law enforcement officer). In general, peace officers are state civil officers charged with preserving the public peace and granted the authority to do so. Peace officers normally include police officers, sheriffs and sheriffs' deputies, marshals, constables, and often many other persons; those included vary among the states.
- 542 U.S. 177 (2004)
Writing for the Court in Hiibel v. Sixth Judicial District Court of Nevada, Justice Kennedy stated,
- Here the Nevada statute is narrower and more precise. The statute in Kolender had been interpreted to require a suspect to give the officer "credible and reliable" identification. In contrast, the Nevada Supreme Court has interpreted NRS §171.123(3) to require only that a suspect disclose his name. — 542 U.S. 177, 184–185
- 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. — 542 U.S. at 185
- The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists. — 118 Nev. 868 at 875
- 461 U.S. 352
In upholding Hiibel's conviction, the Court noted,
- In this case petitioner's refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him.... As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer's business. — 542 U.S. at 190
- Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here. — 542 U.S. at 191
- "Texas Transportation Code Section 521.025 - License to Be Carried and Exhibited on Demand; Criminal Penalty". texas.public.law. Retrieved 20 September 2020.
- "ORS 807.570 - Failure to carry or present license - 2020 Oregon Revised Statutes". www.oregonlaws.org. Retrieved 20 September 2020.
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. — 392 U.S. at 21
Writing for the Court in Florida v. Royer 460 U.S. 491 (1983), 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. — 460 U.S. at 497–498
Writing for the Court in United States v. Mendenhall, 446 U.S. 544 (1980) Justice Stewart stated,
- Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed. — 446 U.S. at 555
The ACLU publication Know Your Rights When Encountering Law Enforcement states,
- You can say, "I do not want to talk to you" and walk away calmly. Or, if you do not feel comfortable doing that, you can ask if you are free to go. If the answer is yes, you can consider just walking away. Do not run from the officer. If the officer says you are not under arrest, but you are not free to go, then you are being detained.
- If the encounter is consensual, a person approached need not actually leave to terminate the encounter, but may simply ignore police. In Michigan v. Chesternut, 486 U.S. 567 (1988), Justice Blackmun explained the Court's holding that Chesternut had not been detained, stating that the police conduct "would not have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." — 486 U.S. at 569
Writing for the Court in United States v. Mendenhall, 446 U.S. 544 (1980) Justice Stewart stated:
- We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. — 446 U.S. at 554
- 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, 468 U.S. 420 (1984).
In describing the split authority among the federal appellate court circuits in 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.' "
- 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, 443 U.S. 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, 461 U.S. 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).
Texas does not require a detainee to identify himself unless he has been lawfully arrested, but does make it a crime to provide a false name. Texas Penal Code § 38.02 reads, in relevant part,
- (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
- (1) lawfully arrested the person;
- (2) lawfully detained the person; or
- (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
- (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
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 . . .
In Pennsylvania v. Muniz, 496 U.S. 582 (1990), 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 coverage questions to secure the "'biographical data necessary to complete booking or pretrial services.'" — 496 U.S. at 601–602
- The Fifth Amendment prohibits only communication that is testimonial, incriminating, and compelled; see United States v. Hubbell, 530 U.S. 27 (2000), at 34–38. Hiibel held that, in the circumstances of the case, a person's name is not incriminating, and consequently is not protected by the Fifth-Amendment privilege against self-incrimination. — 530 U.S. at 34–38
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.
In People v. Quiroga (1993) 16 Cal.App.4th 961, the Court held that refusal to disclose one's identity following a felony arrest constitutes 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, 970
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.
- The Hiibel Court held, "The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop." — 542 U.S. at 187
- The opinion in Hiibel included a list of 21 states with "stop and identify" laws. For some reason, the Indiana law was not included in the list; the Arizona and Ohio laws have been enacted since Hiibel was decided. The Texas law only applies to arrested persons.
- "Constitutional" means that the law requires the officer to have reasonable and articulable suspicion of criminal involvement. See Hiibel.
- Writing for the Court in Hiibel, Justice Kennedy stated, "the source of the legal obligation [to identify oneself] arises from Nevada state law". — 542 U.S. at 187
- In Hiibel, Justice Kennedy stated, "In other States, a suspect may decline to identify himself without penalty.″ — 542 U.S. at 183
- "Lawriter - ORC - 2921.29 Failure to disclose personal information". State of Ohio Codes.
- Assembly, Indiana General. "Indiana Code 2016 - Indiana General Assembly, 2016 Session".
- The 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.
- NRS §199.280 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"
- California stop-and-identify law in Penal Code §647(e) was repealed several years after 1983 and the sub-sections re-lettered, so the current Penal Code §647(e) is what used to be Penal Code §647(f). Also, do not confuse Penal Code §647(e) with Penal Code §647e.
- (voided in Kolender v. Lawson), read, 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.
- California Penal Code Section 647(e): A Constitutional Analysis of the Law of Vagrancy, Hastings Law Journal, 1980, Volume 32, Issue 1, Article 9 https://repository.uchastings.edu/cgi/viewcontent.cgi?article=2682&context=hastings_law_journal
In voiding California Penal Code §647(e) in Kolender v. Lawson, Justice O'Connor, writing for the Court, noted that
- Section 647(e), as presently drafted and as construed by the state courts, contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a "credible and reliable" identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute. — 461 U.S. at 358
Writing for the Court in People v. Love, 318 Ill.App.3d 534 (2000), rev'd on other grounds, People v. Love, No. 90806 (2002), Justice O'Brien stated,
- The State next argues that the officer's order was a justifiable means of compelling defendant to state her name pursuant to section 107-14, which provides that an officer making a Terry stop may "demand the name and address of the person and an explanation of his actions." 725 ILCS 5/107-14 (West 1992). However, while section 107-14 states that an officer may "demand" the defendant's name, it does not provide that the officer may compel a response. Further, the United States Supreme Court has stated in the context of a Terry stop: "[T]he officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond." (Emphasis added.) Berkemer v. McCarty, 468 U.S. 420, 438, 82 L. Ed. 2d 317, 334, 104 S. Ct. 3138, 3150 (1984).
In Cady v. Sheahan (7th Cir. 2006), the Court stated,
- In Hiibel, the Supreme Court held that states are permitted to statutorily authorize the demand for identification during a Terry stop, and to require compliance with such demand. 542 U.S. at 188, 124 S.Ct. 2451. Cady's identity was relevant to the purpose of the stop and the officers did not exceed the scope of the stop by requesting identification. [footnotes omitted]
Writing for the Court in Oliver v. Woods, 209 F.3d 1179 (10th Cir. 2000), Judge Brorby stated,
- Section 76-8-305 does not require the use of force; mere refusal to perform any act required by a lawful order necessary to effect the detention is sufficient to constitute a violation of § 76-8-305. Moreover, an individual who merely refuses to refrain from performing any act that would impede the arrest or detention violates this section. . . . Thus, Officer Woods gave a lawful order when he told Mr. Oliver to present identification and to remain in the parking lot while he conducted the investigation. By refusing to present identification, Mr. Oliver refused to perform an act required by lawful order, necessary to effect the detention.
New Yorks "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
In People v. Offen, 408 N.Y.S.2d 914, 96 Misc.2d 147 (1978), Judge Hertz stated,
- An essential element of the crime of obstructing governmental administration, to be charged in an information, must be an act of either (1) intimidation or (2) physical force or interference or (3) an independently unlawful act.
- Plainly, ignoring an officer's request for identification is not a crime, nor does that act supply any such element. Though it is clear that such conduct risks pursuit and arrest, no crime has been charged here. — 96 Misc.2d at 150
- See When Do You Have to Give Your Name at the RNC Protests? under External links for an analysis of New York "stop and identify" and "obstructing" laws by Just Cause Law Collective lawyer Katya Komisaruk.
Colorado "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.
Utah "obstructing" law, Utah Code §76-8-305, reads as follows:
- Interference with arresting officer.
- A person is guilty of a class B misdemeanor if he has knowledge, or by the exercise of reasonable care should have knowledge, that a peace officer is seeking to effect a lawful arrest or detention of that person or another and interferes with the arrest or detention by:
- (1) use of force or any weapon;
- (2) the arrested person's refusal to perform any act required by lawful order:
- (a) necessary to effect the arrest or detention; and
- (b) made by a peace officer involved in the arrest or detention; or
- (3) the arrested person's or another person's refusal to refrain from performing any act that would impede the arrest or detention.
In People v. Long (1987) 189 Cal.App.3d 77, Justice Agliano wrote,
- The voluntary display of identification is a routine experience for most of us. Measured against the obvious and substantial need for police recording the identity of a person suspected of having committed a crime, we find reasonable the minimal intrusion involved here in requiring the production of identification. In addition, defendant's oral statement of his name was suspect when he insisted he had no identification while appearing to carry a wallet and, in addition, he seemed intoxicated. — 189 Cal.App.3d at 88
In In re Gregory S. (1980), 112 Cal.App.3d 764, Justice Agliano wrote
- We find no authority to support the court's legal conclusion that a person who merely refuses to identify himself or to answer questions in a context similar to that before us thereby violates Penal Code section 148 or otherwise furnishes ground for arrest.
- The Legislature has required citizen self-identification in prescribed situations. Vehicle Code section 40302 calls for the production of a driver's license or identification upon arrest for a violation of that code; Vehicle Code section 12951 requires production of a driver's license by the driver of a motor vehicle upon the request of an officer. Penal Code section 647, subdivision (e) imposes a duty to identify oneself when such person loiters or wanders upon the streets or from place to place without apparent reason or business, and the surrounding circumstances reasonably indicate that the public safety demands identification. Section 647, subdivision (e) was held valid in People v. Solomon (1973) 33 Cal.App.3d 429 [108 Cal.Rptr. 867], in which strong consideration was given to the legislatively declared governmental purpose to be served by identification when the conditions described in the statute exist. (Id, at p. 436; see also California v. Byers (1971) 402 U.S. 424 [29 L.Ed.2d 9, 91 S.Ct. 1535].) None of the statutory conditions requiring identification existed in this case. — 112 Cal.App.3d at 779
- Shortly after Hiibel was decided, the Alameda County (California) District Attorney's Office provided a case analysis (PDF) maintaining that refusal to identify oneself and provide written identification (if available) constitutes a violation of Penal Code §148(a)(1), resisting, delaying, or obstructing an officer. The topic is further discussed in the 2010 edition of Point of View.
The California Peace Officers Legal Sourcebook ("CPOLS"; written by the office of the California Attorney General) maintains that failure to identify oneself does not constitute a violation of California Penal Code §148(a)(1), resisting, delaying, or obstructing a peace officer:
- Unlike Nevada and other states, California does not have a statute mandating that a detainee identify himself, and that obligation cannot be read into Penal Code section 148. . . . Hiibel does not provide a means of arresting someone for failing or refusing to identify himself. (Revision 176, 9/15/2014, p. 2.14a; page last revised 1/10)
In State v. Flynn (1979) 92 Wis.2d 427 [285 N.W.2d 710, 718], cert. den. 449 U.S. 846, the Wisconsin Supreme Court held that the Terry limitation of a search "to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." (392 U.S. at 29) was limited to the specific circumstances of Terry. Chief Justice Beilfuss wrote,
- It is clear from the language itself that the court's holding in Terry was limited to the precise situation before it. The court did not say that the sole justification for any search on less than probable cause is the protection of the police officer and others, but that that was the sole justification of the search in the situation then before it. The situation before us is significantly different.
In People v. Loudermilk (1987) 195 Cal.App.3d 996, Justice Low stated,
- Neither case [Kolender v. Lawson or Brown v. Texas] could be interpreted to prevent a police officer from demanding that a Terry suspect produce proof of identification. Further, nothing in those or other cases cited by defendant prevents an officer from seizing a wallet found during a lawful patdown search after that suspect has lied to the officer that he had no identification. — 195 Cal.App.3d at 1003
- We must emphasize that we do not hold that a suspect may be detained and searched merely because he either refused to identify himself or refused to produce proof of identification. Nor do we hold that each time an officer conducts a Terry stop he may immediately conduct a search for identification. The rule we announce does not provide officers with unfettered discretion and does not open citizens to harassment. — 195 Cal.App.3d at 1004
In People v. Garcia (2006) 145 Cal.App.4th 782, Justice Yegan, noting State v. Flynn (Wis. 1979) and State v. Wilcox (N.J. 1981), stated,
- We need not look to other jurisdictions to decide this case. We would have to indulge in legal legerdemain to justify a patdown search for identification. In fact, it would require a rewriting of Terry v. Ohio, supra, which we could not and would not undertake even if we were so inclined. Here, the record is devoid of any concern that appellant was armed and dangerous. The sole reason for the patdown was to gather evidence of identification.
- A fair reading of Terry v. Ohio, and its reference to the lower court opinion in State v. Terry show that the "frisk" allowable upon a proper showing was " '. . . only a "frisk" for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest. Such a search is controlled by requirements of the Fourth Amendment, and probable cause is essential.' " (Terry v. Ohio, supra, 392 U.S. at p. 16, fn. 12 [20 L. Ed. 2d at p. 903, fn. 12.) Our own Supreme Court has unanimously so held. (People v. Lawler (1973) 9 Cal.3d 156, 161 [pat-down search "only" for weapons].) If stare decisis means anything (and it does) and if the word only means only (and it does), the trial court was required to grant this suppression motion as a matter of law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) — 145 Cal.App.4th at 788
- "What is a Stop and Identify Statute? [A Study of 50 States]". Healing Law. 2020-09-22. Retrieved 2020-09-23.
- "Know Your Rights! What to Do if Questioned by Police, FBI, Customs Agents or Immigration Officers" (pdf). National Lawyers Guild, S.F. Bay Area Chapter; ACLU of Northern California; American Arab Anti-Discrimination Committee. August 2004. Retrieved 2012-02-07.
- "Your Rights and the Police". ACLU of Northern California. Retrieved 2014-07-10.
- www.view.pt), VIEW. (firstname.lastname@example.org -. "Um cidadão traz habitualmente consigo apenas uma fotocópia do cartão de cidadão ou do bilhete de identidade. Se a autoridade lhe exigir a identificação, pode estar descansado? - Direitos e Deveres dos Cidadãos".
- "Policing Act 2008". New Zealand Legislation. 2018-10-16. Retrieved 2020-06-16.
- "A Citizen's Guide to Rights When Dealing With Police (in Canada)". Stephen van Egmond. Retrieved 2020-06-16.
- ACLU "Bust Card" What To Do If You’re Stopped By The Police
- ACLU Know Your Rights When Encountering Law Enforcement
- 10 Rules for Dealing with Police from FlexYourRights.org, a 501(c)(3) educational nonprofit organization.
- California Codes
- Colorado Revised Statutes
- Nevada Revised Statutes
- New York Legislature Source for New York State Laws
- Stop-and-Identify Laws from Police Chief magazine
- Suspects Who Refuse to Identify Themselves from Police Chief magazine
- The Identity Project: Hiibel
- When Do You Have to Give Your Name at the RNC Protests? An analysis of New York's "stop and identify" law.