"Stop and identify" statutes are laws in the United States that authorize police to detain
persons and request such persons to identify themselves, and arrest them if they do not.
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights
that 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 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, 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's 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's 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, detention), 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?"
Detention 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 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’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.
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.
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.
Neither is Illinois, since the Illinois Supreme Court Decision in People v. Fernandez, 2011
IL App 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.
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.
By contrast, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 181, which
defendant discusses, a Nevada statute) 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.
Because defendant could not be convicted of obstruction for merely refusing to identify
himself and refusing to provide identification, 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 Five states’ laws explicitly impose an obligation
to provide identifying information.
Fourteen 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 12 states, police "may demand" identifying information;
In Colorado, police "may require" identifying information of a person.
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, or written identification if available.
Ohio does not require the person's intended destination.
Ohio requires only Name, Address, and Date Of Birth.
Date of birth is NOT required if the age of the person is an element to the crime that
the person is reasonably suspected of.
Arizona’s law, apparently written specifically to codify the holding in Hiibel, requires
a person’s "true full name".
Nevada’s law, which requires a person to "identify himself or herself", apparently
requires only that the person state his or her name.
Texas’s law requires a person to provide their name, residence address and date of
birth if lawfully arrested and asked by police.
In five states, 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 explicitly impose a criminal penalty for noncompliance with the obligation
to identify oneself.
Virginia makes it a nonjailable misdemeanor to refuse to identify oneself to a conservator
of the peace when one is at the scene of a breach of the peace witnessed by that conservator.
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 Hiibel’s refusal to identify himself constituted a violation of Nevada’s
"obstructing" law.
A similar conclusion regarding the interaction between Utah’s "stop and identify" and "obstructing"
laws was reached in Oliver v. Woods.
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’s "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,
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.
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’s "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 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’s "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’s "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 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 and People v. Loudermilk 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 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.
See also Brown v. Texas
Hiibel v. Sixth Judicial District Court of Nevada
Kolender v. Lawson Miranda v. Arizona
Terry stop Terry v. Ohio
United States Constitution Loitering
List of national identity card policies by country for policies in other countries
Notes
External links 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.
Jogger arrested for failure to identify from Tytuniversity