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“Stop and Identify” statutes are laws in the United States that require persons detained under certain circumstances to identify themselves to a peace officer.

In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 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 simply by stating his name.[1]

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[edit] Types of police interactions

In the United States, police interactions fall into three general categories: consensual (“contact”), detention (often called a Terry stop, after Terry v. Ohio, 392 U.S. 1 (1968)), or arrest. “Stop-and-identify” laws apply only 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 peace officer upon request.

[edit] Contact

At any time, police may initiate a conversation with a person and ask questions. In these circumstances, the person may refuse to answer any questions and may leave at any time. A person can usually determine whether she is free to go simply by asking, “Am I free to go?”

[edit] Detention

Terry v. Ohio established the authority of police to briefly detain a person if they have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Although it was well established that an officer could ask a suspect to identify himself in the course of a Terry stop, prior to Hiibel it had been an open question whether the suspect could be arrested and prosecuted for refusal to answer.[2] Several states have laws that explicitly require a person detained under the conditions of Terry to identify himself to a peace officer. Before Hiibel, authority on this issue was split among the federal circuit courts of appeal,[3] and the U.S. Supreme Court twice expressly refused to address the question.[4] In Hiibel, the U.S. Supreme 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 person was not required to produce written identification, but could satisfy the requirement merely by stating his or her name.

[edit] Arrest

While detention requires only that a peace officer have reasonable suspicion that a person is involved in criminal activity, an arrest requires that the officer have probable cause that the person has committed a crime. Once a person is under arrest, her right to remain silent is protected by Fifth Amendment. If police wish to question the person, they are required to inform her of this right by giving a Miranda warning. However, 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's holding that giving one's name is not incriminating implies that withholding one's name would not fall within the Fifth Amendment privilege against self-incrimination. As a practical matter, an arrested person who refused to give her name would have little chance of obtaining a prompt release.

[edit] 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:

Alabama Ala. Code §15-5-30
Arizona Ari. Rev. Stat. Tit. 13, Ch. 24-12 (enacted 2005)
Arkansas Ark. Code Ann. §5-71-213(a)(1)
Colorado Colo. Rev. Stat. §16-3-103(1)
Delaware Del. Code Ann., Tit. 11, §§1902(a), 1321(6)
Florida Fla. Stat. §856.021(2)
Georgia Ga. Code Ann. §16-11-36(b)
Illinois Ill. Comp. Stat., ch. 725, §5/107-14
Kansas Kan. Stat. Ann. §22-2402(1)
Louisiana La. Code Crim. Proc. Ann., Art. 215.1(A)
Missouri Mo. Rev. Stat. §84.710(2)
Montana Mont. Code Ann. §46-5-401(2)(a)
Nebraska Neb. Rev. Stat. §29-829
Nevada Nev. Rev. Stat. §171.123 (3)
New Hampshire N. H. Rev. Stat. Ann. §§594:2
New Mexico N. M. Stat. Ann. §30-22-3
New York N. Y. Crim. Proc. Law §140.50(1)
North Dakota N.D. Cent. Code §29-29-21
Ohio Ohio Rev. Code §2921.29
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

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:[5]

“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.”

[edit] 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:

  1. 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.
  2. 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[6] 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[7] apparently allows a peace officer to demand that a suspect identify himself but does not require the suspect to do so, and its “obstructing” law[8] apparently requires physical rather than simply verbal obstruction.[9] 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[10] 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).[11]

Some “stop-and-identify” laws, such as Colorado's,[12] 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 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 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 peace officer, even when actual physical interference was not employed.[13] 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 a peace officer is to consult a local criminal defense attorney before the person is in a situation where he is detained by police and needs to make a quick decision about whether to comply with a request to identify himself.

[edit] Notes

  1. ^ 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 driver's 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.”
  2. ^ 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).
  3. ^ 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.'”
  4. ^ 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).
  5. ^ 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. Available from the ACLU of Northern California web site.
  6. ^ 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.
  7. ^ 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.”
  8. ^ 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 ...”
  9. ^ See 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.
  10. ^ 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.”
  11. ^ 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.”
  12. ^ 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.”
  13. ^ 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.”

[edit] See also

[edit] External links