Stop and Identify statutes
Encyclopedia
“Stop and identify” statutes are laws in the United States
that allow police to detain persons reasonably suspected of involvement in a crime and require persons so detained to identify themselves to the police.
The authority to detain on reasonable suspicion was established in Terry v. Ohio
, , and does not depend on the existence of a law that specifically authorizes such a detention, so that authority exists in all jurisdictions in the United States. The identification requirement was considered by the U.S. Supreme Court
in Hiibel v. Sixth Judicial District Court of Nevada
, , which held that the identification requirement 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 identification requirement 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 understood the Nevada statute to mean that a detained person could satisfy the Nevada law by simply stating his name.
and citizens fall into three general categories: consensual (“contact” or “conversation”), detention (often called a Terry stop
, after Terry v. Ohio
), or arrest
. “Stop and identify” laws pertain to detentions.
Different obligations apply to drivers of automobiles, who generally are required by state vehicle codes to present a driver’s license to police upon request.
that would justify a detention or arrest, and hope to obtain these facts from the questioning. The person approached is not required to identify themself or answer any other questions, and may leave at any time.
Police are not usually required to tell a person that she is free to decline to answer questions and go about her business;
however, a person can usually determine whether the interaction is consensual by asking, “Am I free to go?”
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.
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 identify himself. 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.
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,
it is not always obvious when a detention becomes an arrest. After making an arrest, police may search a person, her belongings, and her immediate surroundings.
Whether an arrested person must identify herself 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 the person 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.
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 her 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 her name would have little chance of obtaining a prompt release.
As of February 2011, there is no U.S. federal law requiring that an individual identify herself during a Terry stop, but Hiibel held that states may enact such laws,
and 24 states have done so.
The opinion in Hiibel implied that persons detained by police in jurisdictions with “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:
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.
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 (10th Cir. 2000).
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
, .
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 (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’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 (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.
and the ACLU of Northern California,
caution against refusing to identify oneself whether or not a jurisdiction has a “stop and identify” law:
In a more recent pamphlet, the ACLU of Northern California elaborated on this further, recommending that a person detained by police should:
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
that allow police to detain persons reasonably suspected of involvement in a crime and require persons so detained to identify themselves to the police.
The authority to detain on reasonable suspicion was established in Terry v. Ohio
Terry v. Ohio
Terry v. Ohio, 392 U.S. 1 , was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police...
, , and does not depend on the existence of a law that specifically authorizes such a detention, so that authority exists in all jurisdictions in the United States. The identification requirement was considered by the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in Hiibel v. Sixth Judicial District Court of Nevada
Hiibel v. Sixth Judicial District Court of Nevada
Hiibel v. Sixth Judicial District Court of Nevada, , held that statutes requiring suspects to identify themselves during police investigations did not violate the Fourth Amendment. Under the rubric of Terry v...
, , which held that the identification requirement did not violate the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
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 identification requirement did not violate the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
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 understood the Nevada statute to mean that a detained person could satisfy the Nevada law by simply stating his name.
Police–citizen encounters
In the United States, interactions between policePolice
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
and citizens fall into three general categories: consensual (“contact” or “conversation”), detention (often called a Terry stop
Terry stop
In the United States, a Terry stop is a brief detention of a person bypoliceon reasonable suspicion of involvement in criminal activity but short of probable cause to arrest.The name derives from Terry v. Ohio, 392 U.S...
, after Terry v. Ohio
Terry v. Ohio
Terry v. Ohio, 392 U.S. 1 , was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police...
), or arrest
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
. “Stop and identify” laws pertain to detentions.
Different obligations apply to drivers of automobiles, 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 themself or answer any other questions, and may leave at any time.
Police are not usually required to tell a person that she is free to decline to answer questions and go about her 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
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
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
Frisking
Frisking is a search of a person's outer clothing wherein a person runs his or her hands along the outer garments to detect any concealed weapons or contraband.-Stop and frisk:...
”) if they reasonably suspect that the person to be detained may be armed and dangerous.
Police may question a person detained in a Terry stop, but in general, the detainee is not required to answer.
However, many states have “stop and identify” laws that explicitly require a person detained under the conditions of Terry to identify himself to police, and in some cases, provide additional information.
Before Hiibel
Hiibel v. Sixth Judicial District Court of Nevada
Hiibel v. Sixth Judicial District Court of Nevada, , held that statutes requiring suspects to identify themselves during police investigations did not violate the Fourth Amendment. Under the rubric of Terry v...
, 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,
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
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. 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
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 causeProbable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
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,
it is not always obvious when a detention becomes an arrest. After making an arrest, police may search a person, her belongings, and her immediate surroundings.
Whether an arrested person must identify herself 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 the person of her Fifth-Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
right to remain silent by giving a Miranda warning
Miranda warning
The Miranda warning is a warning given by police in the United States to criminal suspects in police custody before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. In Miranda v...
. 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 her 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 her 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) |
| Arkansas | Ark. Code Ann. §5-71-213(a)(1) (loitering) |
| Colorado | Colo. Rev. Stat. §16-3-103(1) |
| Delaware | Del. Code Ann., Tit. 11, §§1902, 1321(6) |
| Florida | Fla. Stat. §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) |
| Missouri | 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 (CPL) §140.50 (1) |
| 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 |
As of February 2011, there is no U.S. federal law requiring that an individual identify herself during a Terry stop, but Hiibel held that states may enact such laws,
and 24 states have done so.
The opinion in Hiibel implied that persons detained by police in jurisdictions with “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, Nevada, and Ohio) 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 13 states (Alabama, Delaware, Illinois, Kansas, Louisiana, Missouri, Nebraska, New Hampshire, New York, North Dakota, Rhode Island, Utah, Wisconsin), 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 (Indiana and Ohio), or written identification if available (Colorado).
- 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.
- In five states (Arkansas, Florida, Georgia, New Hampshire, 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 loiteringLoiteringLoitering is the act of remaining in a particular public place for a protracted time. Under certain circumstances, it is illegal in various jurisdictions.-Prohibition and history:Loitering may be prohibited by local governments in several countries...
or prowling. - Six states (Arizona, Florida, Indiana, 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 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 (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’s “stop and identify” law, Penal Code §647(e) had wordingsimilar 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
Kolender v. Lawson
Kolender v. Lawson, , is a United States Supreme Court case concerning the constitutionality of laws that allow police to demand that “loiterers” and “wanderers” provide identification.- Facts :...
, .
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 (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’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 (Wis. 1979)
and People v. Loudermilk (Calif. 1987)
have held that police may perform a search for written identification if a suspect refuses to provide it;
a later California decision, People v. Garcia (2006) strongly disagreed.
Recommendations of legal-aid organizations
Some legal organizations, such as the National Lawyers GuildNational Lawyers Guild
The National Lawyers Guild is an advocacy group in the United States "dedicated to the need for basic and progressive change in the structure of our political and economic system . ....
and the ACLU of Northern California,
caution against refusing 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
- Hiibel v. Sixth Judicial District Court of NevadaHiibel v. Sixth Judicial District Court of NevadaHiibel v. Sixth Judicial District Court of Nevada, , held that statutes requiring suspects to identify themselves during police investigations did not violate the Fourth Amendment. Under the rubric of Terry v...
- Kolender v. LawsonKolender v. LawsonKolender v. Lawson, , is a United States Supreme Court case concerning the constitutionality of laws that allow police to demand that “loiterers” and “wanderers” provide identification.- Facts :...
- Miranda v. ArizonaMiranda v. ArizonaMiranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...
- Terry stopTerry stopIn the United States, a Terry stop is a brief detention of a person bypoliceon reasonable suspicion of involvement in criminal activity but short of probable cause to arrest.The name derives from Terry v. Ohio, 392 U.S...
- Terry v. OhioTerry v. OhioTerry v. Ohio, 392 U.S. 1 , was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police...
- United States ConstitutionUnited States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
- LoiteringLoiteringLoitering is the act of remaining in a particular public place for a protracted time. Under certain circumstances, it is illegal in various jurisdictions.-Prohibition and history:Loitering may be prohibited by local governments in several countries...
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.