"Stop and identify" statutes are laws currently in use in the US states of Alabama, Arkansas, Arizona, Colorado, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Missouri (Kansas City only), Montana, Nebraska, New Hampshire, New Mexico, Nevada, New York, North Dakota, Ohio, Rhode Island, Utah, Vermont, and Wisconsin, authorizing policeAlthough 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, sheriffs' deputies, marshals, constables, and often many other persons; those included vary among the states. to lawfully order people whom they reasonably suspect of committing a crime to state their name.
If there is no reasonable suspicion that a person has committed a crime, is committing a crime, or is about to commit a crime, the person is not required to identify himself or herself, even in these states. 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.
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 "specific and articulable facts" that establish reasonable suspicion that a crime has been or will be committed. An officer may conduct a patdown for weapons based on a reasonable suspicion that the person is armed and poses a threat to the officer or others. 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.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.
Justice Kennedy continued:
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.
Writing for the Nevada Supreme Court in Hiibel v. Dist. Ct., Chief Justice Young said:
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.
Some "stop and identify" statutes that are unclear about how people must identify themselves violate suspects' due process rights through the void for vagueness doctrine. For instance, in Kolender v. Lawson (1983), the U.S. Supreme 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 or her name if he or she articulated a reasonable belief that giving the name could be incriminating.In upholding Hiibel's conviction, the U.S. Supreme 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. But the Court did leave open the possibility of different circumstances:
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.
The Nevada "stop-and-identify" law at issue in Hiibel allows police officers to detain any person encountered 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 that the officer have a reasonable and articulable suspicion of criminal involvement, and that the person detained "identify himself," but the law does not compel the person to answer any other questions by the officer. The Nevada Supreme Court interpreted "identify" under the state's law to mean merely stating one's name.
As of April 2008, 23 other states had similar laws. Additional states (including Arizona, Texas, South Dakota and Oregon) have such laws just for motorists, which penalize the failure to present a driver license during a traffic stop.
Encounters between law enforcement and the 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, ), or arrest. "Stop and identify" laws pertain to detentions.
Consensual
At any time, police may approach a person and ask questions. Police may suspect involvement in a crime, but may lack knowledge of any "specific and articulable facts"Writing for the Court in Terry v. Ohio, Chief Justice Warren stated, And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. that would justify a detention or arrest, and hope to obtain these facts from the questioning. The person approached is not required to identify themselves or answer any other questions, and may leave at any time.Writing for the Court in Florida v. Royer , Justice White stated:
The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.
Police are not required to tell a person that he or she is free to decline to answer questions and go about his or her business;Writing for the Court in United States v. Mendenhall, 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. however, a person can usually determine whether the interaction is consensual by asking, "Am I free to go?".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, , 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."
Reasonable suspicion
A person is detained when circumstances are such that a reasonable person would believe the person is not free to leave.Writing for the Court in United States v. Mendenhall, 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.
Police may briefly detain a person if the police have a 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 the police reasonably suspect that the person to be detained may be armed and dangerous.
While the police officer must have reasonable suspicion to detain a person, the officer has no obligation to inform the person what that suspicion was. The only time the officer would have to articulate the suspicion is when the person was arrested, and the person later 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.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, . However, many states have "stop and identify" laws that explicitly require a person detained under the conditions of Terry to identify themselves to police, and in some cases, to provide additional information.
Before Hiibel, whether a detainee could be arrested and prosecuted for refusing to disclose their name was an unresolved issue. Authority on this issue was split among the United States courts of appeals,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. and the U.S. Supreme Court twice expressly refused to address the question.In Hiibel v. Dist. Ct., the Nevada Supreme Court noted that the U.S. Supreme Court declined to address the issue of identification in Brown v. Texas, , 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, , 361–62 n.10 (holding that a California statute was unconstitutional on vagueness grounds, but refusing to consider whether the statute violated the Fourth Amendment). In Hiibel, the Court opinion implied that a detainee was not required to produce written identification, but could satisfy the requirement merely by stating the detainee's name. Some "stop and identify" laws do not require that a detainee identify himself or herself, but allow the refusal to do so to be considered along with other factors in determining whether there is probable cause to arrest.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,