NMA Email Newsletter: Issue #21

Periodically we receive questions regarding what kinds of information a person is required to give a police officer upon demand. The review and discussion by NMA member Ted Levitt (included below) is a general overview of the topic, in particular when a person must identify themself.

Requirement to identify self
Prepared by Ted Levitt

The most recent and president setting case is Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, June 21, 2004. Underlying issue in this case is Nevada has a “stop-and-identify” law that allows a peace officer to detain any person he encounters “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 person to “identify himself”, but does not compel the person to answer any other questions put to him by the officer. As of April 2008, 23 other states (see list at end) have similar laws.

Hiibel case history:

On the evening of May 21, 2000, the sheriff’s department of Humboldt County, Nevada received a report that a man had assaulted a woman in a red and silver GMC truck on Grass Valley Road. The responding deputy found a truck parked on the side of the road. A man was smoking a cigarette beside the truck, and a young woman (later identified as his adult daughter) was sitting inside it. The deputy observed skid marks in the gravel behind the vehicle, leading him to believe the vehicle had come to a sudden stop. The deputy explained to the man that there had been a report of a fight between a man and a woman, and asked the man if he had any identification on him. The man (Hiibel) protested that he had no reason to provide identification, and became ill-tempered when the deputy continued to press him for his identification. The man asked the deputy what crime he was being accused of, as the deputy continued his request for identification, stating that he was “conducting an investigation”. The man persisted in his refusal to provide identification, asking instead to be handcuffed and taken to jail. The deputy continued to ask for the man’s identification, stating that the man would face arrest if he did not cooperate and provide identification. The man responded that he would not cooperate because he had not committed any crime. He then turned around and was arrested. Hiibel was charged with “willfully resisting, delaying, or obstructing a public officer in discharging or attempting to discharge any legal duty of his office”. He was convicted in the Justice Court and fined $250.00. Hiibel appealed to the Sixth Judicial District Court, which affirmed the conviction. He then appealed to the Nevada Supreme Court, arguing that the requirement that he identify himself to any police officer upon request violated the Fourth Amendment prohibition on unreasonable searches and seizures and his Fifth Amendment right against self-incrimination. The Nevada Supreme Court rejected these arguments, and Hiibel asked the U.S. Supreme Court to hear the case.

In a 5-4 decision the U.S. Supreme Court held: 1) States and localities have the right to pass laws requiring people to identify themselves to police officer when stopped and questioned during a criminal investigation. 2) That the Nevada “stop-and-identify” law did not violate either the Fourth or Fifth Amendment of the U.S. 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. Several states “stop-and-identify” laws do not require the detainee to identify, but allow refusal to do so to be considered along with other factors in determining whether there is probable cause to arrest. The validity of the requirement that a detainee provide information other than his name remains unresolved as of August 2008.

There is no federal law requiring that an individual identify himself during a Terry Stop. Hiibel merely establishes that states and localities have the right to pass laws requiring people to identify themselves when properly stopped and questioned by police in the course of a criminal investigation. Further, the Court took note that some state “obstructing” laws may also be used as a means to legally obtain a person’s identity.

The Hiibel decision is based partly on Terry v. Ohio, 392 U.S.1 (1968) where the Court established in all jurisdiction, regardless of explicit mention in state or local laws, that 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. 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. Another distinction the Court took note of was in the Terry case the officer observed Terry and two other men standing on a street corner and acting suspiciously while in Hiibel he was next to his truck and a call about a possible assault in the truck had been received. (Both cases deal with possible criminal activity and not a simple misdemeanor traffic stop)

Stop-and-identify laws have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave a “good account” of themselves; this practice, in turn, derived from the common-law power of any person to arrest suspicious persons and detain them until they gave an account” of themselves. In Papachristou v. Jacksonville, 405 U.S. 156, the Court held that a traditional vagrancy law was void for vagueness because of its “broad scope and imprecise terms denied proper notice to potential offenders and permitted police officers to exercise unfettered discretion in the enforcement of the law”. In Brown v. Texas, 443 U.S. 47 (1979) the Court struck down Texas’s stop-and-identify law as violating the Fourth Amendment because it allowed police officers to stop individuals without “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity.” And in Kolender v. Lawson, 461 U.S. 352, (1983) the Court struck down a California stop-and-identify law that required a suspect to provide “credible and reliable identification” upon request. The words “credible and reliable” were vague because they “provided no standard for determining what a suspect must do to comply with the law, resulting in virtually unrestrained power to arrest and charge persons with a violation.

While the U.S. Supreme Court has limited police “search and seizure” and “stop-and-identify” laws states have other means to force motorists to identify themselves. The primary tool states use to coerce motorists to give up information is upon a legal traffic stop the motorists is “required” to show proof of a valid drivers license, and in some states proof of liability insurance and the vehicles registration. The First Amendment of the U.S. Constitution reads; “Congress shall make no laws ……, or the right of the people peaceably to assemble,…”. The Court has ruled (Corfield v. Coryell, 6 Fed. Cas. 546 (1823), Paul v. Virginia, 75 U.S. 168 (1869) and Saenz v. Roe, 526 U.S. 489 (1999)) that the First Amendment guarantees citizen the right to move about freely from place to place within this country, and its states, without undue government interference or restraint. In Kent v. Dulles, 357 U.S. 116 (1958) Justice William O. Douglas wrote, “The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. If that “liberty” is to be regulated, it must be pursuant to the law-making function of Congress….Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country,…may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.” (Note; freedom of movement is not viewed as synonymous with freedom to drive, by the courts.)

Most states also have mandatory motor vehicle liability insurance regulations that require a legally stopped motorist to show proof of liability insurance as well as a valid driver’s license. Even other states require that a motorist show the vehicles registration along with a valid driver’s license and proof of liability insurance. Further, many states have mandatory yearly vehicle safety inspection requirements that the police use as an excuse to stop motorists. All states have yearly vehicle license plate renewal requirements that police use as an excuse to stop motorists. Commercial trucks and their drivers have even more government requirements. The government has also been given another tool to use as a means to require individuals to identify themselves. That is under the use of the Patriot Act which will not be discussed here.

The 24 States that had stop-and-identify laws as of April 2008:

Alabama — Ala. Code, Section 15-5-30
Arizona  — Ari. Rev. Stat. Tit. 13, Ch. 24-12
Arkansas — Ark. Code Ann. Section 5-71-213(a)(1)
Colorado — Colo. Rev. Stat., Section 16-3-103(1)
Delaware — Del. Code Ann., Tit. 11, Section 1902
Florida — Fla. Stat., Section 856.021(2)
Georgia —  Ga. Code Ann., Section 16-11-36(b)
Illinois —  Ill. Comp. Stat., ch. 725, Section 5/107-14
Indiana —  Indiana Code, Section 34-28-5-3.5
Kansas — Kan. Stat. Ann. Section 22-2402(1)
Louisiana — La. Code Crim. Proc. Ann. Art. 215.1(a)
Missouri — Mo. Rev. Stat., Section 84.710(2)
Montana —  Mont. Code Ann. Section 46-5-401
Nebraska — Neb. Rev. Stat., Section 29-829
Nevada — Nev. Rev. Stat., Section 171.123
New Hampshire — N.H. Rev. Stat. Ann., Section 594.2
New Mexico — N.M. Stat. Ann., Section 30-22-3
New York —  N.Y. Crim. Proc. Law (CPL)
North Dakota — N.D. Cent. Code, Section 29-29-21
Ohio — Ohio Rev. Code, Section 2921.29
Rhode Island — R.I. Gen. Laws, Section 12-7-1
Utah — Utah Code Ann., Section 77-7-15
Vermont — Vt. Stat. Ann., Tit. 24, Section 1983
Wisconsin —  Wis. Stat., Section 968.24

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