Stop & Identify: Can an officer arrest a suspect for failing to provide ID?
By Laura Scarry
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Numerous states have "stop-and-identify" statutes in their criminal code. While these statutes vary somewhat in their approach, all permit an officer to ask for or require a suspect to disclose his or her identity when conducting a Terry stop (see "Terry v. Ohio," p. 70). That's all fine and good, but what happens when the suspect refuses to provide their identity either verbally or by providing a driver's license or other form of identification? Can an officer place an individual under arrest for simply refusing to comply with the officer's request?
In an opinion decided last year in Hiibel v. Sixth Judicial District Court of Nevada, Humbolt County, that particular question was addressed head on. In Hiibel, the United States Supreme Court held that a police officer's arrest of a suspect, after the suspect refused to identify himself during a Terry stop in violation of Nevada law, did not violate the Fourth Amendment.
Hiibel: The Facts
The facts of the Hiibel case are anything but dramatic. On May 21, 2000, the Humbolt County (Nev.) Sheriff's Department received a telephone report of an assault occurring on the side of a highway. A deputy sheriff was assigned the call. Upon arrival, the officer observed a young woman sitting inside a truck parked on the side of the road and a man standing alongside it. The officer approached the man, now known as Larry Hiibel, and explained he was investigating a report of a fight.
The officer then asked Hiibel, who appeared to be intoxicated, if he had "any identification on [him]." Hiibel refused to comply with the officer's request and asked why it was necessary for the officer to see his identification while insisting he had done nothing wrong. The officer responded that he was conducting an investigation and it was necessary to see some identification to find out who Hiibel was and what he was doing there.
Over the course of several minutes, the officer asked Hiibel for his identification 11 times and was refused each time. After warning Hiibel he would be arrested if he continued to refuse to provide his identification, the officer placed him under arrest and charged him with obstructing a police officer.
At the criminal trial, the state reasoned Hiibel had obstructed the officer's efforts to carry out his duties in conducting an investigative stop pursuant to a Nevada statute that allows a police officer to detain a person under Terry, and any person so detained "shall identify himself, but may not be compelled to answer any other inquiry of the peace officer." Hiibel was subsequently convicted and fined $250.
Hiibel appealed the conviction, and the case eventually reached the U.S. Supreme Court, where in a 5-4 decision, it held that the Nevada stop-and-identify statute did not violate Hiibel's rights under the Fourth Amendment (or the Fifth Amendment either).
The court observed that asking questions is an essential part of police investigations. It further stated that asking a question relating to one's identity or a request for identification by the police does not, by itself, violate the Fourth Amendment: "[Q]uestions concerning a suspect's identity are a routine and accepted part of many Terry stops."
The court stated that obtaining a suspect's name during a Terry stop serves important government interests, such as possibly identifying whether the suspect is wanted for another offense or has a record of violence or mental illness. On the flip side, knowledge of one's identity may help clear the suspect and, therefore, direct the police investigation elsewhere.
While the court found that police officers are entitled to ask a suspect about his identity, it admitted that it had never before decided whether a suspect's failure to answer those questions could give rise to an arrest and criminal prosecution. Nonetheless, the Court found the principles of Terry permit a state to require a suspect provide ID during the stop. First, the Court concluded, after balancing the intrusion of the individual's Fourth Amendment interests against the promotion of legitimate government interests, the statute's contribution to efficient law enforcement outweighed any interference with Hiibel's right to privacy.
Second, the Court found that the request for Hiibel's identity was immediately related to the purpose, rationale and practical demands of a Terry stop. Under Terry, an officer's actions must be limited in scope and duration. For example, the detention cannot continue for an excessive amount of time and can only allow for minimally intrusive investigative techniques. In sum, the Court found that the Nevada statute met the standards enunciated under Terry and its progeny, and is consistent with the Fourth Amendment's prohibitions against unreasonable searches and seizures.
Finally, addressing Hiibel's concerns that the statute allows police officers to arrest persons just because they look suspicious, the Court noted that under Terry, the stop must be justified at its inception and limited in scope and duration. In other words, an officer may not arrest an individual for merely failing to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. That is, if a police officer stops a person for no apparent reason and then asks the person for his name, the officer cannot cite the stop-and-identify statute as his basis for a subsequent arrest because there was no lawful basis for the stop in the first place.
However, in the Hiibel case, the Court found the request for identification was related in scope to the circumstances that justified the stop. The officer's request was a commonsense inquiry in responding to a call reporting domestic violence, and not simply an effort to arrest a suspect for failing to provide identification after the officer could find no sufficient evidence of a crime.
In sum, Hiibel holds a state may criminalize a refusal to produce identification as long as the detention is predicated on a valid Terry stop (i.e., reasonable suspicion). In other words, police officers do not violate the Fourth Amendment when they arrest an individual after the individual refuses to provide identification during a lawful detention pursuant to their state's stop-and-identify statute. Certainly, it should come as no surprise that the remaining state legislatures might enact similar stop-and-identify statutes. No doubt such enactments provide law enforcement with another important tool to ensure officer safety during brief and seemingly innocuous encounters.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
Hiibel v. Sixth Judicial District Court, 124 S.Ct. 2541, 2546 (2004), identifies at least 20 states with such statutes.
Terry v. Ohio, 392 U.S. 1 (1968).
125 S.Ct. 2451 (2004).
125 S.Ct. at 2455.
NRS § 171.123.
124 S.Ct. at 2458.
Laura L. Scarry is a partner in the law firm of Myers, Miller & Krauskopf in Chicago, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986-1992.
Sidebar: Terry v. Ohio
In Terry v. Ohio, 392 U.S. 1 (1968), a police officer with 39 years experience had patrolled the vicinity of a downtown metropolitan area for shoplifters and pickpockets for 30 years. The officer watched a man (Terry) walk past the window of a jewelry store several times and then walk over to several men. It appeared to the officer that the men were planning to rob the store, so he stopped them and asked questions. During the encounter, the officer frisked Terry and found a weapon.
The U.S. Supreme Court held that the officer had reasonable suspicion to stop and question the suspects based on the officer's patrol experience in the downtown area. The rule that evolved from this opinion states that officers may pat down an individual for weapons during a brief encounter based on reasonable suspicion if the officer reasonably fears a weapon exists on or around the individual.