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Requiring passenger to provide identification was lawful

A recent appellate case takes a look at the question: Can police require vehicle passenger identification?

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Because the law was not clearly established, the deputies in this case were entitled to qualified immunity.

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JOHNSON V. NOCCO, 2023 WL 6386527 (11th Cir. 2023)

Officers often encounter situations where obtaining vehicle passengers’ identification would be a helpful, and sometimes even vital, safety measure. The rules on demanding identification are tricky and depend on state law in most situations. In the following case, we’ll explore the rules and review what we know is permissible during a traffic stop.

Three deputies stopped a vehicle towing a motorcycle on a trailer because the trailer’s license tag was obscured. The deputies were accompanied by a film crew from the A&E television show “Live PD” (the traffic stop was captured by the film crew. Watch the video recording below).

Deputy James Dunn approached the front passenger side of the vehicle and obtained the driver’s license and registration. There were two passengers in the vehicle. Dunn asked Marques Johnson, the front seat passenger, if he had identification. Johnson replied he was “merely a passenger in the vehicle and was not required to identify himself.” Dunn told Johnson that Florida law required him to identify himself and that, if Johnson did not identify himself, Dunn would “pull him out and he would go to jail for resisting.” The driver, Johnson’s father, then told deputies his son’s name.

Dunn asked a police service dog handler to conduct a sniff of the vehicle’s exterior. He ordered Johnson out of the vehicle and Johnson complied. Dunn told another deputy, “I am going to take him in no matter what because he’s resisting me.” He arrested Johnson for “resisting without violence.” The charges against Johnson were dismissed by the state court. Johnson sued in federal court, alleging false arrest, violation of due process, and constitutional claims against Sheriff Chris Nocco for negligent hiring, retention, training and supervision.

The defendants asked the trial court to dismiss Johnson’s claim pursuant to the doctrine of qualified immunity. The trial court denied the request; the defendants appealed.

The appellate court divided its analysis into two parts: First, whether the Fourth Amendment bars an officer from asking a passenger to identify himself unless the officer has reason to suspect the passenger had committed, was in the process of committing or was likely to commit a criminal offense. Second, at the time Johnson was stopped, the law was clearly established that an officer could not ask a passenger to identify himself absent reasonable suspicion.

Let’s begin with acknowledging what law was clearly established at the time of the stop. First, the deputies were authorized (under federal law) to require Johnson to get out of the vehicle. In 1977, the United States Supreme Court laid down a bright-line rule that an officer may always require a driver to get out of a lawfully stopped vehicle (Pennsylvania v. Mimms, 434 U.S. 106 (1977)). The Court balanced the privacy interests of the driver and the safety interests of the officer in reaching this conclusion. The officer need not state any particular suspicion or fear to require the driver to get out of the vehicle. 20 years later, the Court extended its ruling to all passengers in a lawfully stopped car in Maryland v. Wilson (519 U.S. 408 (1997)). However, a handful of states have rejected the Mimms/Wilson rule on state constitutional grounds.

Conversely, courts have relied on Maryland v. Wilson to rule that officers may require the driver and passengers to remain inside the car. “It follows from Maryland v. Wilson that a police officer has the power to reasonably control the situation by requiring a passenger to remain in a vehicle during a traffic stop, particularly where, as here, the officer is alone and feels threatened” (Rogala v. District of Columbia, 161 F.3d 44 (D.C. Cir. 1998)). Officers may also require the driver and passengers to keep their hands in plain sight during the traffic stop.

Second, Johnson was seized, for Fourth Amendment purposes, at the time of the traffic stop. “A passenger is seized, just as the driver is, from the moment a car stopped by the police comes to a halt on the side of the road” (Brendlin v. California, 551 U.S. 249 (2007)). Maryland v. Wilson did not answer the question of whether an officer could stop a passenger who wished to walk away from the scene of a traffic detention. However, in Arizona v. Johnson (555 U.S. 323 (2009)), the Supreme Court held all occupants of a lawfully stopped vehicle may be lawfully detained for the duration of the stop.

The vital question for the appellate court was whether Dunn could demand Johnson identify himself. The trial court ruled it was clearly established that Dunn could not do so. The United States Supreme Court has ruled that a person detained upon reasonable suspicion of criminal activity may be compelled to give his or her name (United States v. Hiibel, 543 U.S. 177 (2004)).

Whether an officer could ask a passenger for identification, or at least ask the passenger’s name, has been the subject of some continuing debate. The majority of courts hold the officer may ask, and some distinguish between asking and requiring passengers’ identification: In United States v. Tanguay (918 F.3d 1 (1st Cir. 2019)), “words and conduct as manifest to Tanguay” did not show the officer used his authority to restrain Tanguay’s liberty; in United States v. Pack (612 F.3d 341 (5th Cir. 2010)), “it was permissible to ask a passenger like Pack to identify himself and to run computer checks on his driver’s license and background”; in United States v. Soriano-Jarquin (492 F.3d 495 (4th Cir. 2007)), “the officer may ask for the identification of the driver of a lawfully stopped vehicle,…[and] he may request identification of the passengers also lawfully stopped”; and in United States v. Carpenter (462 F.3d 981 (8th Cir. 2006)), “a request to see identification is not a seizure, ‘as long as the police do not convey a message that compliance with their request is required.’”

When an officer asks for passenger identification and a passenger declines to provide it, the officer may be limited in what enforcement, if any, can follow. The Supreme Court noted, “Refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure” (Florida v. Bostick, 501 U.S. 429 (1991)). Similarly, in Berkemer v. McCarty (468 U.S. 420 (1984)), the court stated, “The officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the passenger is generally not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released.” (See also Martinelli v. City of Beaumont (820 F.2d 1491 (9th Cir. 1987)): “The use of [state statute] to arrest a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment’s proscription against unreasonable searches and seizures.”)

In Johnson’s case, the majority opinion noted the state supreme court would likely uphold a conviction for failure to identify oneself as required by the state statute. That is a similar approach to the Supreme Court decision in Hiibel, where the Supreme Court upheld the arrest for failure to identify only because “the initial stop was based on reasonable suspicion” and state law specifically required the production of identification during an investigative detention.

In last month’s issue of Xiphos, Michael Brave and I discussed the law of qualified immunity and whether a law is “clearly established.” The Johnson decision was split three ways: One judge wrote an opinion that Supreme Court precedent, including the decisions in Brown v. Texas (443 U.S. 47 (1979)) and Hiibel v. Sixth Judicial District Court of Nevada (542 U.S. 177 (2004)), establishes that Dunn did not commit a constitutional violation when he required Johnson to provide identification. Another judge wrote an opinion relying on Brown and Hiibel, along with other Supreme Court cases, opining that Dunn did commit a constitutional violation when he required Johnson to provide identification. Finally, the third judge cast the deciding vote with the glaringly obvious conclusion that, if two federal appellate judges cannot agree on what the law says, the law is not so clearly established. Therefore, the deputies could not know their conduct was unconstitutional. Because the law was not clearly established, the deputies in this case were entitled to qualified immunity.

Officers are always free to attempt voluntary conversations with passengers, talking nice (while thinking mean?) and asking for identification. Officers can also invite passengers to provide identification so their presence is documented, allowing them to be potential witnesses in defense of the driver. If the driver does not have a valid license or is arrested, officers can ask any passenger who is authorized to drive the vehicle to show a valid license. Be creative. Be polite. And discuss in advance with a local prosecutor the limits of any state law requiring persons to identify themselves to police.

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.
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