After last week’s post about not talking to the police, a reader wrote us to ask about identifying yourself to a police officer. It’s not a simple yes or no answer, and, since we love fan-mail so much, we turned the answer into a post. Here’s to you, Mr. H.
Do you have to identify yourself to the police? It depends, and our pop quiz is a trick question.
The relevant Supreme Court cases are Terry v. Ohio and Hiibel v. Sixth Judicial District Court of Nevada. In Terry, the court said that law enforcement can stop a person and conduct a frisk if the officer has a reasonable suspicion (which is less than probable cause) that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.” This may extend to asking you to identify yourself as it is a kind of investigation.
In Hiibel, the police were investigating a report of a possible crime. They approached Hiibel, who was parked in a car. Hiibel repeatedly refused to give his name, and was subsequently arrested. Nevada had a stop and identify law, which was used to convict him. The Supreme Court determined that these laws are constitutional, so long as they require officers to have reasonable and articulable suspicion of criminal involvement. However, if the person believes that providing their name would be incriminating, it’s possible that fifth amendment protections might still apply. But if police are not investigating and have no reasonable suspicion, then you do not have to give your name.
Further complicating matters is the question of whether or not you are operating a vehicle. Remember that driving is a privilege and not a right, thus the requirement to be licensed. So you have fewer protections when you are driving a car, and generally will have to give your license to an officer if you are pulled over on a traffic or other Terry stop.
If you’re still with me, here’s the next wrinkle: only about half of the states have stop and identify laws. You can find a list here. If you’re very concerned about this issue, it’s worth taking the time to look at the list and read the statutes for your jurisdiction. You may also want to consult with a lawyer licensed in your state, and visit Flex Your Rights and other ACLU police encounter resources. Two videos free on youtube.com, Busted and 10 Rules for Dealing With Police, are also invaluable educational tools.
What should you do if a law enforcement officer asks for your name? Well, keep in mind that law enforcement encounters can go badly for you very quickly, even when you are completely innocent. That’s why Professor Duane is so passionate about educating people to never speak to the police. In the interests of a more complete discussion, I should point out that there is an opposing school of thought that suggests that your best bet is to be cooperative in the hopes that a submissive demeanor and honest information will end the police encounter quickly and peaceably.
One way to handle an officer’s request for your name is to use the magic question, “Officer, am I free to go?” I call this the ‘magic question’ because the moment you utter it, the officer has to make some decisions. If the officer thinks they have enough for a Terry stop, they can say no. If not, they are legally required to let you go. Of course, it doesn’t always work that way. If the officer won’t answer you (they commonly respond with another question or a non-answer) you can get more specific. If there’s any chance you are not free to go, you need to utter the second magic question asap: “I do not consent to any searches.”
I once had a police encounter in which I was unclear as to whether I was free to go. I repeated the question several times, and she would not answer me. I finally said, perhaps unwisely, “Okay, you haven’t said you are detaining me so I’m going to walk away now.” At that point, she said that I was not free to go. The next thing I said was surely stupid, as it’s important to be calm and polite with police, but I nevertheless replied, “I hope you have reasonable suspicion.”
While I had done nothing wrong and had nothing to hide, I feel strongly that law enforcement officers should respect my Fourth Amendment rights without me consenting to searches or providing identification. She let me go within seconds after that exchange, and I think she realized that I was informed enough about my rights that it could turn into trouble for her. Oh, and the fact that I was taking pictures and video might have played a role. Too bad that camera died, or I would share them here.
My heart was pounding the whole time. Police encounters are far more stressful than you can imagine, even when you have worked within the system for years.
Has anything like this ever happened to you?