Stop and identify statutes

"Stop and identify" statutes are laws in several U.S. states that authorize police^[1] to lawfully order people whom they reasonably suspect of committing a crime to state their name. If there is not 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.^[2]

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.^[3]

However, some "stop and identify" statutes that are unclear about how people must identify themselves violate suspects' due process right 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.^[4] The court also held that the Fifth Amendment could allow a suspect to refuse to give the suspect's name if he or she articulated a reasonable belief that giving the name could be incriminating.^[5]

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,^[6]^[7]^[8] which penalize the failure to present a driver license during a traffic stop.

^ Although 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.
^ 542 U.S. 177 (2004)
^ 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. — 542 U.S. 177, 184–185
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. — 542 U.S. at 185
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. — 118 Nev. 868 at 875
^ 461 U.S. 352
^ 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. — 542 U.S. at 190
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. — 542 U.S. at 191
^ "28-1595 - Failure to stop or provide driver license or evidence of identity; violation; classification". www.azleg.gov. Retrieved January 25, 2023.
^ "Texas Transportation Code Section 521.025 - License to Be Carried and Exhibited on Demand; Criminal Penalty". texas.public.law. Retrieved September 20, 2020.
^ "ORS 807.570 - Failure to carry or present license - 2020 Oregon Revised Statutes". www.oregonlaws.org. Retrieved September 20, 2020.

[1] Although 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.

[2] 542 U.S. 177 (2004)

[hiibel-3] 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. — 542 U.S. 177, 184–185
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. — 542 U.S. at 185
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. — 118 Nev. 868 at 875

[Kolender-4] 461 U.S. 352

[5] 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. — 542 U.S. at 190
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. — 542 U.S. at 191

[6] "28-1595 - Failure to stop or provide driver license or evidence of identity; violation; classification". www.azleg.gov. Retrieved January 25, 2023.

[7] "Texas Transportation Code Section 521.025 - License to Be Carried and Exhibited on Demand; Criminal Penalty". texas.public.law. Retrieved September 20, 2020.

[8] "ORS 807.570 - Failure to carry or present license - 2020 Oregon Revised Statutes". www.oregonlaws.org. Retrieved September 20, 2020.

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