Yesterday a question arose in class: are U.S. citizens required to carry personal identification? I said no, we are not. The post 9/11 debate about whether the U.S. should require personal identity cards raised the specter of a totalitarian Big Brother state for too many people–thankfully. One student, however, was adamant that California requires them, so I researched it. The bottom line–failing to carry identification on one’s person is not, by itself, a criminal offense in the United States.
The closest Supreme Court case is Hiibel v Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S 177 (2004). Larry Hiibel was charged under state law for “willfully resisting, delaying, or obstructing a public officer in discharging or attempting to discharge any legal duty of his office.” The officer’s legal duty was defined by Nevada’s “stop and identify” statute, NRS §171.123:
1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime . . .
3. T he officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.
Hiibel argued that as applied to his case §171.123 violated the Fourth and Fifth Amendments of the United States Constitution. The Nevada trial, intermediate appellate, and Supreme courts all disagreed and Hiibel appealed to the U.S. Supreme Court.
The Court cited various state stop and identify statutes and summarized their characteristics:
Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.” Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code . . . [which] provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.” In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.
Note that while the statutes require an individual to state his name during an investigatory stop–which (as the Court describes elsewhere in Hiibel) is premised on “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity”–none require the individual to produce written identification.
The Court held that as applied to Hiibel’s case the stop and identify statute did not violate the Fourth or Fifth Amendments. The Court’s decision in Terry v Ohio “recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.” A Terry stop must be “justified at its inception, and . . . reasonably related in scope to the circumstances which justified the interference in the first place.” The Court said “our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops” and “serves important government interests:” whether the person stopped has outstanding warrants, “a record of violence or mental disorder.” The Court also held that requiring Hiibel to identify himself does not violate his Fifth Amendment privilege against self-incrimination because “refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business.”
Hiibel obviously does not directly address whether one is required to carry identification, but it supports that conclusion.
- Police only have the authority to stop and identify an individual if there are “specific, objective facts establishing reasonable suspicion to believe [he is] involved in criminal activity”–in other words, if there are grounds to conduct a Terry stop
- Absent such specific objective facts police cannot require that a person identify himself
- If police cannot require a person to identify himself, they do not have the authority to seek, as an end in itself, whether the person is carrying identification.
Despite this, researching the issue showed that many people online share my student’s adamant belief, about California and other states. Some believe it because, they say, police have told them they can be arrested for not carrying identification outside the context of a Terry stop. I think they are wrong on the law, but I’ve spend enough time on this topic today. If anyone has a citation to a statute or a case that proves me wrong, let me know. I’ll defer to another day research on which (if any) stop and identify statutes require an individual to produce written identification during a Terry stop.