Demanding Identification from People on the Street

"Stop and identify" laws may enable police to demand identification. Using loitering laws for the same result is less certain.

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Many states have “stop and identify” laws. Under these laws, if a police officer reasonably suspects that someone has engaged in criminal activity, the officer can detain that person and ask for identification. A person who refuses to provide identification commits the crime of resisting an officer’s lawful order (Hiibel v. Nevada, U.S. Sup. Ct. 2004). Without that reasonable suspicion, however, a demand for identification may be illegal.

Drivers who are asked to produce an ID may need to comply as well. Laws in many states require drivers who are stopped for speeding and similar infractions to provide identification when an officer requests it.

Example: Jones is standing outside his parked truck. Noticing that Jones fits the description of a man who took clothing from a nearby store about a half hour earlier, Officer Juarez asks Jones for identification and questions Jones about where he’s been for the last half hour. Jones refuses to say anything to the officer. Because Officer Juarez reasonably suspected that Jones might have stolen the clothing, Jones’s refusal to provide identification would violate a “stop and identify” law. However, Jones has a constitutional right under the Fifth Amendment to remain silent, so he cannot be punished for refusing to answer the officer’s other questions.

Demanding Identification of Someone Who Is Loitering

Laws in many states define loitering as “wandering about from place to place without apparent business, such that the person poses a threat to public safety.” Under these laws, if a police officer sees someone loitering, the officer can demand identification and an explanation of the person’s activities. If the person fails to comply, the officer can arrest the person for loitering. Therefore, the refusal to answer questions is a problem only if the officer has also observed the person loitering.

Example: Officer Marcia Yu is dis­patched to Upscale Meadows after a resident calls the police to complain that a woman has been walking back and forth along the streets for over an hour, with no apparent purpose. From a distance, the officer observes the woman for a few minutes, and sees her stopping occasionally to peer into residents’ back yards. Believing that she may be planning a burglary, Officer Yu confronts the woman and asks her to provide identification and explain what she is doing in the neighborhood. The woman refuses to respond. Under the loitering laws of many states, Officer Yu can arrest the woman for loitering. The officer had a reasonable basis to believe that the woman posed a danger to the community. Because she didn’t identify herself or explain why she was in the neighborhood, the officer could arrest her. Had the woman responded to Officer Yu, the officer might not arrest her for loitering. However, she might be subject to arrest for a different offense, such as trespass (unlawful entry on someone else’s property).

Many people argue that police officers use loitering laws to clear neighborhoods of “undesirables.” Some courts have held loitering laws to be unconstitutional on the grounds that they are enforced discriminatorily against poor people and members of ethnic minority groups, and that they unduly restrict people’s rights to travel on public streets. The safest place to challenge the validity of a loitering law is in the courts, not on the streets to a police officer’s face.

Excerpted from The Criminal Law Handbook, by Paul Bergman, J.D. & Sara J. Berman, J.D.

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