Finding the Limit to “Stop and Identify” Statutes

This article will consider how the US Supreme Court has approached “stop and identify” statutes in the past and address whether the Fourth Amendment allows officers to compel individuals who are not suspects to identify themselves. First, the article will describe the Supreme Court case law surrounding “stop and identify” statutes. Second, it will consider lower court holdings on the constitutionality of officers compelling nonsuspects to identify themselves. Finally, it will argue police officers compelling nonsuspects to identify themselves violates the Fourth Amendment because the invasion of the nonsuspect’s privacy is not de minimis.

Supreme Court Doctrine Surrounding “Stop and Identify” Statutes

The Fourth Amendment states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Typically, in order for an officer to conduct a “search and seizure,” a warrant based on probable cause is required. See Kentucky v. King, 563 U.S. 452, 459 (2011). However, this requirement is subject to a number of exceptions. See id.

In Terry v. Ohio, the Court held that a police officer with a reasonable suspicion that an individual was connected with a crime could temporarily detain that suspect. 392 U.S. 1, 30 (1968). If, in the course of that stop, the officer developed a reason to believe the suspect was armed and dangerous, the officer could conduct a reasonable search of their person for weapons. Id. Terry expanded police powers by allowing officers to “search and seize” a suspect based on a lower quantum of evidence than probable cause would typically require. In reaching this holding, the Court conducted its typical Fourth Amendment test for reasonableness, balancing the governmental interest in the “search and seizure” against the invasion of privacy. Id. at 22–27. While the Court recognized that even a temporary detention invaded the privacy of an individual by “restrain[ing] his freedom to walk away,” and that a frisk constituted an “annoying, frightening, and perhaps humiliating” invasion of “cherished personal security,” it found that the societal interest in furthering investigative efforts and promoting officer safety supported allowing a temporary “stop and frisk.” Id. at 16, 22–25. However, given the possibility of invaded privacy during a stop, the Court held that the authority of the officer to search the suspect was “narrowly drawn” and would be “limited to that which was necessary for the discovery of weapons.” Id. at 26–27.

Justice White’s concurrence in Terry gave the first indication of how the Court might approach “stop and identify” statutes. While an officer could address questions to anyone stopped, “the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id. at 34 (White, J., concurring). Given that the majority opinion in Terry had already stressed the limited nature of the “stop and frisk,” Justice White’s concurrence indicated that the Court would likely view a statute requiring a suspect to identify himself as unconstitutional.

Indeed, subsequent cases echoed Justice White’s concurrence. In Berkemer v. McCarty, a unanimous Court held that a Miranda warning was not required during a routine traffic stop. 468 U.S. 420, 442 (1984). The Court first wrote that “the usual traffic stop is more analogous to a so-called ‘Terry stop.’” Id. at 439. The Court then reasoned that a Miranda warning was not required during a traffic stop due to the “nonthreatening character of a Terry stop,” where 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 detainee is not obliged to respond.” Id. at 439–40 (emphasis added). In Kolender v. Lawson, the Court held that a statute requiring a loitering individual to give “credible and reliable” identification to an officer upon request was unconstitutional on vagueness grounds. 461 U.S. 352, 353–54, 361 (1983). Even though the majority opinion in Kolender did not address the Fourth Amendment challenge, Justice Brennan addressed it in his concurrence, writing that “[s]tates may not authorize the arrest and criminal prosecution of an individual for failing to produce identification. . . .” Id. at 362 (Brennan, J., concurring).

While this line of cases suggested a limited approach that would hold “stop and identify” statutes unconstitutional, the Court simultaneously began to expand the parameters of permissible actions by officers relying upon the same safety rationale found in Terry. In Pennsylvania v. Mimms, the Court held that a police officer could order a lawfully detained suspect in a Terry stop out of their vehicle regardless of whether the order to exit had any relation to the reasons for the initial seizure. 434 U.S. 106, 111 (1977). The Court found that the government’s interest in officer safety was “both legitimate and weighty.” Id. at 110. A face-to-face encounter reduced the likelihood of officer injury from assault by the suspect and also reduced the risk of injury from passing traffic if the officer were forced to stand on the driver’s side. Id. at 110–11. In the invasion of privacy portion of the Fourth Amendment analysis, the Court found that the “intrusion” of ordering the driver to step out of the car on that person’s liberty could “only be described as de minimis.” Id. at 111. The Court reasoned that because the driver was being asked to expose little more than what was already exposed, and because they were already lawfully detained in the stop, the intrusion of being forced to stand outside was at most a “mere inconvenience” for the driver that did not outweigh the concern for officer safety. Id.

Maryland v. Wilson then expanded Mimms to apply to passengers. 519 U.S. 408, 415 (1997). On the governmental interest side of the balancing test, the concern for officer safety applied to passengers and drivers alike. Id. at 412. The passengers, just like the driver, could have a violent reaction to being stopped by an officer, and if the passenger was on the driver’s side, then the same roadside traffic safety concerns existed. Id. at 413. The Court recognized that the infringement on the passengers’ privacy interest was greater than for the driver, as there had been probable cause to stop the driver but “there [was] no such reason to stop or detain the passengers.” Id. However, the Court reasoned that, practically speaking, any invasion of privacy was minimal because the passengers had already been “stopped by virtue of the stop of the vehicle.” Id. at 414. Given the minimal invasion of privacy and the weighty concern for officer safety, the Court held that an officer could order passengers out of a lawfully detained car without violating the Fourth Amendment. Id. at 415.

Despite prior explicit statements indicating statutes requiring suspects to identify themselves were unconstitutional, the officer safety rationale used in Mimms and Wilson ultimately won out. Two previous cases, Brown v. Texas and Kolender v. Lawson, both evaded the question of whether “stop and identify” statutes violated the Fourth Amendment. See Brown, 443 U.S. 47, 99 (1979); see also Kolender, 461 U.S. 352, 353–54, 361 (1983). In Hiibel v. Sixth Judicial District Court of Nevada, the Court squarely addressed the constitutionality of “stop and identify” statutes for the first time. 542 U.S. 177 (2004). The Court in Hiibel characterized its prior statements as unbinding dicta and held that statutes requiring a suspect in a Terry stop to identify themselves were constitutionally permissible. Id. at 187–89. The Court reasoned that “[o]fficers . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to [any] potential victim.” Id. at 186. Discussion in the case of the privacy interest of the suspect was limited. The Court noted that requiring the suspect to disclose their identity did not change the nature of the stop and that answering a request to disclose a name would likely be insignificant and rarely incriminating, but ultimately the Court held the Fourth Amendment was not violated when the deputy arrested Hiibel for failure to identify himself. Id. at 188, 191.

Following Mimms, lower courts began to broaden police powers during a Terry stop. See United States v. Vargas, 369 F.3d 98, 102 (2d Cir. 2004) (holding that officers could handcuff a suspect during a Terry stop); see also United States v. Navarette-Barron, 192 F.3d 786, 789–91 (8th Cir. 1999) (holding that officers could draw their weapons in a suspect’s direction during a Terry stop). Scholars viewed Hiibel as auguring a further shift in the doctrine towards accepting broad police powers to question in their investigative efforts. See E. Martin Estrada, Criminalizing Silence: Hiibel and the Continuing Expansion of the Terry Doctrine, 49 St. Louis U. L.J. 279, 294 (2005). Given the Court’s limited discussion of privacy interests in Hiibel, and its dismissive posture towards them, acceptance of broader “stop and identify” statutes requiring nonsuspects to identify themselves appeared likely. See id. The majority of lower courts, however, have not yet addressed the issue.

Treatment of “Stop and Identify” Statutes Involving Nonsuspects

Many lower courts have held that an officer’s request for a passenger’s identification does not violate the Fourth Amendment. Some courts have found the inquiry to be permissible because knowledge of identity helps ensure officer safety. See United States v. Clark, 879 F.3d 1, 4 (1st Cir. 2018). Other courts have found it permissible as a “normal inquiry related to addressing a traffic violation.” United States v. Terry, No. 3:18-CR-24, 2019 WL 2176330, at *16 (W.D. Pa. May 20, 2019). Importantly, cases dealing with officer requests are distinct from cases dealing with officer compulsion. When an officer asks a private party a question, and the person voluntarily answers it, the resulting search is a valid consensual search. Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973). A consensual search is valid because the Fourth Amendment does not protect individuals against voluntarily surrendered privacy interests. Geo. Univ. Law Ctr., Warrantless Searches and Seizures, 35 Geo. L.J. Ann. Rev. Crim. Proc. 37, 55 (2006). But when an officer compels a person’s identification by claiming authority under a “stop and identify” statute, the response is no longer consensual and the Fourth Amendment provides protection. See Bumper v. North Carolina, 391 U.S. 543, 548–49 (1968) (finding that voluntariness is not shown when there is “no more than acquiescence to a claim of lawful authority”).

The Ninth Circuit directly addressed the constitutionality of an officer compelling a nonsuspect to identify themselves in United States v. Landeros, 913 F.3d 862, 864–66 (9th Cir. 2019). There, an officer performed a lawful traffic stop but did not possess a reasonable suspicion that the passenger was associated with criminal activity. Id. The officer then demanded the passenger identify himself, proceeded to arrest him when he failed to comply, and seized evidence from him during the arrest. Id. In deciding whether to exclude the evidence seized after the officer’s demand, the Ninth Circuit held that it was unconstitutional for an officer to prolong a traffic stop by demanding identification from a passenger absent an independent reasonable suspicion that the passenger committed a crime. Id. at 868.

The Ninth Circuit relied upon a recent Supreme Court case that didn’t directly implicate “stop and identify” statutes: Rodriguez v. United States, 575 U.S. 348, 351–52 (2015). In that case, the Supreme Court held that prolonging a stop past the time reasonably required to complete the stop’s mission was unlawful absent reasonable suspicion of an independent offense. Id. at 357. However, the Supreme Court also recognized that the “government’s officer safety interest stems from the mission of the stop itself . . . so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely.” Id. at 356–57. The Ninth Circuit concluded that because “knowing Landeros’s name would not have made the officers any safer,” the extension of the stop by demanding the passenger’s identification was not permissible absent independent reasonable suspicion. Id. at 868–70.

In coming to this conclusion, however, the Ninth Circuit ignored a necessary condition to Hiibel’s holding: Obtaining a suspect’s identification in the course of a stop was held to be constitutional only because it furthered the important government interest of officer safety. The Supreme Court determined that knowing a suspect’s name served “important government interests” because it allowed the officer to “assess the situation” as well as “the threat to their own safety [] and possible danger to [any] potential victims.” Id. at 186. The government interest in the officer knowing the identity of an individual would extend to passengers as well. A passenger, like a driver, could have a background of past violence or mental illness, and an officer’s knowledge of this information would reduce their likelihood of being assaulted. Knowledge of a passenger’s identity therefore also appears to be the type of safety precaution that Rodriguez held constitutionally permissible even if it extended the duration of the stop.

The Ninth Circuit in Landeros did little to explain its conclusion that “knowing Landeros’s name would not have made the officers any safer.” Landeros, 913 F.3d at 868. Rather, Landeros found that Brown v. Texas, rather than Hiibel, gave the critical holding. Id. at 870. According to the Ninth Circuit, Brown held that “an officer may not lawfully order a person to identify herself absent particularized suspicion [of criminal activity].” Id. But Brown’s holding was far more limited. In Brown, the Supreme Court held that because “the officers lacked any reasonable suspicion to believe [the suspect] was engaged in criminal conduct . . .” detention of the suspect was unconstitutional. 443 U.S. 47, 53 (1979). The Supreme Court in Brown opined that “[t]he flaw in the State’s case is that none of the circumstances preceding the officers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct.” Id. at 51. Brown didn’t reach the critical question of whether an officer compelling a suspect to identify himself in a lawful Terry stop would be constitutional. Brown also did not address the further question of whether compelling nonsuspects to identify themselves in a lawful stop would be constitutional.

By misreading Brown’s holding and ignoring the safety rationale underlying Hiibel’s allowance of compelled identifications of suspects, the Ninth Circuit’s analysis does not follow Supreme Court precedent. Similar to Wilson’s expansion of Mimms, the analysis must instead recognize that there is a valid governmental interest in officer safety and then weigh this against the privacy interest of those nonsuspects.

Fourth Amendment Reasonableness Balancing

Because the government interest in officer safety is likely the same for both suspect identification and nonsuspect identification, analysis of whether Hiibel’s holding should be extended to nonsuspects must address whether the privacy interest of a nonsuspect in their identification is greater than the privacy interest of a suspect. If the privacy interest of a nonsuspect is greater, then an officer compelling a nonsuspect to identify themselves may be unconstitutional under the Fourth Amendment. The Court’s analysis in Maryland v. Wilson indicates two reasons why a nonsuspect during a stop has a greater privacy interest in their identity than a suspect: (1) the officer does not have a reasonable suspicion that the nonsuspect is associated with criminal activity and (2) the nonsuspect does not give up any identifying information by virtue of the stop. Before addressing the difference between the privacy interest of a suspect and a nonsuspect, the general privacy interest an individual has in their own identity deserves elaboration.

The Privacy Interest Affected When Identification Is Compelled

While surrendering identifying information to another person might not typically be construed as a particularly weighty invasion of privacy, giving your identity to an officer pursuant to a “stop and identify” statute is qualitatively different for two reasons: (1) the officer is compelling that individual to identify themselves under a claim of lawful authority and (2) the officer has the ability to run that individual’s name through a sophisticated database and access an unparalleled amount of data. See Estrada, supra, at 305. Justice Ginsburg, dissenting in Herring v. United States, described the expansive nature of these police databases:

Electronic Databases form the nervous system of contemporary criminal justice operations. In recent years, their breadth and influence have dramatically expanded. Police today can access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watchlists, the Federal Government’s employee eligibility system, and various commercial databases. Moreover, States are actively expanding information sharing between jurisdictions. As a result, law enforcement has an increasing supply of information within its easy electronic reach.

555 U.S. 135, 155 (2009) (Ginsburg, J., dissenting).

The recent advancement of technology and its capacity to encroach upon new areas that were traditionally private has been an area of increasing concern for the Supreme Court. In the face of modern technology with a greater ability to invade on individuals’ privacy, the Court has sought to maintain the level of privacy that existed when the Fourth Amendment was adopted. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). Both the amount of data technology stores and whether that technology is generally available are factors considered when determining the strength of an individual’s privacy interest. See Riley v. California, 573 U.S. 373, 394–95 (2014).

While Hiibel had a limited discussion of the individual’s privacy interest in their identification, given the expansive nature of the databases and the ability of these databases to encroach on traditionally private areas, the privacy interest of an individual in their identity in a police context appears weighty. Because erroneous information is often stored in these databases, there is also a distinct possibility that even innocent individuals may have their privacy invaded if they are required to give their identity pursuant to a “stop and identify” statute. Hiibel ultimately found that the safety interest of the government outweighed these privacy concerns and determined that compelling a suspect to identify themselves during a lawful stop did not violate the Fourth Amendment. However, Hiibel’s holding is properly limited to suspects because a nonsuspect’s privacy interest in their identity is even stronger.

Lack of Reasonable Suspicion

A suspect in a stop has a reduced privacy interest because the officer had a reason to stop that suspect. In Maryland v. Wilson, the Court determined that because there was “probable cause to believe that the driver ha[d] committed a minor vehicular offense,” but there was no such reason to stop or detain the passenger, the passenger’s privacy interest was stronger. 519 U.S. 408, 413 (1997). The greater privacy interest of the passenger relates back to the initial reason for allowing a Terry stop. As the Court described in Dunaway v. New York, the reason the Terry court allowed for a “stop and frisk” based on reasonable suspicion was because the “stop and frisk” was less intrusive than a search incident to arrest based upon probable cause. 442 U.S. 200, 210 (1979). According to the Court, “these intrusions [during a Terry stop] fell far short of the kind of intrusion associated with an arrest.” Id. at 212.

The degree of intrusion permitted during a stop is directly tied to the quantum of evidence the officer had when making the stop. If an officer has a reasonable suspicion, then the privacy interest of the individual is greater than if the officer had probable cause. If an officer has no reasonable suspicion of criminal activity, then the privacy interest of the individual is greater than if they possessed reasonable suspicion, and a correspondingly higher governmental interest is necessary in order to make the stop reasonable under the Fourth Amendment balancing.

Privacy Interest Not Forfeited by Virtue of Being with a Driver

In Maryland v. Wilson, the Court found that even though a stronger privacy interest of the passenger existed, because as a practical matter the passenger was already stopped, forcing the passenger to get out of the car and have them stand outside was de minimis. 519 U.S. at 414–15. This expanded upon Pennsylvania v. Mimms, which similarly found that because the driver was being asked to expose little more than what was already exposed, and because they were already lawfully detained in the stop, the intrusion of being forced to stand outside was at most a “mere inconvenience.” 434 U.S. at 111.

Practically speaking, the passenger is also being asked to expose little more than what was already exposed by virtue of them being in the stopped car because, just like the driver, the passenger had already been exposed by virtue of the stop, and had already been forced to stop. However, the passenger would not be practically forced to give up their identification by virtue of being with the driver. Indeed, the precise reason an officer would need to demand that a passenger tell them their identity is because they don’t know their identity. The officer likely wishes to get their name and plug it into the government’s database in order to get a wealth of information that would otherwise be unavailable. None of this personal information is revealed by virtue of the car being stopped. Therefore, rather than being a de minimis intrusion as in Wilson, compulsion of a passenger’s identification by the officer claiming authority under a “stop and identify” statute is not de minimis.

Conclusion

Although the Ninth Circuit in Landeros reaches the correct holding, their analysis does not correctly interpret Supreme Court precedent. Rather, the analysis should instead rely on the greater privacy interest of the nonsuspect. Officers who do not possess a reasonable suspicion the nonsuspect is associated with criminal activity must justify their actions based on a greater governmental interest. While Wilson relied on a practicality justification in finding the invasion of privacy of ordering a passenger out of a vehicle was de minimis, this practicality justification does not apply to nonsuspect identifications. By recognizing that officers compelling nonsuspects to identify themselves is not a de minimis action like in Wilson, courts would adhere to Supreme Court precedent and protect individuals from further encroachment on their privacy interests.