A Little Clarification - Printable Version

Wednesday, October 20, 2010
JP Molnar

In the July Cruiser Corner column, Traffic Stop Survival, Part 2, there was reference to a U.S. Supreme Court decision that upheld the right of an officer to identify all individuals involved in the context of a lawful, investigative stop, which includes traffic stops. This generated a lot of interest and questions among officers around the country, and it was clear some clarification was needed. The challenge with a subject like this is the variation in state laws and this is especially true with the case of Hiibel v. Sixth Judicial District Court of Nevada, which can be found by visiting the link below.

Electronic Privacy Information Center
www.epic.org/privacy/hiibel/

The Hiibel case can be a confusing case. This case had a narrow holding, meaning it was limited to the facts and circumstances of that particular case. Generally, under the Fourth Amendment, a person can refuse to give his name during a Terry stop. However, under the Hiibel decision, if that person is in a state that has a “stop and identify” statute on the books (the Hiibel case involved a man who refused to give his name in Nevada, a state that had such a “stop and identify” state statute), and that person refuses to identify himself upon request, he can be arrested for violating the state statute without being a violation of the Fourth Amendment.

Thus, Hiibel’s holding is limited to those states that have “stop and identify” statutes. At the time of the Hiibel decision (2004), 21 states had such statutes. They were Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, Nevada, North Dakota, Rhode Island, Utah, Vermont and Wisconsin. Only in states that have “stop and identify” statutes will officers be permitted to arrest persons for failing to provide identification. Bottom line: Check with your local legal advisor to determine the best course of action in these situations and what your options are. And, as always, articulate carefully the observations and actions that led up to a particular action in the field.

Special thanks to Laura Scarry of DeAno & Scarry for assisting in this clarification.