ID on Demand

March 2010 - By Eric Barker

Recently, on talk radio, the issue as to whether or not a police officer could just walk up to anybody and demand that the person present some identification was debated. Some thought that citizens must show identification to police when asked and that it may even be a crime not to have identification on you at all times. Others felt the police couldn't ask us for identification and that we don't have to identify ourselves to law enforcement at any time for any reason. After all, we have the right to remain silent and not tell the police anything, including our names, don't we?

The answer to this question is a definite maybe, and depends on the circumstances. Generally speaking, the courts recognize that there are 3 levels of encounters between police and citizens. The first and least obtrusive is the "consensual encounter". This is where an officer approaches a citizen and makes a request, i.e. "Can I see your ID?". The officer in this situation has no reasonable suspicion that the person is committing a crime, but for whatever reason, wants to initiate contact with the person. The citizen is free to comply with the officers request, ignore the officer and walk away, or tell the officer there is no way on earth he is giving the officer his or her ID. The officer has the right to ask; the citizen has the right to walk away.

The second level of interaction between citizens and police officers is called an "investigatory stop". This is when an officer actually detains a citizen, and that citizen does not have a legal right to walk away. In order for an officer to make an investigatory stop, the officer must have a well founded, reasonable, articulable suspicion that the person they are detaining has just committed, is in the process of committing or is about to commit a crime. In this instance, if the officer does indeed have this "reasonable suspicion" that the person is involved in a crime, the officer can detain the person and demand that the person identify themselves. However, since there is no law that currently mandates that we carry personal identification with us at all times (not yet anyway, but I won't be shocked when that law passes), identification sometimes can simply be accomplished by providing a name and date of birth. However, citizens should not give a false name as many officers have laptops in their patrol cars and can quickly pull the driver's license photo of the name given. If the photo on the laptop does not match the name given, under certain circumstances, the person could be arrested for giving a false name or resisting arrest without violence. This is true even if it is determined that the officer's "reasonable suspicion" that the person was committing a crime ended up being not true.

The third and final level of interaction is when the officer is making an arrest. As in the "investigatory stop", the citizen is required to identify themselves.

So, if you're approached by an officer who wants to ask you questions and you don't really want to strike up a new friendship at that moment, simply ask the officer if you are free to leave. If he says yes, you may leave and go about your business (or continue on in your slacking off) and walk away. If you are told that you are not free to leave, ask the officer what reason he thinks he has to detain you. Make sure you let him know that you know your rights and you’re not acquiescing to his unreasonable and unconstitutional demands. Then, when you pick yourself off of the ground and dust yourself off, don't forget to ask the officer if you can have your ID back.

Eric Barker
Criminal Defense Attorney