§ 9.04 Grounds for Arrest: "Stop and Identify" Statutes

• Jurisdiction: North Carolina

§ 9.04 Grounds for Arrest: "Stop and Identify" Statutes

Nineteen states in 2004 had so-called "stop-and-identify" statutes. In general, these statutes make it an offense for a person to refuse to provide her name — and, in some statutes, a driver's license or other form of identification — to a police officer upon request. In Brown v. Texas,²⁴ two police officers stopped a man, B, on the street even though they lacked any objective grounds to believe that he was engaged in criminal conduct. They demanded that he identify himself. When he refused, they arrested B pursuant to a Texas statute that obligates a person to give his name and address to a police officer "who has lawfully stopped him and requested the information." The Court unanimously overturned B's conviction because the officers lacked valid Fourth Amendment grounds to seize him in order to request identification. In short, B had not been lawfully stopped as a constitutional matter, so the provisions of the stop-and-identify statute could not constitutionally be applied.

But what if they had lawfully stopped B, and then arrested him for failing to identify himself? That is essentially the issue in Hiibel v. Sixth Judicial Dist. Court,²⁵ in which an officer lawfully stopped H, based on reasonable suspicion (but less than probable cause to believe) that H had been involved in an earlier assault of a woman. The officer asked H to identify himself and, when H repeatedly failed to do so, arrested H for obstructing the officer in the discharge of his lawful duties, under the authority of a Nevada statute that requires a person lawfully stopped to disclose her name to an officer upon request.

The Court held that the Nevada statute did not violate the Fourth Amendment.²⁶It stated that dicta in prior opinions, which suggested that a person who is questioned is "not obliged to answer . . . and refusal to answer furnishes no basis for an arrest,"²⁷were not controlling. The Court explained that, "the Fourth Amendment does not impose obligations on the citizen but instead provides rights against the government. As a result, the Fourth Amendment itself cannot require a suspect to answer questions. . . . Here, the source of the legal obligation [to identify oneself] arises from Nevada state law, not the Fourth Amendment."

Hiibel held that "an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop."...