Your Papers, Please: Police Authority to Request Identification from a Passenger During a Traffic Stop in Alaska

• Publication year: 2012

§ 29 Alaska L. Rev. 261. YOUR PAPERS, PLEASE: POLICE AUTHORITY TO REQUEST IDENTIFICATION FROM A PASSENGER DURING A TRAFFIC STOP IN ALASKA

Alaska Law Review
Volume 29, No. 2, December 2012
Cited: 29 Alaska L. Rev. 261

YOUR PAPERS, PLEASE: POLICE AUTHORITY TO REQUEST IDENTIFICATION FROM A PASSENGER DURING A TRAFFIC STOP IN ALASKA

Patricia Haines ^[*]

INTRODUCTION

Alaska's Constitution explicitly recognizes a right to privacy. ^[1] This Article examines Alaska's right to privacy in the context of a police officer's authority to request identification from a passenger during a routine traffic stop.

Take, for example, this potential scenario: a police officer stops a vehicle for a routine traffic offense, such as a non-functioning license plate light. There is no doubt that the officer has authority to stop a vehicle in such circumstances; the officer has personally observed an infraction of the traffic code. Nothing about the observed infraction, however, implicates a passenger of the vehicle in any unlawful activity. During the stop, the officer requests identification from all passengers because of a standard investigative practice to make a blanket request in all traffic stops. Once the officer obtains the passenger's identification, the officer runs her name and information through the state law enforcement database system, checking for outstanding warrants and any parole or probationary status. Occasionally, the request yields information that permits the officer to arrest an individual who otherwise has done nothing indicative of criminal activity and merely had the misfortune to be sitting next to someone who failed to illuminate their license plate light.

The United States Supreme Court has gradually expanded the authority of police officers over both drivers and passengers during routine traffic stops. During a traffic stop, police officers may inquire into matters unrelated to the stop, order drivers and passengers to exit the vehicle, ^[2] and conduct a pat down search of both the driver and any passenger if the officer reasonably concludes that the individual is armed and dangerous. ^[3] Although the issue of requesting a passenger's identification has never been squarely presented to the Supreme Court, many jurisdictions that have addressed the issue have ruled that police may also request identification and run a criminal background check on passengers as a routine matter in every traffic stop. ^[4]

However, the Alaska Constitution, unlike the Federal Constitution, explicitly guarantees the right to privacy. ^[5] This constitutional provision establishes a limit to police authority not found at the federal level or in most other states. With that in mind, this Article examines whether the Alaska Constitution permits a police officer to request identification from a passenger during a routine traffic stop when the request is not related to the justification for the stop, when the officer has no reasonable suspicion of criminality, and when no other circumstances indicate a legitimate need to obtain identification. Part 1 begins by examining the law in other jurisdictions, including the federal courts and the courts of other states that have addressed the issue. Part 11 then examines whether the additional privacy protections found in the Alaska Constitution, as applied and interpreted by Alaska courts, impose a limit on police authority to ask for a passenger's identification. Ultimately, this Article concludes that the Alaska Constitution does not allow law enforcement officers to request identification from passengers in a vehicle during a routine traffic stop without reasonable suspicion of criminality or other circumstantial justification for the request.

I. OVERVIEW OF LAW FROM OTHER JURISDICTIONS

The United States Supreme Court has never addressed whether a police officer may request identification from, or conduct a criminal background check on, passengers in a vehicle during a routine traffic stop absent reasonable suspicion of criminality. Every United States Circuit Court to address the issue has found that the Fourth Amendment to the United States Constitution allows both the request for identification and the criminal check, as long as the underlying traffic stop is not unreasonably extended. ^[6] State courts that have addressed the issue have approved various outcomes under their own constitutions, from allowing requests for identification and criminal checks as a matter of course, ^[7] to allowing officers to request identification but not run criminal checks, ^[8] to forbidding any questions about a passenger's identity. ^[9] The Alaska Supreme Court has not decided the issue under the Alaska Constitution.

A. Routine Traffic Stops and Terry v. Ohio

Both Article I, Section 14 of the Alaska Constitution and the Fourth Amendment of the United States Constitution protect against unreasonable searches and seizures. ^[10] The United States Supreme Court recently confirmed that a traffic stop qualifies as a seizure, reasoning that the driver and passengers are effectively seized for the duration of the stop. ^[11]

An officer who personally observes a traffic infraction has probable cause for a traffic stop. ^[12] Routine traffic stops, even those supported by probable cause, are considered "a species of investigative stop rather than a formal arrest." ^[13] The principles of Terry v. Ohio, ^[14] a seminal case that limited the scope and duration of investigative stops, therefore mandate that "a traffic stop 'must be temporary and [must] last no longer than is necessary to effectuate the purpose of the stop'." ^[15] 1f a police officer's investigation exceeds these boundaries, either in duration, manner, or scope, the stop becomes unreasonable and constitutionally invalid. ^[16]

In the course of a traffic stop, it is not considered an unreasonable search and seizure for a police officer to ask the driver to "produce routine driving documents." ^[17] Several state courts have identified a driver's license, proof of insurance, and the vehicle's registration as routine driving documents. ^[18] A computer check to verify the validity of routine driving documents does not unreasonably expand the scope or duration of a valid traffic stop. ^[19]

Prior case law confirms the Supreme Court's recent holding that a traffic stop is a seizure that must comport with the principles of Terry v. Ohio. ^[20] Accordingly, the scope and duration of the stop must not be prolonged by police conduct unrelated to the stop. ^[21] However, federal and state courts have reached different conclusions regarding how these principles apply when an officer conducts a check for outstanding warrants on the passenger's identification during a traffic stop.

B. Rights of Passengers Under Federal Law

The United States Supreme Court's recent holding that a traffic stop constitutes a seizure applies to both the driver as well as all passengers. ^[22] Because a traffic stop impacts a passenger's constitutional right to be free from unreasonable seizures, a passenger has standing to challenge an illegal stop or the unreasonable expansion of an initially lawful stop. ^[23]

The Court has found that routine traffic stops "resemble, in duration and atmosphere, the kind of brief detention authorized in Terry." ^[24] However, given the potential dangers of traffic stops, the Court determined that officers can minimize the risk of harm to police and the occupants of a vehicle if they take unquestioned control of the situation. ^[25] Because of the inherent dangers present in routine traffic stops, the Court has allowed officers to take additional protective measures. ^[26]

Four Supreme Court decisions cumulatively apply and clarify Terry in a traffic-stop setting: Pennsylvania v. Mimms, ^[27] Maryland v. Wilson, ^[28] Brendlin v. California, ^[29] and Arizona v. Johnson. ^[30]

In Pennsylvania v. Mimms, the Court addressed the question of whether ordering the driver to get out of the car after a lawful stop "was reasonable and thus permissible under the Fourth Amendment." ^[31] When an officer stopped Mimms for an expired license plate, the officer noticed a bulge under Mimms' jacket. ^[32] Fearful for his safety, the officer frisked Mimms and discovered a loaded revolver. ^[33] Mimms was immediately arrested. ^[34] In assessing the constitutionality of the officer's actions, the Court addressed the reasonableness of the officer's actions, weighing the need to protect an officer's safety with an individual's right to "personal security free from arbitrary interference by law officers." ^[35] Because of the potential risks and dangers an officer faces approaching a person seated in an automobile, the Court found it reasonable to allow officers to avoid unnecessary risks in the course of duty. ^[36] The Court reasoned that the public interest in officer safety outweighed such a "de minimis" intrusion into the driver's personal liberty. ^[37] The Court held that it is constitutional for police officers to order a driver out of his vehicle. Furthermore, the Court held that an officer may conduct a pat down search of the driver if the officer reasonably concludes that the driver "might be armed and presently dangerous." ^[38]

Maryland v. Wilson extended the Mimms rule to apply to passengers as well as drivers. ^[39] Wilson was a passenger in a vehicle being pursued for speeding and tag violations. ^[40] During the...