Law enforcement officers routinely ask people for their names and other identifying information. Police may ask for the information as part of a specific criminal investigation. At other times, they may need the information to protect themselves, allowing them to determine whether the person they are speaking with has a violent criminal history. Many states have made it illegal to refuse to provide certain identifying information to a law enforcement officer when the officer has properly requested it.
In some states, a person questioned by a law enforcement officer is not required to respond. However, many states have passed “stop-and-identify” laws. These laws permit a law enforcement officer to stop a person suspected of criminal behavior and ask for identification. Failure by the person stopped to respond is a violation of the law and can lead to arrest and charges.
Some states do not have stop-and-identify statutes. Related statutes in these states vary, and some require a person to respond to the officer’s request for identification, and some do not. However, if a person does voluntarily elect to answer, providing false information is usually a crime.
In states that have stop-and-identify laws, the prosecutor has to prove two things in order to get a conviction:
Before a police officer can properly stop a person and ask for identification, the officer must have a reasonable, articulable suspicion that a crime has occurred or is about to occur. This means the officer must be able to state facts and circumstances that would lead a reasonable person to believe that a crime occurred or will soon. For example, if an officer observes a car driving lawfully in the early morning hours, those facts alone are not sufficient to indicate that a crime occurred, and the officer could not properly stop the vehicle. On the other hand, if the officer had information that a car of the same color, make and model, and with the same number of occupants, just left the scene of a near-by crime, the officer would have specific facts suggesting that a crime occurred involving the occupants of the car and could lawfully stop the vehicle.
As long as a law enforcement officer’s detention (stop) of a person is legal, the officer is always free to ask questions. As discussed above, in some states the person stopped must provide identification, while in other states the person stopped is not required to respond.
While the answer varies by state, all states with stop-and-identify statutes require that the person stopped provide at least a name. Some states also require the person stopped to provide an address. Other states simply require that the person stopped not provide false information. In these states, the person stopped is not required to answer the law enforcement officer.
A number of defenses are commonly raised by those charged with failure to identify to a police officer.
As previously discussed, a law enforcement officer must have reasonable, articulable suspicion that a crime has occurred or is about to occur. If the law enforcement officer stops the defendant without a reasonable belief that a crime has occurred, the prosecutor cannot use the defendant’s refusal to answer as evidence of failure to identify to a police officer.
Some prosecutions for failure to identify to a police officer are based on vagrancy laws. Such laws attempt to address issues such as loitering, panhandling, and public drunkenness by homeless or other persons who have no visible means of support. In a number of cases, vagrancy laws have been struck down by the courts for unconstitutional vagueness. This means that the law does not adequately describe the activity that has been made criminal.
The Fifth Amendment to the United States Constitution provides that a person cannot be compelled to provide self-incriminating testimony. In many instances, providing identification to a police officer would not be self- incriminating. However, in other situations disclosing one’s name might alert the officer to outstanding warrants or criminal charges. The United States Supreme Court has not ruled on whether providing one’s name in response to police questioning on the street constitutes “testimony,” thereby bringing the exchange within the protection of the Fifth Amendment. State courts have ruled inconsistently. So whether this defense would apply in a particular state depends on how that state’s courts have ruled on the issue.
Failure to identify to a police officer is usually a misdemeanor offense. Someone convicted of this crime can be subjected to any or all of the following penalties:
If you are facing a charge of failure to identify to a police officer, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses you might have. For example, if you believe that a law enforcement officer improperly stopped you, you will want the assistance of an attorney in developing this defense. Moreover, if information you provided to the police after an illegal stop led to your arrest for a separate crime, a lawyer may successfully prevent the prosecution from using against you the information you provided in response to the police officer's questioning.
And if you believe that your state allows you to refrain from answering by claiming the protection of the Fifth Amendment, you’ll need to know whether that defense is available in your state—an attorney should be able to help you with that question.
A lawyer’s skillful negotiation with the prosecutor can sometimes result in a reduction of the charges and in lower fines. A local criminal defense attorney, who knows how the prosecutors and judges involved in your case typically handle such cases, can assist with these negotiations. And if you decide to go to trial, having a good lawyer in your corner will be essential.